Michigan Supreme Court Lansing, Michigan

Marilyn Kelly, Chief Justice

Michael F. Cavanag h
Elizabeth A. Weave r

Maura D. Corriga n Robert P. Young, Jr. Stephen J. Markma n Diane M. Hathaway,
J ustices 

# Order

April 16, 2010

138602 & (20)

CATHERINE WILCOX, individually, and as Next Friend of ISAAC WILCOX, a minor, Plaintiffs-Appellants,

and

SUNRISE HOME HEALTH SERVICES, INC., Intervening Plaintiff,

v SC: 138602 COA: 290515 Kent CC: 08-010129-NF STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.

________________ _______________ __________/

By order of October 26, 2009 , the application for leave to appeal the July 1, 2009 order of the Court of Appeals was he ld in abeyance pendi ng the decision in Hoover v Michigan Mutual Ins Co (Docket No. 138018). On order of the Court, the application for leave to appeal in Hoover having been dismissed on Ja nuary 15, 2010, 485 Mich 1032 (2010), the application is again considered , and it is GRANTED. The parties shall include among the issues to be briefed whet her, or to what extent, the defendant is obligated to pay the plaintiffs personal pr otection insurance benefits under the no-fault act, MCL 500.3101 et seq. , for housing expenses, modi fications, and accommodations
associated with the care of the plaintiffs’ son, Isaac Wilcox, and whether Griffith v State
Farm Mutual Automobile Ins Co , 472 Mich 521 (2005), was correctly decided. The motion for leave to participate as amicus curiae filed by the Co alition Protecting Auto
No-Fault is GRANTED. We further ORDER that the stay entered by this Court on October 26, 2009 remains in effect until completion of this appeal.

Y OUNG , J. ( dissenting ).

I respectfully dissent from the order in th is case and instead would deny leave to appeal. The order directs th e parties to discuss whether Griffith v State Farm Mutual2

Automobile Ins Co 1 was correctly decided. I believe it was correctly decided. While it is certainly the prerogative of the Court to reconsid er this case, this orde r is another instance where the majority seem s to retreat from its pr eviously stated fideli ty to stare decisis. 2

1 472 Mich 521 (2005).

2 See, e.g., Pohutski v City of Allen Park , 465 Mich 675, 712 (2002) (K ELLY , J., dissenting) (“[I]f each successive Court, believ ing its reading is correct and past readings wrong, rejects precedent, then the law will fluctuate from year to year, rendering our jurisprudence dangerously unstable.”); People v Hawkins , 468 Mich 488, 517-518 (2003) (C AVANAGH , J., dissenting) (“We have ove rruled our precedents when the intervening development of the law has ‘removed or weakened the conceptual underpinnings from the prior decision, or where the later law has rendered the decision irreconcilable with competing legal doctrines or policies.’ . . . Abse nt those changes or compelling evidence bearing on Congress’ orig inal intent . . . our system demands that we adhere to our prior interp retations of statutes.”), quoting Patterson v McLean Credit

Union , 491 US 164, 173; 109 S Ct 2363; 105 L Ed 2d 132 (1989) and Neal v United
States , 516 US 284, 295; 116 S Ct 763 ; 133 L Ed 2d 709 (1996); Rowland v Washtenaw
Co Rd Comm , 477 Mich 197, 278 (C AVANAGH , J., dissenting) (‘“Under the doctrine of stare decisis, principles of law deliberately examined and decided by a court of competent jurisdiction become precedent which should not be lightly departed.’”), quoting People v

Jamieson , 436 Mich 61, 79 (1990); Devillers v Auto Club Ins Ass’n , 473 Mich 562, 622 (2005) (W EAVER , J., dissenting) (“Correction for corre ction’s sake does not make sense. The case has not been made why the Court s hould not adhere to the doctrine of stare decisis in this case.”); Todd C. Berg, Hathaway attacks , Michigan La wyers Weekly, October 27, 2008 (“‘People need to know what the law is,’ Ha thaway said. ‘I believe in stare decisis. Something must be drastic ally wrong for the c ourt to overrule.’”); Lawyers’ election guide: Judge Diane Ma rie Hathaway, Michig an Lawyers Weekly, October 30, 2006, in which Justice H ATHAWAY , then running for a position on the Court of Appeals, was quoted as saying: “[t]oo many appellate decisions are being decided by judicial activists who ar e overturning precedent.”3

Since the shift in the Court’s philosophical majority in January 2009, the majority has pointedly sought out preced ents only recently decided 3 and has failed to give effect to other recent precedents of this Court. 4 Today, the Court again or ders reconsideration of a case that was decided just five years ago. It should be obvious to all but the most casual observer of the Court that a pattern is being established: the new majority is intent on “revisiting” (overruling) the decisions of the last ten years. Ironically, its consistent signals to the Bar that the jurisprudence of the last decade is in play seems an unnecessary prod to those who would eagerly return to the days when “judicial policy,” rather than the language of the statute, ruled.

