Order                                                                        Michigan Supreme Court
                                                                                   Lansing, Michigan

  June 24, 2011                                                                      Robert P. Young, Jr.,
                                                                                               Chief Justice

  138260(36)                                                                         Michael F. Cavanagh
                                                                                           Marilyn Kelly
                                                                                     Stephen J. Markman
                                                                                     Diane M. Hathaway
  DANIEL WIEDYK,                                                                         Mary Beth Kelly
           Plaintiff-Appellant,                                                          Brian K. Zahra,
                                                                                                    Justices
  v                                                       SC: 138260
                                                          COA: 280214
                                                          Midland CC: 06-009751-NI
  JOHN PAUL POISSON and TRAVERSE
  CITY LEASING, d/b/a HERTZ,
             Defendants-Appellees.
  _________________________________________/

         On order of the Court, the motion for reconsideration of this Court’s December 1,
  2010 order is considered, and it is DENIED, because it does not appear that the order was
  entered erroneously.

          YOUNG, C.J. (concurring).

         We have reached the point again where the Legislature must speak if it wishes to
  preserve the no-fault act’s compromise between the provision of quick, generous
  insurance benefits without proof of fault and the act’s restrictions on access to additional
  tort recovery. No one actually attempts to justify having both the most generous
  automobile insurance benefits in the nation and a tort system where virtually any auto
  injury would satisfy the noneconomic damages exception to no-fault. Yet, while Kreiner
  v Fischer1 preserved that distinction, McCormick v Carrier2 ignored and eliminated it.

         Even though I joined and continue to subscribe to Justice MARKMAN’s dissenting
  opinion in McCormick, I concur in this Court’s decision to deny defendant’s motion for
  reconsideration from our order remanding this case in light of McCormick, wherein
  defendant asks this Court to reconsider whether McCormick was correctly decided. I
  write to emphasize Justice MARKMAN’s concerns that “[b]y nullifying the legislative
  compromise, which was grounded in concerns over excessive litigation, the

  1
      471 Mich 109 (2004).
  2
      487 Mich 180 (2010).
                                                                                         2

overcompensation of minor injuries, and the availability of affordable insurance, the
Court’s decision [in McCormick] will resurrect a legal environment in which each of
these hazards reappear and threaten the continued fiscal integrity of our no-fault
system.”3 As I noted in my original concurrence to the remand in this case, the factual
scenario presented here brings to life these concerns.4

        The reappearance of these hazards that threaten the viability of Michigan’s no-
fault system does not represent a new development. In Kreiner v Fischer, we thoroughly
traced the development of this Court’s caselaw interpreting MCL 500.3135’s provisions
governing when a no-fault plaintiff may recover noneconomic damages.5 From this
rocky history, two trends emerge and are noteworthy in consideration of this case. First,
this Court’s interpretation of the threshold standard for noneconomic recovery, MCL
500.3135, has not been consistent for more than a thirty-year span. Even more troubling,
the changed interpretations articulated in DiFranco v Pickard6 and McCormick
represented a significant departure away from the interpretation that enforced the
Legislature’s strict requirements. Second, in response to these changing interpretations,
the Legislature has found it necessary to amend the language used in this statute as the
means of compelling Michigan courts to enforce its stated intent limiting noneconomic
recovery.7



3
    McCormick, 487 Mich at 227 (MARKMAN, J., dissenting).
4
    See Wiedyk v Poisson, ___ Mich ___ (2010) (YOUNG, J., concurring).
5
  Kreiner, 471 Mich at 114-122; see also McCormick, 487 Mich at 233-259 (MARKMAN,
J., dissenting).
6
    427 Mich 32 (1987).
7
  In 1995, the Legislature enacted a bill that amended MCL 500.3135. The purpose of
this bill was to “modify tort liability arising out of certain accidents.” The necessity of
this bill arose only because this Court’s decision in DiFranco v Pickard, 427 Mich 32
(1986), discarded the then-controlling standard implementing the Legislature’s
limitations on recovery. The DiFranco majority overruled Cassidy v McGovern, 415
Mich 483 (1982), which was still cooling on the presses. The Legislature’s 1995
amendments reinstituted Cassidy nearly in its entirety as the governing standard. As the
McCormick dissent astutely noted, the McCormick majority reinstituted what essentially
amounted to the DiFranco test, notwithstanding the fact that the Legislature made clear
that DiFranco did not reflect the policy of this State. See McCormick, 487 Mich at 239-
240 (MARKMAN, J., dissenting).
                                                                                             3

         It is a particularly unfortunate development when the Legislature must act to
countermand a decision of the Supreme Court where this Court refused to enforce the
unambiguous language used in the no-fault statute after a prior corrective legislative
amendment. The deconstruction of the Legislature’s work product that took place in
McCormick is strikingly similar to the deconstruction DiFranco achieved in the past that
also necessitated a legislative correction. Demonstrating that history truly does repeat
itself, I find it difficult to improve on what this Court stated nearly 30 years ago: “If every
case is subject to the potential of litigation on the question of noneconomic loss, for
which recovery is still predicated on negligence, perhaps little has been gained by
granting benefits for economic loss without regard to fault.”8

