Order                                                                         Michigan Supreme Court
                                                                                    Lansing, Michigan

  December 2, 2011                                                                   Robert P. Young, Jr.,
                                                                                               Chief Justice

  143287 & (7)                                                                        Michael F. Cavanagh
                                                                                            Marilyn Kelly
                                                                                      Stephen J. Markman
                                                                                      Diane M. Hathaway
                                                                                          Mary Beth Kelly
  IN RE CERTIFIED QUESTION FROM THE                                                       Brian K. Zahra,
  UNITED STATES DISTRICT COURT FOR                                                                  Justices
  THE EASTERN DISTRICT OF MICHIGAN

  ____________________________________/

  LIGHTHOUSE NEUROLOGICAL
  REHABILITATION CENTER, INC.
  and HURLEY MEDICAL CENTER,
                Plaintiffs,
  v                                                        SC: 143287
                                                           US Dist Court: 10-10154-BC
  ALLSTATE INSURANCE COMPANY,
                Defendant.

  ____________________________________/

         On order of the Court, the motion for leave to file brief amicus curiae is
  GRANTED. The questions certified by the United States District Court for the Eastern
  District of Michigan are considered, and the Court respectfully declines the request to
  answer the certified questions.

         YOUNG, C.J. (concurring).

          I decline to answer the questions certified by the United States District Court for
  the Eastern District of Michigan because I believe that Michigan Court of Appeals’
  caselaw1 has correctly construed MCL 500.3105(4) to require that an injured person
  subjectively intend the injury, not merely the act, in order for an insurer to be relieved of
  its obligation to pay personal protection insurance benefits. MCL 500.3105(4) states:

  1
   See, for example, Frechen v Detroit Auto Inter-Insurance Exchange, 119 Mich App 578
  (1982); Mattson v Farmers Ins Exchange, 181 Mich App 419 (1988); Bronson Methodist
  Hospital v Forshee, 198 Mich App 617 (1993). This construction of this statute has
  prevailed in Michigan for nearly thirty years.
                                                                                            2


       Bodily injury is accidental as to a person claiming personal protection
       insurance benefits unless suffered intentionally by the injured person or
       caused intentionally by the claimant. Even though a person knows that
       bodily injury is substantially certain to be caused by his act or omission, he
       does not cause or suffer injury intentionally if he acts or refrains from
       acting for the purpose of averting injury to property or to any person
       including himself.

        The first sentence of the statutory provision clearly indicates that bodily injury is
accidental “unless suffered intentionally by the injured person….” It is the injury that
must be intentional, as the first sentence of the statute simply does not contemplate the
injury-causing act or omission. The second sentence of the statutory provision is not an
exception to the broad proclamation contained in the first sentence, but merely describes
an injury that continues to be “accidental” under the No-Fault Act. Where a “person
knows” that bodily injury is “substantially certain” to be caused by his actions, but he
acts “for the purpose of averting injury to property or to any person,” the resulting injury
is not intentional.2

       I see no basis to conclude that an injury is suffered intentionally, and that personal
protection insurance benefits may be denied, where a person engages in an intentional act
where injury is substantially certain to occur. Because I believe that Michigan Court of
Appeals’ caselaw accurately interprets the statutory provision, I respectfully decline to
answer the certified questions.

       Finally, I wish to respond to the dissenting Justice’s suggestion that the decision
from the federal district court judge construing this statute “will effectively become the
law of this state.” I concede that the federal judge has indicated that he might be inclined
to ignore our published Court of Appeals precedent. However, contrary to the dissent’s
assertion, if the federal district court chooses to ignore the accurate interpretation of the
2
  Indeed, if there were any question regarding whether Mr. Carter’s injuries were
intentionally inflicted, the second sentence of the statutory provision appears to squarely
apply to the facts of this case. According to the deposition testimony of a disinterested
eyewitness, Mr. Carter’s girlfriend intentionally attempted to hit him with her
automobile. Carter ran through a public park, a vacant lot, and a public street while being
chased by Ms. Whitley’s automobile before Carter climbed onto it in an effort to avoid
being struck by the automobile. The automobile abruptly accelerated and braked several
times in an effort to throw Carter off the vehicle. While Carter attempted to hang onto
the vehicle, his efforts were unsuccessful, resulting in his catastrophic injuries. Thus,
assuming arguendo that Carter knew that his act of climbing onto his girlfriend’s car was
“substantially certain” to result in the severe head injuries sustained, his actions appear to
have been taken for the very purpose of self-preservation and averting injury to himself.
                                                                                           3

statutory provision provided by Michigan Court of Appeals caselaw, such a decision will
affect only the parties in that federal case. Until this Court overrules or modifies the
relevant Court of Appeals caselaw, all Michigan courts are obligated to follow it. See
MCR 7.215(C) and (J)(1).

