Karaczewski v. Farbman Stein & Co.

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED MAY 23, 2007

KENNETH KARACZEWSKI,

Plaintiff-Appellee,

v No. 129825

FARBMAN STEIN & COMPANY and
NATIONWIDE MUTUAL INSURANCE COMPANY,

Defendants-Appellants.

_______________________________

BEFORE THE ENTIRE BENCH

CORRIGAN, J.

In this case, we consider whether a Florida resident who was injured in a

Florida workplace accident may recover workers’ compensation benefits in

Michigan merely because he was hired in Michigan. We conclude that he cannot.

The relevant portion of the Michigan Worker’s Disability Compensation Act

(WDCA), MCL 418.845, confers jurisdiction on the Bureau of Worker’s

Compensation, now the Workers’ Compensation Agency, for out-of-state

workplace injuries only if (1) the employee is a resident of Michigan when the

injury occurs and (2) the contract of hire was made in Michigan. Accordingly, we
reverse the contrary Court of Appeals judgment awarding benefits and overrule

Boyd v W G Wade Shows, 443 Mich 515; 505 NW2d 544 (1993), upon which the

Court of Appeals relied.

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

The parties stipulated the relevant facts:

Plaintiff was hired by defendant on October 4, 1984 to work
in Michigan as a maintenance engineer. As of the date of hire,
plaintiff was a resident of Detroit, Michigan and defendant employer
was a resident employer in Michigan. The Contract of hire was
made in Michigan. The Farbman Group continues to be a resident
employer and is currently located at 28400 Northwestern Hwy,
Southfield, Michigan.

Plaintiff worked for defendant in Michigan from the date of
hire until September 1, 1986, when defendant transferred him to Fort
Lauderdale, Florida to assume the position of building
superintendent. On January 12, 1995, Plaintiff fell from a ladder in
the course of his employment for defendant in Florida, breaking his
left wrist and injuring his left knee. At the time of the injury, he was
a resident of Florida. On September 27, 1996, plaintiff reinjured his
knee while still working for defendant in Florida. He underwent
surgery on November 6, 1996 for ACL [anterior cruciate ligament]
reconstruction and microfracture arthroplasty. Plaintiff returned to
work for defendant with restrictions on December 2, 1996.

He received certain benefits pursuant to Florida’s worker’s
compensation law.

Plaintiff continued to work for defendant until September 15,
1997. Since that time, he has worked as a project manager for
Rotella, Toroyan, Clinton Group, a Florida Corporation.

Plaintiff continues to have problems with his left knee. There
is no wage loss at this time. He has, however, incurred further
expenses for treatment and anticipates the need for additional
surgery(ies) and future closed period(s) of disability. These claims
are not covered under Florida law.

2

 Plaintiff has filed an application for mediation or hearing,
claiming medical and wage loss benefits under Michigan law.
Defendant disputes jurisdiction. It does not dispute the existence of
a work related knee injury.

The Court of Appeals summarized the proceedings before the magistrate

and the Workers’ Compensation Appellate Commission (WCAC):

In the proceedings below, defendants contended that pursuant
to the plain language of the statute which determines the bureau’s
jurisdiction, MCL 418.845, to be entitled to benefits, an injured
worker must be a resident of Michigan at the time of the injury. In
response, plaintiff contended that pursuant to the interpretation of
MCL 418.845, as set forth in Boyd v W G Wade Shows, 443 Mich
515; 505 NW2d 544 (1993), there is no residency requirement for an
injured worker, and the bureau has jurisdiction over a petition filed
by an injured worker when, as in the instant case, the contract of hire
was executed in Michigan and the employer is a resident employer
in Michigan. The magistrate agreed with plaintiff and concluded
that the bureau had jurisdiction in this matter.

Defendant appealed the decision to the WCAC. The WCAC
noted that the Supreme Court’s decision in Boyd reaffirmed an
interpretation of the jurisdictional statute originally set forth in
Roberts v IXL Glass Corp, 259 Mich 644; 244 NW 188 (1932). The
WCAC opined that Roberts contravened the express language of
MCL 418.845, but agreed with the magistrate that Boyd and Roberts
are binding. Defendants were granted leave to appeal the WCAC’s
decision. [1]

The Court of Appeals affirmed the WCAC decision because “pursuant to

Roberts and Boyd, the WCAC properly concluded that the bureau has jurisdiction

over plaintiff’s petition for benefits.” Id. at 5. We granted defendant’s application

for leave to appeal, directing the parties to address whether the “proposed

1
Unpublished opinion per curiam, issued October 18, 2005 (Docket No.
256172), p 2.
(…continued)

3

overruling of [Boyd] is justified under the standard for applying stare decisis

discussed in Robinson v Detroit, 462 Mich 439, 463-468 [613 NW2d 307]

(2000).”2

II. STANDARD OF REVIEW

This case requires us to interpret the language set forth in MCL 418.845.

We review de novo questions of statutory construction. People v Perkins, 473

Mich 626, 630; 703 NW2d 448 (2005).

III. ANALYSIS

A. STATUTORY INTERPRETATION

MCL 418.845 is clear and unambiguous. It grants the bureau “jurisdiction

over all controversies arising out of injuries suffered outside this state where the

injured employee is a resident of this state at the time of injury and the contract of

hire was made in this state.” (Emphasis added.) The meaning of this provision is

straightforward: where the injury occurs outside Michigan, the bureau has

jurisdiction only where (1) the injured employee was a resident of Michigan at the

time of the injury and (2) the contract of hire was made in Michigan. Plainly, the

use of the conjunctive term “and” reflects that both requirements must be met

before the bureau has jurisdiction over an out-of-state injury.

(continued…)
2
474 Mich 1087 (2006).

4

 This statute in its initial enactment in 1921 PA 173, was an amendment3 of

the Michigan Workmen’s Compensation Act, 1912 (1st Ex Sess) PA 10.4 This

amendment was enacted after the decision in Crane v Leonard Crossette & Riley,

214 Mich 218; 183 NW 204 (1921). In Crane, this Court held that because

participation in the workers’ compensation system was elective, the requirements

of the law were considered to be incorporated into the employment contract when

an employer chose to participate in the system. Thus, it was irrelevant that the

injury did not occur in Michigan.5

In 1932, this Court considered the 1921 amendment in Roberts, supra. The

Roberts Court stated that the new statutory requirements focusing on residence at

the time of the injury “would come with much, if not controlling, force if it were

not in conflict with other portions of the statute.” Roberts, supra at 647. That

“other portion of the statute” was 1929 CL 8412, which this Court described as

fixing “the rights and liabilities of employers and employees.” Id. This Court said

3
This statute was enacted as part III, § 19 of the act by 1921 PA 173. In
the 1929 Compilation, it was numbered 1929 CL 8458. In the 1948 Compilation,
it was renumbered 1948 CL 413.19. 1969 PA 317, § 898 repealed 1948 CL
413.19 and Act 317 also enacted MCL 418.845. While the statute has been
renumbered, repealed, and reenacted over the years, the original language is
virtually identical to the current statute, MCL 418.845.
4
The creation of the Workmen’s Compensation Act and the WDCA is
discussed in Cain v Waste Mgt, Inc (After Remand), 472 Mich 236, 247-249; 697
NW2d 130 (2005).

