Idalski v. Schwedt , 781 N.W.2d 803 ( 2010 )

781 N.W.2d 803 (2010)

Kimberly IDALSKI, Plaintiff-Appellant,
v.
David Allen SCHWEDT, Defendant, and
State Farm Mutual Insurance Company, Defendant-Appellee.

Docket No. 139960. COA No. 287279.

Supreme Court of Michigan.

May 21, 2010.

Order

On order of the Court, the application for leave to appeal the September 29, 2009 judgment of the Court of Appeals is considered. We direct the Clerk to schedule oral argument on whether to grant the application or take other peremptory action. MCR 7.302(H)(1). At oral argument, the parties shall address whether Rory v. Continental Ins. Co., 473 Mich. 457, 703 N.W.2d 23 (2005), should be reconsidered. They may file supplemental briefs within 42 days of the date of this order, but they should not submit mere restatements of their application papers.

MARILYN J. KELLY, C.J. (concurring).

I agree with the order granting oral argument on whether to grant the application or take other peremptory action in this case. I write merely to point out that once again Justice Young inaccurately characterizes recent decisions of this Court as overturning binding precedent and as representing a retreat from the doctrine of stare decisis.^[1] In addition, he quotes a statement I made over two years ago and applies it in an altogether different context to incorrectly divine my motivation in voting to enter the order in this case.

YOUNG, J. (dissenting).

I respectfully dissent from the order granting oral argument in this case and instead would deny leave to appeal. The order directs the parties to discuss whether Rory v. Continental Ins. Co.^[2] should be reconsidered. I believe it was correctly decided. While it is certainly the prerogative of the Court to reconsider this case, this order is another instance where the majority seems to retreat from its previously stated fidelity to stare decisis.^[3]

Since the shift in the Court's philosophical majority in January 2009, the majority has pointedly sought out precedents only recently decided^[4] and has failed to give effect to other recent precedents of this Court.^[5] I can only assume that the majority is making good on our Chief Justice's pledge she made shortly after the 2008 election that caused a shift in the Court's philosophical majority:

We the new majority will get the ship off the shoals and back on course, and we will undo a great deal of the damage that the Republican-dominated court has done. Not only will we not neglect our duties, we will not sleep on the bench.[^[6]]

Today, the Court again orders reconsideration of a case that was decided just five years ago. Nothing in the law of this State or the rationale of that decision has changed in this short time. Accordingly, as I have in other similar orders,^[7] I respectfully dissent from this order.

CORRIGAN, J., joins the statement of YOUNG, J.

NOTES

[1] See, e.g., Colaianni v. Stuart Frankel Development Corp., 485 Mich. 1070, 777 N.W.2d 410 (2010); See also, Scott v. State Farm Mutual Auto. Ins. Co., 483 Mich. 1032, 1035, 766 N.W.2d 273 (2009) (KELLY, C.J., concurring) (undertaking a case-by-case analysis to refute the dissent's accusation that this Court was ignoring precedent).

[2] 473 Mich. 457, 703 N.W.2d 23 (2005).

[3] See, e.g., Pohutski v. City of Allen Park, 465 Mich. 675, 712, 641 N.W.2d 219 (2002) (KELLY, J., dissenting) ("[I]f each successive Court, believing 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, 668 N.W.2d 602 (2003) (CAVANAGH, J., dissenting) ("We have overruled 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.'. . . Absent those changes or compelling evidence bearing on Congress ``original intent . . . our system demands that we adhere to our prior interpretations of statutes."), quoting Patterson v. McLean Credit Union, 491 U.S. 164, 173, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989) and Neal v. United States, 516 U.S. 284, 295, 116 S.Ct. 763, 133 L.Ed.2d 709 (1996); Rowland v. Washtenaw Co. Rd. Comm., 477 Mich. 197, 278, 731 N.W.2d 41 (2007) (CAVANAGH, 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, 461 N.W.2d 884 (1990); Devillers v. Auto Club Ins. Ass'n, 473 Mich. 562, 622, 702 N.W.2d 539 (2005) (WEAVER, J., dissenting) ("Correction for correction's sake does not make sense. The case has not been made why the Court should not adhere to the doctrine of stare decisis in this case."); Todd C. Berg, Hathaway attacks, Michigan Lawyers Weekly, October 27, 2008 ("``People need to know what the law is,' Hathaway said. ``I believe in stare decisis. Something must be drastically wrong for the court to overrule.'"); Lawyers' election guide: Judge Diane Marie Hathaway, Michigan Lawyers Weekly, October 30, 2006, in which Justice HATHAWAY, 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 are overturning precedent."

