Order                                                                         Michigan Supreme Court
                                                                                    Lansing, Michigan

  August 20, 2009                                                                           Marilyn Kelly,
                                                                                                Chief Justice

  136738(46)(50)(53)                                                                  Michael F. Cavanagh
                                                                                      Elizabeth A. Weaver
                                                                                       Maura D. Corrigan
                                                                                      Robert P. Young, Jr.
  RODNEY MCCORMICK,                                                                   Stephen J. Markman
          Plaintiff-Appellant,                                                        Diane M. Hathaway,
                                                                                                     Justices
  v                                                        SC: 136738
                                                           COA: 275888
                                                           Genesee CC: 06-083549-NI
  LARRY CARRIER,
           Defendant,
  and
  ALLIED AUTOMOTIVE GROUP, INC.,
  indemnitor of GENERAL MOTORS
  CORPORATION,
               Defendant-Appellee.
  _________________________________________/

         On order of the Court, the motions for leave to file briefs amicus curiae are
  GRANTED. The motion for reconsideration of this Court’s October 22, 2008 order is
  considered, and it is GRANTED. We VACATE our order dated October 22, 2008. On
  reconsideration, the application for leave to appeal the March 25, 2008 judgment of the
  Court of Appeals is considered, and it is GRANTED.

         WEAVER, J. (concurring).

         I concur fully in the order granting reconsideration and leave to appeal in this case.
  I write separately to respond to the dissent’s statements regarding the decision to grant
  reconsideration in this case.

         The dissent erroneously asserts that the justices voting to grant reconsideration do
  so improperly. The dissent cites Peoples v Evening News Ass’n, 51 Mich 11, 21 (1883),
  for the proposition that this Court is precluded from granting rehearing or reconsideration
  when the composition of the Court has changed, absent any new arguments from the
  parties in the case. However, contrary to the dissent’s assertions, this Court merely stated
  in Peoples that a change in the composition of this Court cannot be the basis for granting
  rehearing or reconsideration.
                                                                                           2

       As such, if the composition of the Court changes, and the composition becomes
such that a majority of the Court sees a reason to grant reconsideration, the majority is
not precluded from granting reconsideration. If, for instance, four justices on the newly
composed Court conclude that the challenged decision was erroneous, those justices can
vote to grant reconsideration. The same holds true whether the deciding vote is a new
justice who joined the Court after the challenged decision was released or the deciding
vote comes from a justice who voted for the challenged decision and changed his or her
mind after further consideration.

        This practice is consistent with MCR 2.119(F)(3), which creates a “palpable error”
standard for rehearing and reconsidering cases. It is up to the moving party to show
palpable error that would lead to a different disposition in the case. If a majority of the
Court is convinced by the moving party, the Court has the discretion to grant rehearing or
reconsideration. Furthermore, while MCR 2.119(F)(3) states that a motion for
reconsideration generally will not be granted if the motion only presents the same issues
ruled on in the original decision in the case, MCR 2.119(F)(3) explicitly refrains from
“restricting the discretion of the court” to grant reconsideration.

        Accordingly, I concur in the order to grant reconsideration and leave to appeal.

        CORRIGAN, J. (dissenting).

       Seeking reconsideration, plaintiff calls on this Court to overturn our decision in
Kreiner v Fischer, 471 Mich 109 (2004), which discusses the no-fault tort threshold,
MCL 500.3135, of the Michigan automobile no-fault act, MCL 500.3101 et seq. On
October 22, 2008, in a four to three decision, a majority of this Court denied plaintiff’s
application for leave to appeal the Court of Appeals decision,1 which, consistently with
the principles of Kreiner, had resolved the case in defendants’ favor.2 Now, although
neither the law nor the facts of his case have changed, plaintiff seeks reconsideration of
our order. He and his amici seek to take advantage of the intervening change in this
Court’s membership to reopen an otherwise final case. They have succeeded. This Court
now grants reconsideration in a new four to three vote where former Chief Justice
Clifford Taylor’s vote to deny leave, consistent with Kreiner, is now supplanted by newly
elected Justice Hathaway’s vote to grant reconsideration and grant leave to appeal.




1
    McCormick v Carrier, 482 Mich 1018 (2008).
2
 McCormick v Carrier, unpublished opinion per curiam of the Court of Appeals, issued
March 25, 2008 (Docket No. 275888).
                                                                                                               3


       As my colleagues have observed in other recent cases,3 I wish only to reemphasize
that the practice of reconsidering final orders due merely to a change in the Court’s
composition runs afoul of the historical principles and precedent of this Court.4 As is
particularly applicable here, in Peoples v Evening News Ass’n, 51 Mich 11, 21 (1883),
this Court explicitly and unanimously concluded that “a rehearing will not be ordered on
the ground merely that a change of members of the bench has either taken place, or is
about to occur.”

       For these reasons I reiterate the call for caution in the wake of our recently
reconstituted Court. I would not grant reconsideration of this otherwise final case or
overrule the Court’s 2004 Kreiner decision, which sought to bring clarity and finality to a
very complex area of law.5




3
  I note in particular Justice Young’s recent dissent to the order granting reconsideration
in Univ of Michigan Regents v Titan Ins Co, ___ Mich ___ (Docket No. 136905, order
entered July 31, 2009).
4
  E.g., Nichols, Shepard & Co v Marsh, 62 Mich 439, 440 (1886) (“We discover no point
which was not presented and considered on the original argument, and nothing, therefore,
to call for a rehearing which would not authorize a similar application in any case where
the opinion disappoints one or the other of the parties, as it must do inevitably.”); cf.
Thompson v Jarvis, 40 Mich 526 (1879).
5
 The Kreiner opinion helpfully recounts in detail the unstable nature of the statutory and
common law governing the no-fault tort threshold from 1973 to 2004. Id. at 114-121.



                         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.
                         August 20, 2009                     _________________________________________
       p0818                                                                 Clerk