5

that the WDCA covered “‘all employees’ regardless of residence or the locus of

the accident.” Id. Because of this conflict and the “radical change in the scope

and effect,” id. at 648, that the nullification of § 8412 by § 8458 would have, the

Court declined to assume that the Legislature had intended such nullification when

it enacted § 8458. The Court also opined that its construction was consistent with

the “humane purposes” of the WDCA. This meant that § 8412 trumped § 8458,

and workers’ compensation coverage would be required without regard to

residence or where the injury occurred, despite the language of § 8458.

In 1943 PA 245, the Legislature expressly repealed § 8412. With that

action, the Legislature effectively eliminated the central rationale of the Roberts

decision, i.e., the Court’s declination to repeal by inference § 8412. The 1943

amendment thus left § 8458 as the unquestioned law. At that juncture, then, the

Legislature had addressed the problem that had precluded the Roberts Court from

enforcing § 8458, and the Roberts rationale for declining to enforce § 8458 no

longer applied.

Indeed, the appellate courts of this state implicitly recognized this point in

eight of nine cases where issues concerning § 8458 and its successor statutes arose

from 1943 until the Boyd decision in 1992.

(continued…)
5
In Hulswit v Escanaba Mfg Co, 218 Mich 331; 188 NW 411 (1922), this
Court reached a similar conclusion. Although this case was decided after the 1921
amendment, the act before the adoption of the amendment controlled that case.

6

 In Daniels v Trailer Transport Co, 327 Mich 525, 527, 530; 42 NW2d 828

(1950), this Court implicitly required that the statutory prerequisites of § 8458 be

met. In that case, the Court concluded that where a Michigan employer had made

an employment contract in Texas, and where the employee was an Illinois resident

who suffered an injury in Tennessee, jurisdiction did not exist to bring a workers’

compensation action in Michigan.6

Without reconciling Daniels, however, the Court of Appeals in Austin v W

Biddle Walker Co, 11 Mich App 311, 313, 318; 161 NW2d 150 (1968), followed

what it understood to be the Roberts holding when it concluded that a nonresident

6
In her dissent, Justice Kelly argues that that the “Court in Daniels relied
on Cline v Byrne Doors, Inc, for the proposition that, ‘“Under the provisions in the
Michigan statute on which plaintiff relies [i.e., the precursor to § 845], his right to
compensation depends on whether he was employed by virtue of a contract of hire
made in this State.”’ Daniels, 327 Mich at 530, quoting Cline v Byrne Doors, Inc,
327 Mich 540.” This is simply not true.

In Daniels, this Court noted the plaintiff’s argument that “neither the
residence of the employee, the place or State of hiring, nor the place or State of
injury is controlling.” Id. at 528. It then noted that the defendant had relied on the
predecessor to the statute at issue here in arguing that the Workmen’s
Compensation Commission had jurisdiction over out-of-state injuries only when
“the injured employee is a resident of Michigan at the time of the injury and the
contract of hire was made in Michigan.” Id. at 529-530. Further, it found that
the only decision in Michigan after the effective date of 1943 PA 245, the
amendment that made the act compulsory, Cline, supra, “does not decide the issue
in the case at bar.” Id. at 530. This Court then stated that under the facts before
it, the Workmen’s Compensation Commission exceeded its jurisdiction in making
an award to the plaintiff. Id. While it is true that the Court never mentioned
Roberts, the Legislature had by passing 1943 PA 245 destroyed the rationale and,
with it, the viability of Roberts, so no other reading of the case can be sustained.
Thus, the Legislature having effectively dispatched Roberts, the Court in Daniels
simply chose to ignore Roberts.

7

of Michigan, hired in Michigan but injured outside Michigan, could collect

workers’ compensation benefits in Michigan.7

Returning to the Daniels understanding, the Court of Appeals held in

Rodwell v Pro Football, Inc, 45 Mich App 408, 416-418; 206 NW2d 773 (1973),

that where an employment contract was made in Michigan with a worker who

lived in Michigan but the injury occurred out of state, the employee was eligible

for Michigan workers’compensation.

Later, in Crenshaw v Chrysler Corp, 394 Mich 513, 515-516; 232 NW2d

166 (1975), this Court determined that the WDCA did not apply when the contract

of hire with a Michigan company was executed in Ohio and the injuries occurred

in Ohio.8

7
In dissent, then-Judge Levin made the following telling observation
regarding the effect of the 1943 amendment:

In eliminating the optional nature of coverage under the act
and making coverage compulsory, and in eliminating the former
statutory language that an electing employer agrees “to cover and
protect all employees employed in any and all of his businesses,” the
legislature eliminated the fundamental bases of the Crane, Huslwit,
and Roberts holdings. [Id. at 326-327 (Levin, P.J., dissenting).]
8
The same understanding of the effect of 1943 PA 245 seen in Daniels
explains why the Crenshaw Court neither distinguished nor overruled Roberts,
and also why it did not cite Roberts as authority. Rather, it properly relied on the
statute, which by its plain language required both that the employee was a resident
of Michigan at the time of the injury and that the contract of hire was made in
Michigan to deny the plaintiff benefits. Justice Kelly’s assertion in her dissent that
some other reading is possible is, we believe, not convincing in the context of this
case and the Daniels case.

8

 Next, in Jensen v Prudential Ins Co of America, 118 Mich App 501, 503-

504; 325 NW2d 469 (1982), the Court of Appeals, after noting that both Michigan

residence and a Michigan contract of hire are required, concluded that the WDCA

did not apply because the employee was not a Michigan resident and the contract

was not entered into in Michigan.

In Shaw v Grunwell-Cashero of Milwaukee, 119 Mich App 758, 761; 327

NW2d 349 (1982), the Court of Appeals found no indication of either a Michigan

contract or a Michigan resident employee. Thus, no jurisdiction existed over a

Wisconsin employer.

In Wolf v Ethyl Corp, 124 Mich App 368, 370; 335 NW2d 42 (1983), the

Court of Appeals stated that jurisdiction required both Michigan residence and a

Michigan contract. While the contract of hire between the employee and the

employer was made in Michigan, the employee was a resident of Connecticut at

the time of the injury. Because the employee was not a Michigan resident,

jurisdiction was lacking.

After noting that MCL 418.845 plainly required both conditions, the Court

of Appeals, in Bell v F J Boutell Driveaway Co, 141 Mich App 802, 812-813; 369

NW2d 231 (1985), stated that while the case apparently involved a Michigan

employer, the employee was an Ohio resident who was injured in Ohio. Thus, the

bureau lacked jurisdiction.

