New Mich. SC agrees to hear appeal old one did not

John O'Brien Sep. 3, 2009, 4:11pm


LANSING, Mich. (Legal Newsline) - With the makeup of the Michigan Supreme Court having changed, the newest Democratic justice has reversed a Republican vote that prevented hearing a case involving injured motorists who sue over pain and suffering.

Republican Justice Elizabeth Weaver supported the idea of rehearing the case, in which Rodney McCormick alleges a debilitating ankle injury as the result of having a co-worker back over it in a truck.

Justice Diane Hathaway defeated Clifford Taylor in last year's election to give Democrats a majority on the seven-person court. When Taylor was on the Court, it voted not to hear McCormick's appeal.

Hathaway's vote reversed that decision Aug. 20.

"The dissent erroneously asserts that the justices voting to grant reconsideration do so improperly. The dissent cites Peoples v Evening News Ass'n 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," Weaver wrote.

"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."

Pain and suffering claims are only allowed in auto accident lawsuits when the alleged victim has been killed, seriously disfigured or suffered a serious impairment of body function.

McCormick was ruled not to have qualified. He received his doctor's approval to go back to work a year after the accident.

McCormick, though, claims the injury changed the trajectory of his life.

"Now, although neither the law nor the facts of his case have changed, plaintiff seeks reconsideration of our order," Justice Maura Corrigan wrote in her dissent.

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 4-3 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."

Kreiner is a controversial 2004 decision that set the standards for a pain and suffering claim in an auto accident suit. Taylor authored the majority's opinion.

"I reiterate the call for caution in the wake of our recently reconstituted Court," Corrigan wrote.

"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."

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