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When will Justice Stephen Markman accept McCormick v. Carrier is the law?

January 7, 2019 by Steven M. Gursten

After Zichichi v. Mull, will Michigan Supreme Court Chief Justice Markman finally give up his one-man crusade to overrule McCormick v. Carrier?

When will Chief Justice Markman accept that McCormick v. Carrier is the law?

It’s strange that a self-proclaimed conservative jurist like Chief Justice Stephen J. Markman of the Michigan Supreme Court, who has claimed to be against “judicial activism” and “legislating from the bench,” is so quick to abandon these principles to overrule settled Supreme Court precedent.

It’s no secret that Chief Justice Markman loathes the Michigan Supreme Court’s landmark auto accident injury threshold ruling in McCormick v. Carrier.

First, a quick history lesson.

Once upon a time, a group of four justices on the Michigan Supreme Court, often referred to as the “Gang of Four,” wreaked havoc on our law.

These four justices, armed with an assortment of different dictionaries, would engage in all sorts ways to rule on cases based on politics rather than on precedent. They would call themselves strict statutory constructionists, but, in reality, they would engage in all sorts of judicial activism and outcome-determinative reasoning to find a result they wanted. See Exhibit A.

Nowhere was this judicial activism more obvious than in the ugly Kreiner v. Fischer case – a judicial travesty that caused several thousand completely innocent and injured car accident victims (including those with broken bones and extensive surgeries like spinal fusions and total knee replacements) to be thrown out of court.

In my blog post, “McCormick is ‘most compatible’ with Michigan’s No Fault law,” I criticized then-Justice Markman’s surprising move, explaining:

“What made Kreiner so bad, and so worthy of scorn by auto attorneys such as myself, is that it was clearly political. Instead of interpreting a very simple, unambiguous statutory definition of serious impairment of body function, Kreiner was an activist, outcome-oriented political decision. Its judge-made hurdles created for auto accident victims and their attorneys, found nowhere in the statute, represented a radical departure from the simple, unambiguous statutory definition created by the Michigan Legislature. It created additional very high legal hurdles, restrictions to legal recovery that aren’t found in the real world of medicine (physician-imposed restrictions being the most notorious) and added temporal and durational requirements for automobile accident victims seeking legal compensation for their pain and suffering.”

Kreiner v. Fischer was judicial activism on steroids.

In 2010, Kreiner was finally overturned. A new majority of justices returned Michigan law to a truer judicial interpretation of the No-Fault law’s “serious impairment of body function” threshold law, overruling the Court’s disastrous Kreiner decision from 2004.

But Markman wasn’t finished with Michigan’s auto accident threshold law just yet.

He penned a 64-page dissenting opinion in McCormick which concluded not with precedent and strict statutory construction, but with a doom-and-gloom prediction of what a post-Kreiner world of auto accident litigation in Michigan would be like.

Now, Chief Justice Markman will not let the McCormick issue die – despite the ruling having become settled law.

Even though none of his fellow justices share in his contempt for the Legislature’s statutory definition of Michigan’s auto accident threshold, and even though none of his predictions he made in his 64-page McCormick dissent have proved true, Chief Justice Markman still persists in calling for McCormick to be overturned by the Court.

Chief Justice Markman questions whether McCormick is ‘most compatible’ with No-Fault law

Most recently, Markman did so in the case of Patrick v. Turkelson, where the Michigan Court of Appeals concluded that, under McCormick, a jury – not a judge on a motion to dismiss – should determine whether a car crash victim’s hearing loss constituted a “serious impairment of body function” such that she would be entitled to pain and suffering compensation.

In a November 16, 2018, order, Chief Justice Markman conceded that the victim in Patrick satisfied “the no-fault act’s ‘serious impairment’ threshold for tort liability as construed by McCormick,” but then he went to insist that the victim would not have satisfied “the same threshold as construed by Kreiner.”

Based on that, he advocated for the Supreme Court to review the Patrick case so the justices could revisit whether McCormick and its overruling of Kreiner was actually the right thing to do:

“Therefore, this would seem to be an appropriate case in which to assess both McCormick and Kreiner, which set very different standards for tort liability, and to determine which of these standards is most compatible with MCL 500.3135.”

There are several problems with what Chief Justice Markman proposed in Patrick.

First, as a conservative justice who claims he is averse (to say the least) to any form of judicial activism, it makes no sense that he’s now proposing to overrule a long-standing, well-settled precedent of the Court. That is, there is  no reason at all, except that he wants to do so.

Although it may not be legally significant, it’s interesting that Chief Justice Markman wants to do away with McCormick even though it has already been the law of the state for two years longer than Kreiner was.

Second, by virtue of the justices’ ruling in McCormick, they established that their interpretation of the “serious impairment of body function” threshold was the “standard” that was “most compatible” with the statute as set out in the No-Fault law.

Third, none of the Chief Justice’s colleagues appear to doubt that the McCormick standard, rather than the Kreiner standard, is the one that’s “most compatible” with the No-Fault statute. Otherwise, they would’ve joined him in his dissent.

Chief Justice Stephen Markman really doesn’t like McCormick v. Carrier

His dissenting opinion in Patrick was not the first time that Chief Justice Markman has been the solitary voice making an out-of-left field call for overruling McCormick v. Carrier.

This judicial activism was also evident in an April 1, 2016, order in Hall v. Miko, where he voted for the Court to hear the case so the justices could:

“[C]onsider … [whether] this Court should overrule McCormick v. Carrier … and reinstate Kreiner v. Fischer …, which itself was overruled by McCormick.”

Zichichi v. Mull won’t provide Chief Justice with opportunity to overrule McCormick

Kreiner has been gone eight years now . . . thankfully. Hundreds, maybe thousands, of innocent and severely injured car accident victims in Michigan have been able to have their day in court and receive compensation for their injuries.

But “it ain’t over ‘til it’s over.”  Earlier this year in April, I started having flashbacks to Kreiner’s judge-made rules and requirements for car crash victims when the Michigan Court of Appeals handed down its abysmal ruling in Zichichi v. Mull.

As I wrote in my blog post about the case, “Zichichi v. Mull is worst example of ‘Judge made law,’ sows confusion for car accident attorneys and judges”:

“Rather than following and applying the law as they are required to do, one Wayne County trial judge and three appellate judges in Zichichi v. Mull decided to make up their own law. To do this, they created a completely new “judge made law” to ignore and disregard what the Michigan Supreme Court said in McCormick v. Carrier so they could throw out a serious car accident injury lawsuit involving multiple fractures, a surgery, screws implanted into bone, and a closed head injury.”

Fortunately, the Michigan Supreme Court declined to hear the Zichichi v. Mull case in its October 30, 2018, order denying leave to appeal.

As a result, the Court of Appeals unpublished opinion applied only to the parties in the case and carries no precedential value for other courts, meaning that neither trial courts nor the Court of Appeals is bound by the opinion’s holding or its reasoning.

If only one could say the same for Justice Markman.

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