Order Michigan Supreme Court 

Lansing, Michigan 

January 12, 2007 Clifford W. Taylor,

 Chief Justice 

Michael F. Cavanagh 

Elizabeth A. Weaver 129689 

Marilyn Kelly 

Maura D. Corrigan 

Robert P. Young, Jr. DONNA KROON-HARRIS, Stephen J. Markman, Plaintiff-Appellee, Justices 

v SC: 129689 

 COA: 261146 

Court of Claims: 04-000078-MK 

STATE OF MICHIGAN, 

Defendant-Appellant. 

_________________________________________/ 

On November 1, 2006, the Court heard oral argument on the application for leave 

to appeal the July 14, 2005 judgment of the Court of Appeals. On order of the Court, the 

application is again considered. MCR 7.302(G)(1). In lieu of granting leave to appeal, 

we REVERSE the judgment of the Court of Appeals and REINSTATE the order of the 

Court of Claims that dismissed plaintiff's complaint with prejudice. The long-term 

disability policy was provided by a group insurance plan approved by the Civil Service 

Commission. Pursuant to the terms of Civil Service Regulation 5.18, if the plaintiff felt 

aggrieved by a decision of an administrator of a group insurance plan, she was required to 

complain under the exclusive procedure set forth in that regulation. Her failure to 

exhaust administrative remedies precludes the possibility of relief outside the 

promulgated procedure. Further, any appeal from the Civil Service Commission lies in 

the appropriate circuit court, not the Court of Claims. Const 1963, art 6, § 28; Viculin v 

Department of Civil Service, 386 Mich 375, 385 (1971).

 CAVANAGH, J., would deny leave to appeal. 

WEAVER, J., dissents and states as follows: 

I dissent and would not peremptorily reverse because I would grant leave to 

appeal. 

KELLY, J., dissents and states as follows: 

I dissent from the decision to reverse the judgment of the Court of Appeals by 

order. In so deciding, the majority relies on an issue that was not raised or addressed by 
 _________________________________________ 

 

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the parties in any court. Moreover, the majority’s conclusory statements regarding 

jurisdiction do not answer the central question of why this case does not involve a matter 

of contract. Rather than act peremptorily, I would grant leave to appeal. 

Plaintiff worked as a secretary for the Department of Natural Resources. She was 

enrolled in a long-term disability and income protection plan (LTD plan). She received 

LTD-plan benefits from 2001 to May 2003, when the defendant discontinued her 

benefits. Defendant contended that plaintiff had failed to demonstrate that she could no 

longer perform any reasonable occupation for which she could become qualified. 

Plaintiff filed suit in the Court of Claims, arguing that she had a contractual right to the 

benefits. Defendant contended that this case did not involve a contractual right, and, as 

such, the Court of Claims did not have jurisdiction. The Court of Appeals ruled in favor 

of plaintiff. And it was this issue that the parties brought to the Supreme Court. 

But it is not this issue that the majority has addressed. Instead, it has decided the 

case on the basis of plaintiff’s alleged failure to exhaust her administrative remedies. 

This issue was not raised by defendant in this Court. In fact, it was not raised in or 

addressed by any court. It is unfair to plaintiff for the majority to sua sponte decide that 

this issue is controlling. At the very least, plaintiff should get a chance to respond. Also, 

the Court needs to decide why the issue was not waived, or at least forfeited, by 

defendant’s failure to raise it below. Instead of going off on this tangent, we should grant 

leave to appeal to allow the parties to address this issue. 

In its final sentence, the majority’s order alludes to the issue actually discussed by 

the parties. Without any real connection to the rest of the order, the final sentence 

concludes that the circuit court was the appropriate venue for this case, rather than the 

Court of Claims. Absent from the order is any mention of the question whether 

plaintiff’s LTD benefits are contractual. If this case is a contractual dispute, it is now 

undisputed that the Court of Claims would have jurisdiction. This question remains open 

and needs to be answered. 

Because the majority’s order leaves fundamental questions unanswered, it is 

inadequate. I would grant leave to appeal and order the parties to address whether the 

dispute is contractual, whether plaintiff exhausted her administrative remedies, and, if 

not, whether defendant waived the issue. 

d0109 

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. 

January 12, 2007 

Clerk