Daniel Wiedyk v. John Paul Poisson ( 2010 )

Order Michigan Supreme Court
Lansing, Michigan
December 1, 2010 Marilyn Kelly,
Chief Justice
138260 Michael F. Cavanagh
Maura D. Corrigan
DANIEL WIEDYK, Robert P. Young, Jr.
Stephen J. Markman
Plaintiff-Appellant, Diane M. Hathaway
Alton Thomas Davis,
v SC: 138260 Justices
COA: 280214
Midland CC: 06-009751-NI
JOHN PAUL POISSON and TRAVERSE
CITY LEASING, d/b/a HERTZ,
Defendants-Appellees.
_________________________________________/
By order of August 20, 2009, the application for leave to appeal the January 6,
2009 judgment of the Court of Appeals was held in abeyance pending the decision in
McCormick v Carrier (Docket No. 136738). On order of the Court, the case having been
decided on July 31, 2010, 487 Mich ___ (2010), the application is again considered and,
pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we VACATE the
judgments of the Court of Appeals and the Midland Circuit Court, and we REMAND this
case to the trial court for reconsideration in light of McCormick.
YOUNG, J. (concurring).
I reluctantly concur in this Court’s order remanding this case for reconsideration in
light of this Court’s recent decision in McCormick v Carrier, 487 Mich ___ (2010).
Although I joined and continue to subscribe to Justice MARKMAN’s dissenting opinion in
that case, McCormick now controls when a person may recover in tort for non-economic
loss under the no fault act. The McCormick dissent astutely noted that “[b]y nullifying
the legislative compromise that was struck when the no-fault act was adopted—a
compromise grounded in concerns over excessive litigation, the overcompensation of
minor injuries, and the availability of affordable insurance—the Court’s decision today
will restore a legal environment in which each of these hazards reappear and threaten the
continued fiscal integrity of our no-fault system.” The factual scenario presented in this
case certainly brings to life these concerns and thus illustrates what is so troubling with
the virtually standardless positions articulated in McCormick.
In this case, prior to the most current accident for which plaintiff is seeking non-
economic damages (which occurred in 2005), plaintiff had been involved in 10 prior
2
accidents in the past 15 years, and those accidents occurred after he suffered a closed
head injury at work rendering him disabled since 1979. As a result, plaintiff had serious
medical injuries and ailments that rendered him seriously impaired for quite some time
before the present accident. The trial court specifically found that the medical records
made clear that previous events caused the ailments from which he suffered, and thus
plaintiff’s general ability to lead his normal life was not affected by the accident in
question here. Because this determination is a person- and fact-specific inquiry, courts
must recognize that plaintiff’s pre-accident lifestyle was sedentary and his activities were
highly restricted; this did not change after the 2005 accident. Thus, there is no causation
between the 2005 accident and plaintiff’s impairments because he was already seriously
impaired prior to this accident as a result of many other prior accidents, as even one of
plaintiff’s own physicians conceded. Plaintiff’s inability to show causation does not
change even on remand for consideration in light of McCormick.
Nevertheless, because McCormick now governs the legal analysis that must be
employed when addressing these issues, I feel compelled to allow the trial court to
address this question anew. The majority’s decision in McCormick to strip MCL
500.3135 of any meaningful limitation by removing the statutory limitations imposed by
the Legislature produces a situation of seemingly unlimited liability that will require
courts to wrestle with the question of what constitutes a “serious impairment of body
function” without meaningful and defined guidance from their State’s senior Court.
CORRIGAN and MARKMAN, JJ., join the statement of YOUNG, J.
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.
December 1, 2010 _________________________________________
d1124 Clerk