3 See, e.g., University of Michigan Regents v Titan Ins Co , 484 Mich 852 (2009) (directing the parties to consider whether Cameron v ACIA , 476 Mich 55 (2006), was correctly decided); McCormick v Carrier , 485 Mich 851 (2009) (granting leave to consider the plaintiff’s request to overrule Kreiner v Fischer , 471 Mich 109 (2004)); Lenawee Co Bd of Rd Comm’rs v State Auto Prop & Cas Ins Co , 485 Mich 853 (2009) (directing the parties to consider whether Miller v Chapman Contracting , 477 Mich 102 (2007), was correctly decided); Edry v Adelman , 485 Mich 901 (2009) (directing the parties to consider whether Wickens v Oakwood Healthcare Sys , 465 Mich 53 (2001), was correctly decided); Hoover v Michigan Mut Ins Co , 485 Mich 881 (2009) (directing the parties to consider whether Griffith v State Farm Mu t Automobile Ins Co , 472 Mich 521 (2005), was correctly decided); Lansing Schools Education Ass’n v Lansing Bd of Ed, 485 Mich 962 (2009) (directing the parties to consider whether Lee v Macomb Co Bd of Comm’rs , 464 Mich 726 (2001), was correctly decided); Anglers of the AuSable v Dep’t of Environmental Quality , 485 Mich 1063 (2 010) (directing the parties to consider
whether Michigan Citizens v Nestlé Waters , 479 Mich 280 (2007), and Preserve the Dunes v DEQ , 471 Mich 511 (2 004), were correctly decided); Colaianni v Stuart Frankel Development Corp , 485 Mich 1066 (2010) (granting to consider whether Trentadue v Buckler Automatic Lawn Sprinkler , 479 Mich 378 (2007), was correctly decided).

4 See, e.g., Hardacre v Saginaw Vascular Services , 483 Mich 918 (2009), where the majority failed to follow Boodt v Borgess Med Ctr , 481 Mich 558 (2008); Sazima v Shepherd Bar & Restaurant , 483 Mich 924 (2009), where it failed to follow Chrysler v Blue Arrow Transport Lines , 295 Mich 606 (1940), and Camburn v Northwest School

Dist , 459 Mich 471 (1999); Vanslembrouck v Halperin , 483 Mich 965 (2009), where it
failed to follow Vega v Lakeland Hosps , 479 Mich 243, 244 (2007); Juarez v Holbrook

, 483 Mich 970 (2009), wh ere it failed to follow Smith v Khouri , 481 Mich 519 (2008); Beasley v Michigan , 483 Mich 1025 (2009), Chambers v Wayne Co Airport Auth , 483 Mich 1081 (2009), and Ward v Michigan State Univ , 485 Mich 917 (2009), where it
failed to follow Rowland v Washtenaw Co Rd Comm , 477 Mich 197 (2007); and Scott v
State Farm Automobile Ins Co , 483 Mich 1032 (2009), wh ere it failed to follow Thornton
v Allstate Ins Co , 425 Mich 643 (1986), and Putkamer v Transame rica Ins Corp of
America , 454 Mich 626 (1997).I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

_______________________________________ __ Clerk April 16, 2010

p0413 4

Other than the change in th e composition of this Court in 2009, nothing in the law
of this State or the rationale of that decision has changed in this shor t time. Accordingly, as I have in other similar orders, 5 I respectfully dissent from this order.

C ORRIGAN , J., joins the statement of Y OUNG , J.

5 See, e.g., University of Michigan Regents

, supra , 484 Mich at 853; Lenawee Co Bd of
Rd Comm’rs

, supra , 485 Mich at 855; Hoover

, supra , 485 Mich at 882; Lansing Schools
Education Ass’n

, supra , 485 Mich at 963; Anglers

, supra , 485 Mich at 1063; Colaianni

, supra , 485 Mich at 1066.