        Kreiner provided an accurate construction that appropriately enforced the clear
language of MCL 500.3135. Equally as important, Kreiner recognized that these
provisions affect every Michigan driver due to the mandatory nature of no-fault
automobile insurance. Thus, this Court’s duty to apply consistently the Legislature’s
policy choices takes on particular importance because of the direct impact that the
Court’s decisions have on such a substantial number of Michigan’s citizens. McCormick
has now undone much of this, and as a result produced a regime of seemingly unlimited
liability that will require courts to wrestle with the question of what constitutes a “serious
impairment of body function.”9 Accordingly, courts may now find compensable in tort
as a matter of law routine injuries not intended by MCL 500.3135 to be compensated
beyond the full panoply of benefits otherwise conferred by the no-fault act.

        I encourage the Legislature to judge for itself whether the current interpretation
provided in McCormick for what constitutes a “serious impairment of body function” is
truly the interpretation it originally contemplated. Should the Legislature determine that
McCormick undermines the “grand compromise” of Michigan’s unique no-fault act, as I
believe it does, that body may find it necessary to correct this Court’s McCormick
construction that, in my opinion, fails to give meaning to the Legislature’s policy choices.

        CAVANAGH, J. (concurring).


8
    Cassidy v McGovern, 415 Mich 483, 500 (1982).
9
  It is impossible to conceive that, when the Legislature chose the language “death,
serious impairment of body function, or permanent serious disfigurement” as the
threshold standard for noneconomic recovery, a majority of this Court would hold, as a
matter of law, that an impairment of a body function that merely “influences some of the
plaintiff’s capacity to live in his or her normal manner of living” meets the statutory
threshold. See McCormick, 487 Mich at 215 (emphasis added). In McCormick, plaintiff
broke his ankle.
                                                                                          4

       I concur in the order denying defendants’ motion for reconsideration. I write only
to respond to Chief Justice YOUNG’s concurrence, in which he attacks this Court’s recent
opinion in McCormick v Carrier, 487 Mich 180 (2010).

        Impassioned hyperbole aside, an unbiased reading of McCormick aptly illustrates
that McCormick did not resuscitate DiFranco v Pickard, 427 Mich 32 (1986), nor did it
turn a blind eye to the will of the Legislature.10 Indeed, McCormick’s analysis faithfully
applied the clear and unambiguous language of MCL 500.3135. As evidenced by
McCormick’s analysis, McCormick fully recognized the Legislature’s adoption of
Cassidy v McGovern, 415 Mich 483 (1982), where the Legislature indicated an intent to
do so through the statute’s text and, similarly, “reinstituted” DiFranco only where the
statute’s text actually indicated a legislative intent to do so. McCormick, 487 Mich at
220. See, also, id. at 191, 197-198, 199, 203, 221-222. Thus, as plainly evidenced by
McCormick’s scrupulous statutory interpretation, McCormick applied the text of the
statute, even where it conflicted with the principles announced by the DiFranco majority.
I enthusiastically invite readers and the Legislature to review the full text of McCormick
to determine the accuracy of Chief Justice YOUNG’s claim that McCormick essentially
represents a mere reinstatement of DiFranco.

        Not surprisingly, the Chief Justice hypothesizes that McCormick will disrupt the
Legislature’s policy choices and lead us to a parade of horribles. I do not disagree that
the no-fault system was designed to remedy certain problems associated with the
traditional tort system in the context of automobile accidents. McCormick, 487 Mich at
189-190. Nevertheless, the no-fault act permits injured persons to potentially recover
noneconomic losses in tort when certain statutory requirements are met. And, as I stated
before, because McCormick is, in my opinion, truer to MCL 500.3135’s actual text,
McCormick more accurately reflects the Legislature’s policy considerations than that of
McCormick’s predecessors. McCormick, 487 Mich at 214 & n 26.

       McCormick simply acted to align this Court’s interpretation of MCL 500.3135
with the statute’s text and, as a result, did not eliminate the statute’s threshold standard

10
   The other concurring statements in this case are mainly mere repetitions of arguments
presented in McCormick, which were thoroughly considered and rejected by the
McCormick majority. 487 Mich at 219-222. As I explained in McCormick, the
McCormick dissent provided little substantive disagreement or criticisms of McCormick’s
statutory interpretation and, where the dissent actually addressed McCormick’s
substantive analysis, its criticisms were often based on misunderstandings or
overgeneralizations of the opinion’s holdings. Id. at 219-220. Today, the concurrences’
rehashing of their mistaken characterizations of McCormick amount to nothing more than
yet another attempt to distract courts, parties, and now the Legislature, from
McCormick’s interpretation of MCL 500.3135’s actual text. Id. at 222.
                                                                                           5

for noneconomic recovery. Indeed, at least according to the McCormick dissent, the main
dispute between the majority and the dissent was whether Kreiner’s temporal
requirement was rendered wholly irrelevant by McCormick, but that is clearly not the
case. Cf. McCormick, 487 Mich at 220 n 36; id. at 254 (MARKMAN, J., dissenting).
McCormick simply recognized that the statute does not expressly contain a specific
temporal or permanency requirement. Thus, as explained in McCormick, there is simply
no basis to conclude that temporal considerations are irrelevant or that a momentary
impairment is sufficient under McCormick’s interpretation of MCL 500.3135. Id. at
222.11 Accordingly, just as the no-fault system did not cease before Kreiner, I doubt that
it will do so in light of McCormick.