Finally, in Hall v Chrysler Corp, 172 Mich App 670, 672-673; 432 NW2d

398 (1988), the Court of Appeals held that no jurisdiction existed over an out-of-

9

state injury because although the contract had been entered in Michigan with a

Michigan company, the employee was not a Michigan resident.

At this point, two Supreme Court holdings and six Court of Appeals

holdings left no doubt that § 8458 and its successors, 1948 CL 413.19 and MCL

418.845, were incontrovertibly the law9 when this Court rejected this entire line of

authority in Boyd.

Paying no heed to (1) the rationale of Roberts, (2) the unmistakable effect

of the 1943 statutory amendment, and (3) the nine later cases implicitly

recognizing these matters, the Boyd Court seized on the dicta in Roberts

discussing the “humane purposes” of the WDCA. The Boyd Court asserted that

MCL 418.845 could not be enforced because such a jurisdictional scheme was

“not only undesirable but also unduly restrictive.” Boyd, supra at 524. The Boyd

majority, in the face of all contrary evidence, nonetheless opined that the

Legislature had acquiesced in the Roberts construction. In reality, however, even

assuming that legislative acquiescence is a valid judicial interpretative tool,10 the

Legislature had no need to acquiesce because the Legislature had, responding to

Roberts, repealed the section (§ 8412) that had caused the predecessor of MCL

9
The one contrary decision, Austin, supra, was ignored by the seven
decisions that followed.
10
See the discussion in n 11 of this opinion for an explanation of this
Court’s repudiation of the legislative acquiescence doctrine.

10

418.845 to be inoperable.11 Thus, MCL 418.845 should have been enforced, as it

had been for many years. The Boyd Court erred in holding to the contrary.

B. STARE DECISIS

We conclude that overruling Boyd is warranted under the doctrine of stare

decisis as set forth in Robinson. Stare decisis is a principle of policy rather than an

inexorable command, and this Court is not bound to follow precedent that is

unworkable or badly reasoned. Robinson, supra at 464. In assessing whether to

overrule a prior decision, we must consider whether the prior decision was

wrongly decided, whether reliance interests would work an undue hardship, and

whether changes in the law or facts no longer justify the decision. Id. “As to the

11
In her dissent in Boyd, Justice Riley explained why she believed the
majority’s reliance on the legislative acquiescence doctrine was misguided:

Considering the changes in the nature of the worker’s
compensation system, as well as the clarity of the statutory language,
the principle of legislative acquiescence should not be used to
continue a decision that lacks persuasive legal foundation.
Moreover, the clarity of the conjunctive language used in MCL
418.845; MSA 17.237(845) also supports the argument that the
Legislature could not change the language of the statute after
Roberts to add a residency requirement, because the clear language
already existed in the statute and nothing else needed to be added.
Therefore, legislative acquiescence to the Roberts decision is not as
clear as the majority suggests. [Id. at 536.]

Moreover, after Boyd, this Court strongly criticized the doctrine of
legislative acquiescence. In Donajkowski v Alpena Power Co, 460 Mich 243, 261;
597 NW2d 574 (1999), we stated that “‘legislative acquiescence’ is a highly
disfavored doctrine of statutory construction; sound principles of statutory
(…continued)

11

reliance interest, the Court must ask whether the previous decision has become so

embedded, so accepted, so fundamental, to everyone’s expectations that to change

it would produce not just readjustments, but practical real-world dislocations.” Id.

at 466.

As discussed, the text of MCL 418.845 is so patently clear that its meaning

is truly beyond any reasonable dispute. MCL 418.845 plainly grants jurisdiction

to the bureau only where the injured employee was a resident of the state at the

time of the injury and the contract of hire was made in Michigan. Because the

Boyd Court (1) construed the statute to eliminate the residency requirement and

(2) failed to recognize that the Legislature abrogated the Roberts decision by

making the workers’ compensation system mandatory in 1943, we conclude that

Boyd was wrongly decided.

We discern no basis to conclude that Boyd has become so fundamental to

expectations that overruling it would produce practical, real-world dislocations.

Overruling Boyd will not affect any employees who are injured in Michigan

because MCL 418.845 addresses jurisdiction only for out-of-state injuries. Nor

will our decision affect any Michigan residents who are injured in another state.

Rather, it is only residents of other states who are injured outside Michigan who

would be affected by overruling Boyd. We discern no reason to believe that

(continued…)

construction require that Michigan courts determine the Legislature’s intent from

its words, not from its silence.” (Emphasis in original.)

12

persons who neither live in Michigan nor suffer an injury in Michigan harbor

expectations of receiving Michigan workers’ compensation coverage, let alone

that any such expectations are so embedded and fundamental that real-world

dislocations will arise.

Moreover, nonresidents who are injured in other states remain free to seek

workers’ compensation benefits from the states in which they live or suffer injury.

For example, plaintiff suffered an injury in his home state of Florida and obtained

benefits under the Florida workers’ compensation system. We see no indication

that, as a Florida resident who was injured in Florida, plaintiff harbored an

expectation of receiving benefits under the Michigan workers’ compensation

system in addition to the benefits he received from the Florida system.12

In considering the reliance interests at stake, we believe it is significant that

the holding in Roberts has not consistently been the law in Michigan since 1932.

In truth, Roberts was legislatively overruled by the 1943 amendments of the

workers’ compensation act. Indeed, the Wolf decision recognized the legislative

abrogation and properly applied the plain language of MCL 418.845 on the

ground that the Roberts analysis was inapplicable to our modern, mandatory

12
That states like Florida might not provide workers’ compensation
benefits as generously as does Michigan’s system does not alter our conclusion.
Any difference in the level of benefits afforded simply reflects a difference in the
policy choices made by each sovereign state. The citizens of Florida through their
elected representatives are free to fashion their workers’ compensation system as
they see fit. If a Florida resident (such as plaintiff) believes that more generous
(…continued)

13

workers’ compensation system. Plaintiff has offered no evidence that chaos

erupted, or that practical, real-world dislocations arose, in the period between the

Legislature’s abrogation of Roberts in 1943 and this Court’s Boyd decision in

1993.13

In addition, we believe that the clarity of the statutory language suggests

that overruling Boyd will advance rather than disrupt reliance interests. Indeed,

we made this very point in Robinson:

Further, it is well to recall in discussing reliance, when
dealing with an area of the law that is statutory . . . , that it is to the
words of the statute itself that a citizen first looks for guidance in
directing his actions. This is the essence of the rule of law: to know
in advance what the rules of society are. Thus, if the words of the
statute are clear, the actor should be able to expect, that is, rely, that
they will be carried out by all in society, including the courts. In
fact, should a court confound those legitimate citizen expectations
by misreading or misconstruing a statute, it is that court itself that
has disrupted the reliance interest. When that happens, a subsequent
court, rather than holding to the distorted reading because of the
doctrine of stare decisis, should overrule the earlier court’s

(continued…)

benefits should be provided, the remedy lies with the Florida legislature, not with

this Court.