       This legal fact alone explains why this Court should not expend its limited
resources in an attempt to accommodate a federal court judge – even one that indicates
that he might be unwilling to follow caselaw that is binding on every court in Michigan.

      MARKMAN, J. (dissenting).

        In dissenting from this Court’s increasingly regular decisions not to certify
questions from the federal courts, I can do little except to repeat my concerns as to the
cost of such decisions for sound constitutional government and the interests of Michigan
and its citizens.

              When this Court, as it now does, refuses to answer a question
      certified to it by a federal court, the following consequences arise: (a) we
      undermine the interests of the people of this state in having significant
      questions of Michigan law resolved by courts which are accountable to the
      people of this state; (b) we erode the sovereign interests of this state in
      retaining control over the interpretation of its own laws, and transfer such
      control to a lower court of a different sovereign; (c) we weaken our system
      of judicial federalism in which even in those cases in which a federal court
      is authorized to apply state law, such court is obligated to defer to state
      court interpretations of that law; (d) we place Michigan on an unequal
      footing with the majority of other states of the Union whose highest courts
      routinely answer certified questions and which employ the certification
      process as one important means by which to maintain the sovereign
      institutions and interests of their states; and (e) we fail to demonstrate
      comity and cooperation with a federal court, which is acting in the
      circumstances to show respect for the role of the state judiciary in giving
      authoritative meaning to the laws of its own state.

               The upshot of the majority’s decision will be that an undecided, and
      significant, question of Michigan law will be decided, not by a judicial
      body established under the Constitution of this state, not by a judicial body
      accountable to the people of this state, and not by a judicial body comprised
      of judges selected by the people of this state, but by a federal district court
       . . . . And when the decision of that district court is finally rendered, it will
      not be only the litigants in that case who will be affected by our failure to
      have exercised our responsibility to maintain the integrity of our state
      institutions, but it will be the “general citizenry of Michigan, which in order
                                                                                           4

       to avoid litigation will tend to conform their conduct to what they
       understand as current law [of Michigan], the law of the federal court[.]” In
       re Certified Question, 472 Mich 1225, 1238 (2005) (MARKMAN, J.,
       dissenting). Unlike the great number of federal judicial decisions over
       recent decades that have tended to weaken the role of state judiciaries
       relative to their federal counterparts, today’s weakening of judicial
       federalism is the result, not of a federal court decision, but of a state court
       decision. It is an entirely self-inflicted wound. [In re Certified Question,
       489 Mich 870 (2011) (MARKMAN, J., dissenting).]

        These concerns are especially pronounced in the instant case in which the federal
district court has certified the question, yet in which there is a reasonably clear line of
Michigan Court of Appeals precedents. See MCR 7.305(B)(1) (a federal court may
certify a question to this Court “that Michigan law may resolve and that is not controlled
by Michigan Supreme Court precedent”) (emphasis added). Thus, although the
concurring justice himself believes that “Michigan Court of Appeals’ caselaw has
correctly construed” the law in dispute, it now seems reasonably likely that a decision
will ultimately emerge from the federal court that by the concurring Justice’s own lights:
(a) is not in accord with the law of this state; (b) yet will effectively become the law of
this state; and (c) will effectively become the law of this state, not by any decision of a
court charged under the United States Constitution with authoritative jurisdiction over the
interpretation of Michigan law, but by a decision of a federal court which has
unsuccessfully sought out by its certified question the guidance of the highest court of
this state.

        Here, the federal district court is acting in accordance with federal law in not
necessarily deferring to Michigan Court of Appeals precedents. See Dale Baker
Oldsmobile, Inc v Fiat Motors of North America, 794 F2d 213, 218 (CA 6, 1986) (federal
courts are “not bound by a decision of an intermediate state appellate court when [they]
are convinced that the highest state court would decide differently”). The federal district
court has stated that it “is not obligated to follow Michigan Court of Appeals’
interpretation of the statute,” but rather must undertake a “considered educated guess as
to what conclusion would most likely be reached on the issue by the Michigan Supreme
Court,” and “it is far from clear that the Michigan Supreme Court, if it were to consider
the issue, would adopt the Court of Appeals’ [precedents].” In my judgment, the district
court is acting responsibly, and respectfully toward the judicial system of this state, in
attempting to avoid such speculation by certifying the present question. Indeed, it is
demonstrating greater respect for the values of judicial federalism than is this Court itself
in rejecting such certification.

      Which tribunal is in a better position to decide whether this Court would, in fact,
decide the certified question differently than the Court of Appeals—the federal district
court or this Court? And which tribunal is in a better position to give meaning to
                                                                                                                5

Michigan law—the federal district court or this Court? Because I believe, as does the
federal district court itself, that the answer to both of these questions is clearly this Court,
I would grant the federal court’s request to answer the certified question.




                          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 2, 2011                    _________________________________________
        h1129                                                                 Clerk
