Malloy v. DSI Acoustical Co.

756 N.W.2d 51 (2008)

Patrick MALLOY, Plaintiff-Appellee, Cross-Appellee,
v.
DSI ACOUSTICAL COMPANY and Michigan Insurance Company, Defendants-Appellees, Cross-Appellants, and
Central Interiors, Inc. and Cincinnati Insurance Company, Defendants-Appellants, Cross-Appellees, and
W & G, L.L.C., and American Guarantee & Liability Insurance Company; Matrix Construction Services, L.L.C., and Accident Fund Insurance Company of America, Defendants-Appellees, Cross-Appellees.

Docket No. 136561. COA No. 280855.

Supreme Court of Michigan.

September 19, 2008.

On order of the Court, the application for leave to appeal the April 30, 2008 order of the Court of Appeals and the application for leave to appeal as cross-appellants are considered and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we VACATE the order of the Court of Appeals and we REMAND this case to that court for plenary consideration. In particular, we DIRECT the Court of Appeals to consider whether, contrary to the WCAC's finding, the testimony of Dr. John A. Sauchak, as found by the magistrate, supports a specific event injury on October 11, 2003. We also DIRECT the Court of Appeals to consider whether the WCAC misapplied its standard of review, MCR 418.861a(3), by neglecting to address the other evidence in the record that was utilized by the magistrate to find an October 11, 2003 injury date. See Mudel v. Great Atlantic & Pacific Tea Company, 462 Mich. 691, 703-704, 614 N.W.2d 607 (2000). Finally, we DIRECT the Court of Appeals to consider the arguments raised by the cross-appellants in this Court and this Court's decision in Stokes v. Chrysler LLC, 481 Mich. 266, 750 N.W.2d 129 (2008).

WEAVER, J. (dissenting.)

I dissent from the order vacating the order of the Court of Appeals and remanding this case to the Court of Appeals for consideration of the arguments raised by the cross-appellants in this Court and this Court's decision in Stokes v. Chrysler LLC, 481 Mich. 266, 750 N.W.2d 129 (2008).

Because I dissented from the majority opinion in this Court's decision in Stokes v. Chrysler LLC, 481 Mich. at 320, 750 N.W.2d 129 (Weaver, J., dissenting), I would grant leave to appeal in this case to consider whether a majority of this Court reached the correct decision in Stokes.

MICHAEL F. CAVANAGH and MARILYN J. KELLY, JJ., join the statement of WEAVER, J.