13
Notably, with the single exception of Austin in 1968, the published
decisions before Boyd had not questioned that the Legislature’s 1943 amendment
superseded Roberts. Of the nine cases that cited MCL 418.845 or its predecessor
between 1950 and 1992, no case other than Austin suggested that Roberts
continued to govern despite the 1943 amendment. See Daniels, supra; Austin,
supra; Rodwell, supra; Crenshaw, supra; Jensen, supra; Shaw, supra; Wolf,
supra; Bell, supra; and Hall, supra.

Thus, overruling Boyd will not produce chaos or practical, real-world
dislocations because we are not creating a “new” rule of law. On the contrary, our
decision simply restores the law to that which existed before the aberrational
decision in Boyd.

14

 misconstruction. The reason for this is that the court in distorting
the statute was engaged in a form of judicial usurpation that runs
counter to the bedrock principle of American constitutionalism, i.e.,
that the lawmaking power is reposed in the people as reflected in the
work of the Legislature, and, absent a constitutional violation, the
courts have no legitimacy in overruling or nullifying the people’s
representatives. Moreover, not only does such a compromising by a
court of the citizen’s ability to rely on a statute have no
constitutional warrant, it can gain no higher pedigree as later courts
repeat the error. [Robinson, supra at 467-468.]

The same reasoning applies here. We decline to perpetuate the distorted

construction of MCL 418.845 adopted in Boyd. Rather, we are obligated to give

effect to the statutory text to serve the fundamental expectation of our citizens that

the law means what it says. The statute here is written in a plain, straightforward

manner. Rather than give effect to this language, the Boyd Court nullified the

clear policy choice made by the Legislature and thereby undermined the legitimate

expectations of Michigan citizens that the courts will carry out the laws as they are

written.

IV. RESPONSE TO JUSTICE KELLY’S DISSENT

In her dissent, Justice Kelly disagrees with the legislative policy reflected in

the clear language of MCL 418.845. She shares the Boyd majority’s view that the

Legislature’s policy choice is “‘undesirable’” and “‘unduly restrictive.’” Post at

10 (quoting with approval from Boyd, supra at 523-524). Justice Kelly is

certainly entitled to her personal opinion about what the law should be. She

manifestly does not, however, possess the authority to rewrite the law that the

15

people’s elected representatives have duly enacted. She nowhere explains the

source of her authority to do this.

Under our constitution, “all political power is inherent in the people.”

Const 1963, art 1, § 1. The people have chosen to vest the legislative power “in a

senate and a house of representatives.” Const 1963, art 4, § 1. The people have

not forfeited lawmaking authority to a judicial aristocracy that may simply rewrite

laws with which they disagree.

Here is a law that is perfectly clear to the reader. MCL 418.845 grants

jurisdiction to the bureau for out-of-state injuries where “the injured employee is a

resident of this state at the time of injury and the contract of hire was made in this

state.” (Emphasis added.)

Despite this unassailably clear language, Justice Kelly asserts that the Boyd

Court correctly identified the “intent behind § 845” as providing “jurisdiction over

extraterritorial injuries without regard to the employee’s residence, provided the

employment contract was entered into in Michigan with a resident employer.”

Post at 7 (emphasis added). In other words, Justice Kelly says that the employee’s

residence is simply irrelevant, despite the Legislature’s express statement to the

contrary.

Presumably, Justice Kelly denies that she is arrogating to herself the power

to rewrite the law. The clear statutory language quoted above naturally leads one

to ask this question: Precisely what part of the word “and” is difficult to

understand? Surely anyone who reads this statute can follow what it says without

16

difficulty: jurisdiction is conferred where (1) the injured employee lives in

Michigan at the time of injury and (2) the contract of hire was made in this state.

MCL 418.845. The Legislature’s use of the word “and” makes it perfectly clear to

any reader that both requirements must be met.

Despite all this, Justice Kelly has opined that the Legislature did not mean

what it so clearly said. Justice Kelly offers no explanation for how the language

of MCL 418.845 supports her interpretation. Her construction would subvert the

legislative policy reflected in the clear statutory language. In accord with our

constitutional duty, we have applied the statutory language to the facts of this case,

consistent with earlier caselaw that had prevailed before the aberrational decision

in Boyd.

Finally, we note that Justice Kelly repeats her criticisms about the

overruling of a prior decision. See her dissent in Rowland v Washtenaw Co Rd

Comm, 477 Mich 197; ___ NW2d ___ (2007). Justice Markman’s concurrence in

Rowland offers a thoughtful and illuminating response to those criticisms. I fully

endorse the views that Justice Markman expressed in that case.

V. CONCLUSION

We hold that under the plain language of MCL 418.845, the workers’

compensation bureau has jurisdiction over out-of-state injuries only where the

plaintiff was a resident of Michigan at the time of the injury and the employment

contract was made in Michigan. We must therefore overrule the decision in

17

Boyd.14 The doctrine of stare decisis as explicated in Robinson supports the

decision to overrule Boyd.15

Maura D. Corrigan
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

14
Justice Kelly incorrectly asserts that in addition to Boyd, we are also
overruling Roberts. As we have explained, Roberts was legislatively abrogated by
the 1943 amendments of the workers’ compensation act. It is unnecessary for this
Court to overrule a decision that has already been overruled by legislative action.
15
We disagree with the assertions by Justices Weaver and Kelly that we
should limit our decision to prospective application. Such prospective application
“is, essentially, an exercise of the legislative power to determine what the law
shall be for all future cases, rather than an exercise of the judicial power to
determine what the existing law is and apply it to the case at hand.” Devillers v
Auto Club Ins Ass’n, 473 Mich 562, 587 n 57; 702 NW2d 539 (2005) (emphasis in
original). This Court generally may not exercise powers properly belonging to
another branch of government. Const 1963, art 3, § 2. Moreover, “prospective
opinions are, in essence, advisory opinions, and our only constitutional
authorization to issue advisory opinions is found in Const 1963, art 3, § 8, which
does not apply in this case.” Devillers, supra at 588 n 57. Accordingly, our
holding in this case shall apply to all claimants for whom there has not been a final
judgment awarding benefits as of the date of this opinion. Id.

18

 STATE OF MICHIGAN

SUPREME COURT

KENNETH KARACZEWSKI,

Plaintiff-Appellee,

v No. 129825

FARBMAN STEIN & COMPANY and
NATIONWIDE MUTUAL INSURANCE COMPANY,

Defendants-Appellants.

_______________________________

WEAVER, J. (concurring in part and dissenting in part).

I concur in the majority’s decision to overrule Boyd v W G Wade Shows,

443 Mich 515; 505 NW2d 544 (1993), but dissent from applying this decision

retroactively. It should not be applied against this plaintiff and should only be

applied prospectively because there has been extensive reliance for years on Boyd

and its predecessors.

