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McCormick, Michigan auto accident law survives… for now

Car accident victims, injury lawyers, dodge a bullet

Last week could have been the week that Michigan injury lawyers, insurance companies, and hundreds of others have been watching and waiting for. Last week, McCormick v. Carrier could have been overturned. Instead, in two auto accident cases that went up to the “new” Michigan Supreme Court — the first such cases since the November election in which the Republicans retook the highest court — the court took a pass. Those two cases were Wiedyk v. Poisson and Brown v. Blouir.

Here’s my 2 cents as to why.

There are a couple things going on that best explains the Michigan Supreme Court’s new Republican majority punting the football on auto accident cases. One, which I think is the real reason, is the general level of cynicism among Michigan lawyers and the bench, that the judicial process in this state is now badly broken. Specifically, all lawyers believe (and trust me, the injury lawyers in this state have a lot of reasons to believe this) that the process of electing judges and justices has become way too partisan.

A number of judges on the Michigan Court of Appeals had privately predicted to me that the court would take a pass. There was a general feeling among almost everyone that if the court whipsawed back to a Kreiner v. Fischer standard so soon after November’s election that changed the court for the second time in as many elections, and just months after McCormick v. Carrier was decided, that it would look too cynical.

There is a need to not completely abandon lawyers’ belief in the judicial process and in the role of stare decisis in particular. Stare decisis is the legal principle by which judges are obliged to respect past rulings of prior court decisions.

I realize this is lawyer speak, and stare decisis may not mean much to the average (or as I like to say of non-lawyers, normal person), but the concept of stare decisis is extremely important to lawyers and judges. To change our auto accident threshold law in Michigan so quickly (just after an election when the last Michigan Supreme Court just decided the very same issue), would open up the Michigan Supreme Court to charges that it has been bought and paid for by special interests – in this case the insurance companies – from the last election. That may be true, and the court may be biding its time, but there was no basis for it to change the auto accident law so quickly now.

As even Justice Markman (who was one of the justices who (cynically) signed onto the Kreiner v. Fischer decision), put it in last week’s cases, overturning McCormick v. Carrier is just too premature. It is too soon for the court to act. There are no cases or evidence of abuse at this time, and there have been no cases decided under McCormick at present that would serve as examples of the type of frivolous auto accident tort case that the insurance company propaganda people and the fear-mongers warned would clog up the courts in the days after McCormick was decided.

Michigan auto accident cases Wiedyk v. Poisson and Brown v. Blouir

In last week’s Michigan Supreme Court order Wiedyk v. Poisson, there is almost no factual record as to the underlying injuries of the plaintiff. And in the second case, Brown v. Blouir, the plaintiff suffered a serious back injury that included ruptured spinal discs, and treatment that included physical therapy, spinal nerve block injections and prescription pain medication. In other words, hardly the facts that someone would shake their head and say the auto accident law in Michigan is broken and needs to be fixed.

As a Michigan attorney who only handles car accident, truck accident, and motorcycle accident cases, what was most disappointing from the opinions was Chief Justice Young’s dissents. I’ve written before about Justice Robert Young Jr., and while I will always respect the robe, I have little regard for his opinions as a jurist. It is hardly surprising that our chief justice – even though he is a self-proclaimed “textualist” who campaigned that judges are required to give strict statutory construction and respect to the plain meaning of statutes – chose to write a dissent in these two auto accident threshold cases on public policy grounds.

Justice Young completely ignored the textualist arguments of Justice Cavanaugh, that McCormick v. Carrier was faithfully applying the clear and unambiguous statutory language that the (Republican) Michigan Legislature chose in 1995, by removing the extra-judge-created additional language from the Kreiner v. Fischer decision. Instead, Justice Young chose to dissent that the “grand compromise” of the Michigan No-Fault Act is in jeopardy by the McCormick v. Carrier decision. Of course, as Justice Markman points out, Justice Young is unable to provide any factual support for his argument.

Those cynics amongst us might think that Justice Young was simply attempting to find the result he wanted, and that he was acting in an overtly partisan, ideological way in complete disregard of the concept of stare decisis.

Meanwhile, the Michigan auto accident threshold injury law, and McCormick v. Carrier, continues to survive.

Steve Gursten is one of the nation’s top injury lawyers. He is head of Michigan Auto Law and has received the highest verdict in the state for a car accident or truck accident victim in 2008, 2009 and 2010, according to Michigan Lawyers Weekly.

Related information to protect yourself:

McCormick v. Carrier FAQs

Michigan Supreme Court releases McCormick, overturns Kreiner v. Fischer

How will the new Legislature affect personal injury victims

Michigan Auto Law is the largest law firm exclusively handling car accident, truck accident and motorcycle accident cases throughout the entire state. We have offices in Farmington Hills, Detroit, Ann Arbor, Grand Rapids and Sterling Heights to better serve you. Call (800) 777-0028 for a free consultation with one of our injury lawyers.

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