Order Michigan Supreme Court
Lansing, Michigan
September 26, 2008 Clifford W. Taylor,
Chief Justice
Rehearing No. 550 Michael F. Cavanagh
Elizabeth A. Weaver
135375 Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman,
Justices
PATRICIA D. BRACKETT,
Plaintiff-Appellee,
v SC: 135375
COA: 274078
WCAC: 04-000165
FOCUS HOPE and ACCIDENT FUND
INSURANCE COMPANY OF AMERICA,
Defendants-Appellants.
_________________________________________/
On order of the Court, the motion for rehearing is considered, and it is DENIED.
CAVANAGH, J. (dissenting).
I would grant rehearing and, on rehearing, would reverse this Court’s July 30,
2008, decision because defendant has failed to offer any evidence that the work rule in
question had been enforced. When seeking to avoid paying workers’ compensation
benefits to an employee because the employee violated a work rule, the employer has the
burden of proving that the work rule was “rigidly enforced.” Allen v Nat’l Twist Drill &
Tool Co, 324 Mich 660, 664 (1949). Although defendant showed that employees knew
that the work rule was considered mandatory, defendant entirely failed to show any
occurrence of actual enforcement of the rule except against plaintiff. Thus, defendant has
failed to establish a defense under MCL 418.305.
KELLY, J., joins the statement of CAVANAGH, J.
WEAVER, J. (dissenting).
I dissent from the order denying plaintiff’s motion for rehearing. I would grant
rehearing for the reasons stated in my statement dissenting from the decision of the
majority of four (Chief Justice Taylor and Justices Corrigan, Young, and Markman) to
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reverse the judgment of the Court of Appeals on the ground that the plaintiff’s refusal to
attend a mandatory employee event constituted “intentional and wilful misconduct” under
MCL 418.305, thereby barring her recovery of benefits under the Worker’s Disability
Compensation Act, MCL 418.101 et seq.
For my reasons in detail, see my dissenting statement in Brackett v Focus Hope,
482 Mich___; 753 NW2d 207, 216 (2008).
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.
September 26, 2008 _________________________________________
0923 Clerk