The Boyd Court incorrectly held, contrary to MCL 418.845, that an out-of-

state worker who is injured need not have been a resident of the state of Michigan

at the time of injury in order to claim workers’ compensation benefits. Given that

MCL 418.845 grants jurisdiction to the Workers’ Compensation Agency only if

the injured employee was a resident of the state at the time of the injury and the
contract for hire was made in Michigan, nonresident injured employees are not

entitled to workers’ compensation benefits.

I dissent from the majority’s decision to apply its ruling retroactively, given

that Boyd has been the law in this state for 14 years—a substantial period during

which nonresident injured employees and related parties have relied on the

elimination of the residency requirement. As this Court held in Pohutski v City of

Allen Park 465 Mich 675, 696; 641 NW2d 219 (2002), there are

three factors to be weighed in determining when a decision should
not have retroactive application. Those factors are: (1) the purpose to
be served by the new rule, (2) the extent of reliance on the old rule,
and (3) the effect of retroactivity on the administration of justice.
People v Hampton, 384 Mich 669, 674; 187 NW2d 404 (1971). In
the civil context, a plurality of this Court noted that Chevron Oil v
Huson, 404 US 97, 106-107; 92 S Ct 349; 30 L Ed 2d 296 (1971),
recognized an additional threshold question whether the decision
clearly established a new principle of law. Riley v Northland
Geriatric Center (After Remand), 431 Mich 632, 645-646; 433
NW2d 787 (1988) (Griffin, J.).

Weighing the three factors leads to the conclusion, as in Pohutski, that

prospective application is appropriate here. First, the purpose of the new rule is to

correct an error in the interpretation of MCL 418.845. Prospective application

would further this purpose. Second, there has been extensive reliance for 14 years

on Boyd’s interpretation of MCL 418.845. In addition to reliance by the courts,

insurance decisions have undoubtedly been predicated on this Court’s

longstanding interpretation of MCL 418.845 under Boyd. Nonresident injured

employees, like plaintiff, who initially entered into contracts for hire in Michigan,

2

but later agreed to work outside Michigan, have relied on the ability to obtain

workers’ compensation benefits based on their employment relationship with

Michigan employers. Prospective application acknowledges that reliance and

assures the fair resolution of those pending workers’ compensation cases. Finally,

prospective application minimizes the effect of this decision on the administration

of justice because retroactive application would require in many cases new

proceedings before the agency to reverse any benefit awards made pursuant to

Boyd.

Elizabeth A. Weaver

3

 STATE OF MICHIGAN

SUPREME COURT

KENNETH KARACZEWSKI,

Plaintiff-Appellee,

v No. 129825

FARBMAN STEIN & COMPANY and
NATIONWIDE MUTUAL INSURANCE
COMPANY,

Defendants-Appellants.

KELLY, J. (dissenting).

Today the majority adds to its exponentially growing list of overturned

precedents.1 The well-reasoned decision of Roberts v I X L Glass Corp2 has been

the law of this state for the past 74 years. In 1993, this Court revisited the

reasoning of Roberts in Boyd v W G Wade Shows,3 affirmed the decision, and

rejected many of the same arguments that the majority makes today. Nothing has

changed since this Court’s decision in Boyd other than the makeup of the Court.

At no time has the Legislature taken steps to reenact or amend any precursor to, or

1
For a more detailed review of the majority’s proclivity at overturning
precedent, see my partial dissent in Rowland v Washtenaw Co Rd Comm, 477
Mich 197; ___ NW2d ___ (2007) (Kelly, J., concurring in part and dissenting in
part).
2
259 Mich 644; 244 NW 188 (1932).
3
443 Mich 515; 505 NW2d 544 (1993).
the current version of, MCL 418.845 in response to this Court’s decisions in

Roberts or Boyd. Because I believe that in those cases this Court properly

effectuated the Legislature’s intent when enacting § 845, I must disagree with the

decision to overrule Boyd.

I. MCL 418.845, ROBERTS, AND BOYD

The sole question here is whether appellants’ proposed overruling of Boyd

is justified under the standard for departing from the rule of stare decisis discussed

in Robinson v Detroit, 462 Mich 439; 613 NW2d 307 (2000).

The statute at the heart of this question is MCL 418.845, which provides:

The bureau shall have jurisdiction over all controversies
arising out of injuries suffered outside this state where the injured
employee is a resident of this state at the time of injury and the
contract of hire was made in this state. Such employee or his
dependents shall be entitled to the compensation and other benefits
provided by this act.

The landmark case interpreting the precursor to § 8454 is Roberts. The

question presented in Roberts was:

4
The precursor to § 845 is found at part III, § 19 of 1921 PA 173. 1929 CL
8458 provided:

The industrial accident board shall have jurisdiction over all
controversies arising out of injuries suffered without the territorial
limits of this state, in those cases where the injured employee is a
resident of this state at the time of the injury, and the contract of hire
was made in this state, and any such employee or his dependents
shall be entitled to the compensation or death benefits provided by
this act.

2

 [W]hether an employee whose contract for employment is
entered into in Michigan with a resident employer who is under the
workmen’s compensation act . . . for services to be rendered wholly
outside of the State of Michigan is within the terms of the act so that,
if otherwise entitled thereto, he may be awarded compensation
notwithstanding the accident occurred in another State and that the
employee was at no time a resident of Michigan. [Roberts v I X L
Glass Corp, 259 Mich 644, 644-645; 244 NW2d 188 (1932).]

Like the appellants here, the appellants in Roberts contended that the residency

requirement of the precursor to § 845 constituted a limitation on the jurisdiction of

the Industrial Accident Board. Id. at 647. However, the Roberts Court concluded

that the Legislature could not have intended such a result. Among other things,

the residency requirement was embodied in the procedural part of the act, not in

the part that defines and fixes the rights and liabilities of employers and

employees. Id.

Additionally, the Roberts Court pointed out that part III, § 19 conflicted

with § 6 of the act.5 The Court stated that § 6 allowed that the act protected “all

employees” regardless of the residence of the employee or the locus of the

accident. Roberts, 259 Mich at 647. Section 7 defined “employee” as “[e]very

5
Specifically, § 6, 1929 CL 8412, provided:

[S]uch employer accepts the provisions of this act for all his
businesses, and to cover and protect all employees employed in any
and all of his businesses, including all businesses in which he may
engage, and all employees he may employ while he remains under
this act . . . .

3

person in the service of another under any contract of hire . . . .” 1929 CL 8413.

This section was in full harmony with § 6. Roberts, 259 Mich at 648.

Moreover, the Roberts Court reasoned that, as a matter of legislative policy,

it would be “inconsistent . . . to deny compensation to an injured employee on the

ground that he was a nonresident, but in case of fatal injury to award

compensation to his dependents regardless of residence or citizenship.” Id.

