MSC: McCormick lives, for now

In our current issue, we have a 25-year retrospective look at the Michigan No-fault Act, a large part of which was dedicated to the instability in third-party injury threshold. All of the attorneys we spoke with mentioned the instability as being severely detrimental. Some questioned, considering the reemergence of Republican control over the Michigan Supreme Court, whether another change would be coming.

This morning, in an order denying leave to hear Wiedyk v. Poisson and Brown v. Blouir the Court declined to consider whether its 2010 decision in McCormick v. Carrier, which ushered in the most recent change in the threshold inquiry, was correctly decided.

In a concurring opinion, Chief Justice Robert P. Young Jr. seemed to acknowledge the futility in playing legal tennis with the threshold inquiry and asked the Legislature to choose between McCormick and its predecessor, Kreiner v. Fischer.

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. Fischer  preserved that distinction, McCormick v Carrier 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.

Young compared the current situation to those of the mid-1990s, when the Court’s decision in DiFranco v. Pickard led the Legislature to pass a law to codify DiFranco’s predecessor, Cassidy v. McGovern.

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.”

Justice Stephen J. Markman concurred, essentially saying that now is not the time to reconsider McCormick, thus leaving open the idea that it might not be the case in the future.

Justice Michael F. Cavanagh also concurred, arguing that McCormick shouldn’t be reconsidered because it was correctly decided. This shouldn’t surprise anyone considering Cavanagh wrote the McCormick decision.

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