Order                                                                         Michigan Supreme Court
                                                                                    Lansing, Michigan

  December 1, 2010                                                                          Marilyn Kelly,
                                                                                                Chief Justice

  138260                                                                             Michael F. Cavanagh
                                                                                       Maura D. Corrigan
  DANIEL WIEDYK,                                                                      Robert P. Young, Jr.
                                                                                      Stephen J. Markman
           Plaintiff-Appellant,                                                       Diane M. Hathaway
                                                                                     Alton Thomas Davis,
  v                                                        SC: 138260                                Justices
                                                           COA: 280214
                                                           Midland CC: 06-009751-NI
  JOHN PAUL POISSON and TRAVERSE
  CITY LEASING, d/b/a HERTZ,
             Defendants-Appellees.
  _________________________________________/

         By order of August 20, 2009, the application for leave to appeal the January 6,
  2009 judgment of the Court of Appeals was held in abeyance pending the decision in
  McCormick v Carrier (Docket No. 136738). On order of the Court, the case having been
  decided on July 31, 2010, 487 Mich ___ (2010), the application is again considered and,
  pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we VACATE the
  judgments of the Court of Appeals and the Midland Circuit Court, and we REMAND this
  case to the trial court for reconsideration in light of McCormick.

         YOUNG, J. (concurring).

          I reluctantly concur in this Court’s order remanding this case for reconsideration in
  light of this Court’s recent decision in McCormick v Carrier, 487 Mich ___ (2010).
  Although I joined and continue to subscribe to Justice MARKMAN’s dissenting opinion in
  that case, McCormick now controls when a person may recover in tort for non-economic
  loss under the no fault act. The McCormick dissent astutely noted that “[b]y nullifying
  the legislative compromise that was struck when the no-fault act was adopted—a
  compromise grounded in concerns over excessive litigation, the overcompensation of
  minor injuries, and the availability of affordable insurance—the Court’s decision today
  will restore a legal environment in which each of these hazards reappear and threaten the
  continued fiscal integrity of our no-fault system.” The factual scenario presented in this
  case certainly brings to life these concerns and thus illustrates what is so troubling with
  the virtually standardless positions articulated in McCormick.

       In this case, prior to the most current accident for which plaintiff is seeking non-
  economic damages (which occurred in 2005), plaintiff had been involved in 10 prior
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accidents in the past 15 years, and those accidents occurred after he suffered a closed
head injury at work rendering him disabled since 1979. As a result, plaintiff had serious
medical injuries and ailments that rendered him seriously impaired for quite some time
before the present accident. The trial court specifically found that the medical records
made clear that previous events caused the ailments from which he suffered, and thus
plaintiff’s general ability to lead his normal life was not affected by the accident in
question here. Because this determination is a person- and fact-specific inquiry, courts
must recognize that plaintiff’s pre-accident lifestyle was sedentary and his activities were
highly restricted; this did not change after the 2005 accident. Thus, there is no causation
between the 2005 accident and plaintiff’s impairments because he was already seriously
impaired prior to this accident as a result of many other prior accidents, as even one of
plaintiff’s own physicians conceded. Plaintiff’s inability to show causation does not
change even on remand for consideration in light of McCormick.

       Nevertheless, because McCormick now governs the legal analysis that must be
employed when addressing these issues, I feel compelled to allow the trial court to
address this question anew. The majority’s decision in McCormick to strip MCL
500.3135 of any meaningful limitation by removing the statutory limitations imposed by
the Legislature produces a situation of seemingly unlimited liability that will require
courts to wrestle with the question of what constitutes a “serious impairment of body
function” without meaningful and defined guidance from their State’s senior Court.

       CORRIGAN and MARKMAN, JJ., join the statement of YOUNG, J.




                         I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         December 1, 2010                    _________________________________________
       d1124                                                                 Clerk