Therefore, it concluded, the “reasonable construction and the one necessary to

carry out the legislative intent appearing from the whole act is that it covers

nonresident as well as resident employees in those cases wherein the contract of

employment is entered into in this State with a resident employer.” Id. at 648-649.

The Roberts Court added that its construction was in accord with the “humane

purposes” of the act. Id. at 649.

Nearly 61 years later, in Boyd, this Court revisited the reasoning and

holding of Roberts. In that case, the employee was an Illinois resident who

entered into a contract of employment in Michigan and was injured on the job in

Indiana. Boyd v W G Wade Shows, 443 Mich 515, 516; 505 NW2d 544 (1993).

The Court determined that the Bureau of Workers’ Disability Compensation had

jurisdiction to award benefits under the Worker’s Disability Compensation Act

(WDCA). MCL 418.101 et seq. It noted that Roberts was the landmark case that

interpreted an earlier version of § 845 and set forth the rule of law regarding

extraterritoriality. Id. at 517-518.

4

 The Boyd Court noted that, although the Court of Appeals had reaffirmed

the holding and reasoning of Roberts in Austin v W Biddle Walker Co,6 the Court

of Appeals had begun to interpret § 845 in contravention of Roberts. Id. at 521-

522, citing Wolf v Ethyl Corp, 124 Mich App 368; 335 NW2d 42 (1983), and Hall

v Chrysler Corp, 172 Mich App 670; 432 NW2d 398 (1988). Boyd expressly

rejected the Court of Appeals reasoning in those cases that, because Roberts had

been decided at a time when the act was elective, Roberts was no longer valid.

Boyd, 443 Mich at 522-523.

Specifically, Boyd noted that “[t]he fact that the act became compulsory

subsequent to Roberts is irrelevant; the requirements of § 845 have remained

intact.” Id. at 523. Moreover, the Court wrote, “it is the Supreme Court’s

obligation to overrule or modify case law if it becomes obsolete, and until this

Court takes such action, the Court of Appeals and all lower courts are bound by

that authority. . . . Because this Court has never overruled Roberts, it remains

valid precedent.” Id. at 523.

Boyd also noted that, if Roberts were overruled, a “significant gap” in

coverage would exist in Michigan’s workers’ compensation scheme. Id.

Specifically, it opined, all Michigan employees who suffer an out-of-state injury in

the course of their employment and who reside in neighboring states would not be

entitled to benefits. Id. at 523-524. This Court determined that Roberts remained

6
11 Mich App 311; 161 NW2d 150 (1968).

5

“an effective means of retaining a fair and consistent scheme for extraterritorial

jurisdiction.” Id. at 524.

Moreover, Boyd observed that, by that time, the Legislature had acquiesced

for 60 years in extraterritorial jurisdiction as expressed in Roberts. Id. at 525.

Following in the Legislature’s footsteps, Boyd declined to disturb the Roberts

interpretation. Accordingly, the Boyd Court concluded that “the Bureau of

Workers’ Disability Compensation shall have jurisdiction over extraterritorial

injuries without regard to the employee’s residence, provided the contract of

employment was entered into in this state with a resident employer.” Id. at 526.

II. THE ROBINSON FACTORS

In its decision today, the Court overrules Boyd. The same four justices who

signed the majority opinion signed Robinson in 2000. In it, they set forth the

factors to consider in overruling a decision while giving deference to the doctrine

of stare decisis. Robinson, supra. They indicated that a court must first consider

whether the earlier decision was wrongly decided. Robinson, supra at 464. It

must also consider whether the decision “defies ‘practical workability,’ whether

reliance interests would work an undue hardship, and whether changes in the law

or facts no longer justify the questioned decision.” Id.

With regard to the first Robinson factor, I believe that Boyd was properly

decided. The primary goal of statutory interpretation is to give effect to the

Legislature’s intent. In re MCI Telecom Complaint, 460 Mich 396, 411; 596

6

NW2d 164 (1999). In both Roberts and Boyd, this Court identified the intent

behind § 845: to provide the workers’ compensation bureau with jurisdiction over

extraterritorial injuries without regard to the employee’s residence, provided the

employment contract was entered into in Michigan with a resident employer.

The Legislature has never indicated its disapproval of Roberts or Boyd.7 It

has revised the WDCA numerous times since 1932 when Roberts was decided, but

it has taken no action that would indicate its disapproval of Roberts. In 1993, this

Court reaffirmed the reasoning and holding of Roberts in Boyd. However, the

Legislature still has not amended the statute, stated another purpose behind it, or

taken any action indicating disapproval of the Roberts and Boyd interpretation of §

845. This lack of legislative correction strongly indicates that Roberts and Boyd

properly determined and effectuated the intent behind MCL 418.845. Where this

Court has properly interpreted the intent of the Legislature, the primary goal of

statutory interpretation has been achieved. In re MCI, 460 Mich 411.

Justice Corrigan’s opinion propounds that the text of MCL 418.845 “is so

patently clear that its meaning is truly beyond any reasonable dispute.” Ante at 12.

However, the mere fact that the majority does not agree with the Roberts and Boyd

interpretation of § 845 does not make the statute “beyond any reasonable dispute.”

7
The Legislature is presumed to be aware of judicial interpretations of
existing law. Ford Motor Co v Woodhaven, 475 Mich 425, 439; 716 NW2d 247
(2006).

7

As I noted in my opinion in Rowland, “[i]t is amazing how often the members of

this majority have declared themselves more capable of understanding the law and

reaching the ‘right’ result than any justice who sat before.” Rowland, 477 Mich at

256 (Kelly, J., concurring in part and dissenting in part). Moreover, the majority’s

suggestion that the Michigan Legislature could not have drafted language

indicating its disapproval of the Roberts and Boyd interpretation of § 845

underestimates the ability of our legislators. 8

In its opinion, the majority again questions the use of legislative

acquiescence as a valid judicial tool for statutory interpretation. However, as I

noted in Rowland, legislative acquiescence is one of the many judicial tools a

court properly uses when attempting to effectuate the intent of the Legislature.

Rowland, 477 Mich at 261 (Kelly, J., concurring in part and dissenting in part). In

fact, the use of legislative acquiesce as a recognized judicial tool can be traced to

the late nineteenth century. See id. at 260, referring to Douglass v Pike Co, 101

US (11 Otto) 677, 687; 11 Otto 677; 25 L Ed 968 (1880). Significantly, the

United States Supreme Court has recently reaffirmed its use:

[T]he claim to adhere to case law is generally powerful once a
decision has settled statutory meaning, see Patterson v. McLean

8
The majority suggests that I am rewriting the statute to reflect my personal
opinions of what the law should be. That is not so. I view it my responsibility as
a justice to interpret the law. For the reasons I have stated, I believe that the
learned jurists who preceded me on the bench correctly interpreted the intent of
the Legislature in writing this statute. Notably, the Legislature has acquiesced in
their interpretation of it.

