Order Michigan Supreme Court
Lansing, Michigan
October 26, 2007 Clifford W. Taylor,
Chief Justice
133730 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
RONALD FLEISCHFRESSER (Deceased), by Maura D. Corrigan
JOYCE WILKINS FLEISCHFRESSER Robert P. Young, Jr.
(Surviving Spouse), Stephen J. Markman,
Justices
Plaintiff-Appellant,
v SC: 133730
COA: 274353
WCAC: 05-000145
PETERSON TOWING, INC., HIGHLAND
INSURANCE GROUP, and NORTHWESTERN
NATIONAL CASUALTY COMPANY,
Defendants-Appellees.
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On order of the Court, the application for leave to appeal the March 16, 2007 order
of the Court of Appeals is considered, and it is DENIED, because we are not persuaded
that the questions presented should be reviewed by this Court.
MARKMAN, J., concurs and states as follows:
I reluctantly concur in the Court's decision. I concur because it is in accord with
this Court's decision in Day v W A Foote Mem Hosp, 412 Mich 698 (1982), and that
decision has not been challenged. I concur reluctantly because the result of Day is that
the case-law in our state now bears no relationship to the statutory law. Whereas the
Legislature in enacting MCL 418.331 specified that a person in claimant's position (a
deserted wife) should, for purposes of workers' compensation survivor benefits be
"conclusively presumed to be wholly dependent for support upon a deceased employee,"
Day has nullified this presumption and substituted a case-by-case factual determination.
Claimant likely would have been entitled to survivor benefits under the statute enacted by
the Legislature, but not under the present judicially-rewritten statute. While I agree with
Day that the United States Supreme Court's decision in Wengler v Druggists Mut Ins Co,
446 US 142 (1980), is controlling and requires that MCL 418.331 be held violative of the
Equal Protection Clause, I do not believe that this Court had, as it asserted in Day, a
choice to determine “the appropriate remedy for this unconstitutional gender-based
presumption: invalidation, extension to widowers, or preservation of the statute for a
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short period of time to enable the Legislature to forge its own solution.” Day, supra at
703. Rather, this Court had only one proper option in light of Wengler and that was to
strike down MCL 418.331 as unconstitutional and leave it to the Legislature to enact a
different and constitutionally-valid provision if it chose to do so. See North Ottawa Hosp
v Kieft, 457 Mich 394, 408 n 14 (1998) (rejecting the approach of Day and instead
"await[ing] the judgment of the Legislature regarding which is the better policy for the
state to adopt" in the wake of an equal protection violation). This Court does not have
the authority to rewrite a statute, even if it does so wisely.
CAVANAGH, WEAVER, and KELLY, JJ., would remand this case to the Court of
Appeals as on leave granted.
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.
October 26, 2007 _________________________________________
t1023 Clerk