       MARILYN KELLY, J., joins the statement of CAVANAGH, J.

       MARKMAN, J. (concurring).

        I concur in the Court’s order because remanding a case to the trial court for
reconsideration in light of new caselaw is typically the preferred course of action where
the trial court has issued a decision in accordance with caselaw that was applicable at the
time of the decision, but is no longer applicable. However, I write separately to respond
to the Chief Justice’s statement in which he asserts that “we have reached the point again
where the Legislature must speak if it wishes to preserve the no-fault act’s compromise . .
. .”

       First, I believe it is premature to decide whether this Court should or should not
preserve this compromise by reconsidering existing caselaw, in this instance McCormick
v Carrier, 487 Mich 180 (2010). Neither the trial court nor the Court of Appeals has had
an opportunity in this case to apply McCormick. The lower courts have only determined
that plaintiff cannot satisfy the “serious impairment” standard of Kreiner v Fischer, 471
Mich 109 (2004). If, on remand, the lower courts determine that plaintiff also cannot
satisfy the “serious impairment” standard of McCormick, then there will be no need at
that juncture to reconsider McCormick. I would wait until this Court is confronted with a
case in which Kreiner and McCormick compel different outcomes before concluding that


11
   After a plain reading of McCormick, it is clear that the Chief Justice’s efforts to
minimize the McCormick plaintiff’s injuries require some shading of the facts. And, to
the extent that the Chief Justice implies that a “broken ankle” is not a sufficiently serious
injury to meet the statutory threshold, I would simply note that the threshold inquiry
requires focusing on, among other things, how much the impairment affects the person’s
ability to lead his or her normal life, which requires a subjective, person- and fact-
specific inquiry. McCormick, 487 Mich at 202. And the statute simply “requires that a
person’s general ability to lead his or her normal life has been affected, not destroyed.”
Id. (emphasis in original).
                                                                                          6

this Court is no longer prepared to interpret what the Legislature meant by its “serious
impairment” standard until the Legislature has “spoken” again.

       Second, where this Court has been confronted with the question whether to
reconsider a precedent, it has been our past practice to address this question by assessing
the factors set forth in Robinson v Detroit, 462 Mich 439 (2000). I would determine
whether McCormick should be reconsidered only after the Robinson factors have been
fully evaluated.

        Finally, given the Chief Justice’s accurate summation of the history of the “serious
impairment” standard, it is not clear what is to be achieved by imposing upon the
Legislature the obligation to again “speak” its intentions concerning our no-fault laws.
As the Chief Justice himself recognizes, the Legislature has already done this repeatedly,
and, just as repeatedly, has been reversed by this Court. The Legislature has twice
effected compromises, and twice had these compromises reversed by this Court.
McCormick; DiFranco v Pickard, 427 Mich 32 (1986). How many times does the
Legislature have to say “we told you we mean a serious impairment” before this Court is
prepared to interpret a serious impairment as requiring a serious impairment? Why is it
now the Legislature’s “turn” to ”speak,” rather than that of the judiciary, which is
charged with saying what the laws of the Legislature mean? Why exactly does the
Legislature have to act more than once, or twice, before this Court is prepared to follow
its direction? Legislative compromises are often very difficult things to achieve in a large
and diverse representative body, and it should not be underestimated just how difficult it
is for the Legislature to reenact at will the kind of comprehensive legal reform that it
would now have to re-re-enact, before this Court is prepared to exercise its traditional
“judicial power.” These are questions that should be seriously reflected upon by this
Court, but only if, and when, this case returns to this Court following our remand.

       As the dissenting justices observed in McCormick:

               [T]he majority’s decision will almost certainly call into question the
       long-term economic integrity of the present no-fault system in Michigan.
       By nullifying the legislative compromise that was struck when the no-fault
       act was adopted—a compromise grounded in concerns over excessive
       litigation, the over-compensation 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 soundness of our no-fault system. [487 Mich at 286-287.]

       Because I continue to believe that McCormick constitutes a flawed interpretation
of the law, and because McCormick reverses a compromise of the Legislature seeking to
balance reasonable and expedited insurance benefits with reduced tort litigation and
reasonable insurance premiums, I would wait until the issues in this case are properly
                                                                                                               7

before this Court, before we consider apprising the Legislature that this Court will no
longer exercise its traditional judicial authority to “say what the law is” in the context of
one of the most far-reaching and consequential of our state’s statutes.

       I am fully cognizant of the risks of “teeter-totter” justice implicated by this case,
and abhor this, but this Court must seriously reflect upon whether such “teeter-tottering”
is always to stop in a position that preserves decisions of this Court that are the most
resistant to the repeatedly expressed will of the Legislature.




                         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.
                         June 24, 2011                       _________________________________________
       d0621                                                                 Clerk