8

 Credit Union, 491 U.S. 164, 172-173, 109 S. Ct. 2363, 105 L. Ed.
2d 132 (1989) (“Considerations of stare decisis have special force in
the area of statutory interpretation, for here, unlike in the context of
constitutional interpretation, the legislative power is implicated, and
Congress remains free to alter what we have done”). In this
instance, time has enhanced even the usual precedential force[.]
[Shepard v United States, 544 US 13, 23; 125 S Ct 1254; 161 L Ed
2d 205 (2005).]

Also, Michigan’s history reveals a consistent and long use of this tool by

the courts. See Brown v Manistee Co Rd Comm, 452 Mich 354, 367-368; 550

NW2d 215 (1996), Gordon Sel-Way, Inc v Spence Bros, Inc, 438 Mich 488, 505;

475 NW2d 704 (1991), Craig v Larson, 432 Mich 346, 353; 439 NW2d 899

(1989), Wikman v City of Novi, 413 Mich 617, 638; 322 NW2d 103 (1982), Smith

v Detroit, 388 Mich 637, 650; 202 NW2d 300 (1972), Magreta v Ambassador

Steel Co, 380 Mich 513, 519-520; 158 NW2d 473 (1967), In re Clayton Estate,

343 Mich 101, 106-107; 72 NW2d 1 (1955), and Twork v Munsing Paper Co, 275

Mich 174, 178; 266 NW 311 (1936).

Accordingly, legislative acquiescence has been and continues to remain a

valid tool with which the judiciary can interpret legislative intent. Although the

majority of my colleagues has banished legislative acquiescence from its

repertoire, I and others on the Court quite appropriately may continue to use it as a

judicial tool.

I also believe that Boyd was properly decided for the reason that the public

policy concerns that existed when Boyd was decided remain today. As Boyd

stated:

9

 If the allegedly “out-dated” Roberts decision is overruled by
this Court, then a significant gap in coverage will exist in this state’s
compensation scheme. Specifically, all Michigan employees who
suffer an out-of-state injury in the course of their employment and
who reside in neighboring states will not be subject to the bureau’s
jurisdiction. We believe that such a jurisdictional scheme is not only
undesirable but also unduly restrictive. [Boyd, 443 Mich at 523-
524.]

This concern over the gap in coverage correlates with the general principle that the

WDCA, as a remedial statute, is to be liberally construed to grant, rather than

deny, benefits. DiBenedetto v West Shore Hosp, 461 Mich 394, 402; 605 NW2d

300 (2000).

The majority contends that Boyd was not properly decided. It reasons that

Boyd relied on Roberts and, when the Legislature repealed 1929 CL 84129 in
10
1943, the foundation of Roberts crumbled. This is untrue. As noted above,

numerous other factors were considered by the Roberts Court in reaching its

decision. Specifically, Roberts noted that the residency requirement was in the

9
As noted above in footnote 5, § 8412 referred to § 6 of the act as it existed
when Roberts was decided. Specifically, § 8412 provided:

[S]uch employer accepts the provisions of this act for all his
businesses, and to cover and protect all employees employed in any
and all of his businesses, including all businesses in which he may
engage, and all employees he may employ while he remains under
this act . . . .
10
I would also highlight that, even though the Legislature repealed § 8412
in 1943, it did not repeal or in any way substantively alter § 845.

10

procedural part of the act, not in the part that defines and fixes the rights and

liabilities of employers and employees. Roberts, 259 Mich at 647.

Moreover, Roberts held that, as a matter of legislative policy, it would be

“inconsistent . . . to deny compensation to an injured employee on the ground that

he was a nonresident, but in case of fatal injury to award compensation to his

dependents regardless of residence or citizenship.” Id. at 648. Roberts also noted

that its construction was in accord with the “humane purposes” of the act. Id. at

649. Therefore, contrary to the majority’s claim, the reasoning in Roberts did not

rely solely on the existence of 1929 CL 8412.

The majority also contends that Boyd was not properly decided because

Boyd relied on Roberts after the Legislature made the workers’ compensation

system mandatory. This argument was asserted before the Boyd Court and

rejected. Specifically, Boyd noted that “[t]he fact that the act became compulsory

subsequent to Roberts is irrelevant; the requirements of § 845 have remained

intact.” Boyd, 443 Mich at 523.

For the reasons stated above, I believe that Boyd was properly decided,

hence the first Robinson factor is not satisfied. Robinson, 462 Mich at 464. The

Legislature has acquiesced in the Roberts and Boyd interpretation of § 845. This

strongly indicates that this Court’s interpretation of this statute properly identified

the Legislature’s intent, and Boyd was correctly decided.

11

 The remaining Robinson factors also support affirming Boyd. Those

factors are: (1) whether the decision defies “practical workability,” (2) whether

reliance interests would work an undue hardship if the authority were overturned,

and (3) whether changes in the law or facts make the decision no longer justified.

Robinson, 462 Mich at 464.

Roberts and Boyd do not defy practical workability. Rather, the

interpretation of § 845 underlying both these cases has been an integral part of

Michigan’s workers’ compensation scheme for 74 years.11 As the Workers’

Compensation Appellate Commission indicated in the instant case, regardless of

whether the lower tribunals agreed with Roberts and Boyd, they have applied

Roberts or Boyd for decades. Accordingly, there is no practical workability

problem.

The next concern is whether reliance interests would work an undue

hardship if the authority were overturned. Robinson, 462 Mich at 464. “[T]he

Court must ask whether the previous decision has become so embedded, so

11
Justice Brickley stated in his concurrence in Boyd that even though he
believed Roberts was incorrectly decided, he concurred with the majority in Boyd
because he agreed with its determination that, “after fifty years of legislative
acquiescence, the Roberts decision has become ensconced as part of the overall
workers’ compensation scheme.” Boyd, 443 Mich at 527 (Brickley, J.,
concurring). Justice Brickley’s concern is even more applicable to the instant case
because an additional 13 years have passed since Boyd was decided. During that
period, the Roberts decision has become even more embedded as part of the
overall workers’ compensation scheme.

12

accepted, so fundamental, to everyone’s expectations that to change it would

produce not just readjustments, but practical real-world dislocations.” Id. at 466.

Overturning Roberts and Boyd would work an undue hardship. As has

been repeatedly noted, the underlying rationale of Roberts, and therefore Boyd,

has been in place for over seven decades. It is difficult to imagine a plausible

argument that this rationale has not become a fundamental part of the workers’

compensation regime. Indeed, the rationale underlying Roberts and Boyd predates

the jurists, litigators, and claimants involved in this case.

For decades, employers have been paying benefits to injured employees in

reliance on Roberts and Boyd. Will those employees be required to return their

benefits? At oral argument, appellate counsel for appellants suggested that his

clients would forgo any attempts to retrieve previously paid benefits. While the

appellants here might not seek a refund, there remain many other employers or

insurance companies that may not view past benefits paid as “water under the

bridge.” Accordingly, it seems incontestable that reliance interests would work an

undue hardship if Roberts and Boyd are overturned.