[4] See, e.g., University of Michigan Regents v. Titan Ins. Co., 484 Mich. 852, 769 N.W.2d 646 (2009) (directing the parties to consider whether Cameron v. ACIA, 476 Mich. 55, 718 N.W.2d 784 (2006), was correctly decided); McCormick v. Carrier, 485 Mich. 851, 770 N.W.2d 357 (2009) (granting leave to consider the plaintiff's request to overrule Kreiner v. Fischer, 471 Mich. 109, 683 N.W.2d 611 (2004)); Lenawee Co. Bd. of Rd. Comm'rs v. State Auto Prop & Cas. Ins. Co., 485 Mich. 853, 770 N.W.2d 879 (2009) (directing the parties to consider whether Miller v. Chapman Contracting, 477 Mich. 102, 730 N.W.2d 462 (2007), was correctly decided); Edry v. Adelman, 485 Mich. 901, 772 N.W.2d 427 (2009) (directing the parties to consider whether Wickens v. Oakwood Healthcare Sys., 465 Mich. 53, 631 N.W.2d 686 (2001), was correctly decided); Hoover v. Michigan Mut. Ins. Co., 485 Mich. 881, 772 N.W.2d 338 (2009) (directing the parties to consider whether Griffith v. State Farm Mut. Automobile Ins. Co., 472 Mich. 521, 697 N.W.2d 895 (2005), was correctly decided); Lansing Schools Education Ass'n v. Lansing Bd. of Ed., 485 Mich. 966, 780 N.W.2d 751 (2009) (directing the parties to consider whether Lee v. Macomb Co. Bd. of Comm'rs, 464 Mich. 726, 629 N.W.2d 900 (2001), was correctly decided); Anglers of the AuSable v. Dep't of Environmental Quality, 485 Mich. 1067, 777 N.W.2d 407 (2010) (directing the parties to consider whether Michigan Citizens v. Nestlé Waters, 479 Mich. 280, 737 N.W.2d 447 (2007), and Preserve the Dunes v. DEQ, 471 Mich. 511 (2004), were correctly decided); Colaianni v. Stuart Frankel Development Corp., 485 Mich. 1070, 777 N.W.2d 410 (2010) (granting to consider whether Trentadue v. Buckler Automatic Lawn Sprinkler, 479 Mich. 378, 738 N.W.2d 664 (2007), was correctly decided).

[5] See, e.g., Hardacre v. Saginaw Vascular Services, 483 Mich. 918, 762 N.W.2d 527 (2009), where the majority failed to follow Boodt v. Borgess Med. Ctr., 481 Mich. 558, 751 N.W.2d 44 (2008); Sazima v. Shepherd Bar & Restaurant, 483 Mich. 924, 762 N.W.2d 924 (2009), where it failed to follow Chrysler v. Blue Arrow Transport Lines, 295 Mich. 606, 295 N.W. 331 (1940), and Camburn v. Northwest School Dist., 459 Mich. 471, 592 N.W.2d 46 (1999); Vanslembrouck v. Halperin, 483 Mich. 965, 763 N.W.2d 919 (2009), where it failed to follow Vega v. Lakeland Hosps., 479 Mich. 243, 244, 736 N.W.2d 561 (2007); Juarez v. Holbrook, 483 Mich. 970, 764 N.W.2d 216 (2009), where it failed to follow Smith v. Khouri, 481 Mich. 519, 751 N.W.2d 472 (2008); Beasley v. Michigan, 483 Mich. 1025, 765 N.W.2d 608 (2009), Chambers v. Wayne Co. Airport Auth., 483 Mich. 1081, 765 N.W.2d 890 (2009), and Ward v. Michigan State Univ., 485 Mich. 917, 773 N.W.2d 666 (2009), where it failed to follow Rowland v. Washtenaw Co. Rd. Comm., 477 Mich. 197, 731 N.W.2d 41 (2007); Scott v. State Farm Automobile Ins. Co., 483 Mich. 1032, 766 N.W.2d 273 (2009), where it failed to follow Thornton v. Allstate Ins. Co., 425 Mich. 643, 391 N.W.2d 320 (1986), and Putkamer v. Transamerica Ins. Corp. of America, 454 Mich. 626, 563 N.W.2d 683 (1997); and Esselman v. Garden City Hospital, 486 Mich. 892, 780 N.W.2d 776 (2010).

[6] She Said, Detroit Free Press, December 10, 2008.

[7] See, e.g., University of Michigan Regents, supra, 484 Mich. at 853, 769 N.W.2d 646; Lenawee Co. Bd. of Rd. Comm'rs, supra, 485 Mich. at 855, 770 N.W.2d 879; Hoover, supra, 485 Mich. at 882, 772 N.W.2d 338; Lansing Schools Education Ass'n, supra, 485 Mich. at 966, 780 N.W.2d 751; Anglers, supra, 485 Mich. at 1067, 777 N.W.2d 407; Colaianni, supra, 485 Mich. at 1070, 777 N.W.2d 410.