The final Robinson factor is whether changes in the law or facts make the

decision no longer justified. Robinson, 462 Mich at 464. The majority attempts to

argue that the state of the law regarding the jurisdiction of the Bureau of Workers’

Disability Compensation over extraterritorial injuries has been in a state of flux.

However, that argument crumbles under close analysis.

13

 Only two decisions of this Court have thoroughly explored the issues

presented in this case: Roberts and Boyd. Because neither had ever before been

expressly overruled, both remained good law until now.

The majority relies on Daniels v Trailer Transport Co12 for the proposition

that this Court has previously required that, before the workers’ compensation

tribunal can exercise jurisdiction, both subsections of § 845 must be met. The

plaintiff in Daniels was an Illinois resident hired by a Michigan employer under a

Texas contract of hire. Daniels v Trailer Transport Co, 327 Mich 525, 527; 42

NW2d 828 (1950). He was injured on the job in Tennessee and attempted to

obtain benefits under the Michigan workers’ compensation regime. Id. Like the

appellants in the instant case, the employer contended that the workers’

compensation commission’s jurisdiction extended only to extraterritorial injuries

where the employee resided in Michigan and contracted for employment here. Id.

at 529-530.

This Court in Daniels relied on Cline v Byrne Doors, Inc,13 for the

proposition that, “‘[u]nder the provisions in the Michigan statute on which

plaintiff relies [i.e., the precursor to § 845], his right to compensation depends on

whether he was employed by virtue of a contract of hire made in this State.’”

Daniels, 327 Mich at 530, quoting Cline, 327 Mich at 540. Applying the Cline

12
327 Mich 525; 42 NW2d 828 (1950).

14

rationale to the facts in Daniels, this Court concluded that the facts of the case did

not bring the plaintiff within the provisions of the act.14

Noticeably absent from the reasoning in Daniels was any attempt to

distinguish or overrule Roberts. Additionally, Daniels did not specify that the

commission had jurisdiction only over extraterritorial injuries of a Michigan

resident whose contract of hire was made in Michigan. Rather, the Daniels Court

simply noted that Cline required the contract of hire be made in this state.

Daniels, 327 Mich at 530. This proposition is consistent with the holding in

Roberts.

Moreover, in Austin v W Biddle Walker Co,15 the Court of Appeals opined

that the reasoning in Daniels was consistent with that of Roberts The sole issue

before the Court of Appeals in Austin was whether the Michigan Workers’

Compensation Appeal Board had jurisdiction over a nonresident employee injured

(continued…)
13
324 Mich 540; 37 NW2d 630 (1949).
14
The Daniels Court did not explicitly overrule, or even mention, Roberts.
Although the facts presented in Cline were not the same as those presented in
Daniels, the Court in Daniels did rely on Cline for the proposition quoted above.
Daniels, 327 Mich at 530. After quoting Cline, the Daniels Court noted that the
contract of hire in that case was made in Texas, whereas the contract of hire in
Cline was made in Michigan. Daniels, 327 Mich at 530. Where the contract of
hire was not made in Michigan, the Daniels Court concluded that the workers’
compensation commission exceeded its jurisdiction in making the award. Id. This
holding is consistent with Roberts and, I believe, reasonable notwithstanding the
majority’s contrary view.
15
11 Mich App 311; 161 NW2d 150 (1968).
(…continued)

15

while working out of state under a Michigan employment contract. Austin v W

Biddle Walker Co, 11 Mich App 311, 313; 161 NW2d 150 (1968). Employing the

reasoning above, the Court of Appeals in Austin concluded that Daniels and Cline

were consistent with Roberts. Id. at 318. It further concluded that Austin was

governed by Roberts. Therefore, it opined, the Workers’ Compensation Appeal

Board properly exercised jurisdiction, and, to be entitled to benefits, the

nonresident claimant had only to be injured while under a Michigan contract of

hire. Id. at 313, 318.

The majority also points to another decision by this Court, Crenshaw v

Chrysler Corp,16 to support its proposition that the law after Roberts has been in a

state of flux. However, that argument also withers under close analysis.

In Crenshaw, the plaintiff employee was injured while working out-of-state

under an Ohio contract of hire. Crenshaw v Chrysler Corp, 394 Mich 513, 515;

232 NW2d 166 (1975). This Court quoted § 845 and italicized the phrase

“contract of hire was made in this state.” Id. at 516 n 1. In finding that the out-of-

state injuries were not compensable in Michigan, this Court noted that the plaintiff

had entered into his contract of hire in Ohio. Id. at 516.

(continued…)
16
394 Mich 513; 232 NW2d 166 (1975).

16

 Again, noticeably absent from the reasoning in Crenshaw was any attempt

to distinguish or overrule Roberts. This Court in Crenshaw did not specify that

the commission had jurisdiction over extraterritorial injuries only if the employee

was hired in Michigan and was residing here when injured. Rather, this Court

simply implied that, in order to be eligible for benefits, the plaintiff had to have

entered into a Michigan contract of hire. This proposition is consistent with

Roberts.17

Therefore, the majority’s claim that two decisions of this Court have called

the reasoning of Roberts into question is inaccurate. The two decisions it cites

neither explicitly nor implicitly overruled Roberts. Rather, both Daniels and

Crenshaw were consistent with Roberts. Accordingly, Roberts was still good law

at the time this Court decided Boyd.

The majority also cites numerous Court of Appeals decisions that have

questioned the Roberts decision. However, all of them predate Boyd. As this

Court noted in Boyd:

[I]t is the Supreme Court’s obligation to overrule or modify
case law if it becomes obsolete, and until this Court takes such
action, the Court of Appeals and all lower courts are bound by that

17
The majority disagrees with my interpretation of Crenshaw. However, it
is undisputed that the Court in Crenshaw did not explicitly overrule, or even
mention, Roberts. Rather, the Court noted that the contract of hire in that case was
made out of state. It then emphasized, using italics, that the statute required that
the contract of hire be made in Michigan in order for the bureau to have
jurisdiction. Crenshaw, 394 Mich at 515-516 and 516 n 1. Such a holding is
consistent with Roberts.

17

 authority. While the Court of Appeals may properly express its
belief that a decision of this Court was wrongly decided or is no
longer viable, that conclusion does not excuse the Court of Appeals
from applying the decision to the case before it. Because this Court
has never overruled Roberts, it remains valid precedent. The rule of
law regarding extraterritorial jurisdiction as expressed in Roberts
should have been applied by the bureau in the present case. [Boyd,
443 Mich at 523 (internal citations omitted).]

Accordingly, contrary to the majority’s argument, Roberts and Boyd have

continued to remain good law until today. In conclusion, none of the Robinson

factors supports overruling Boyd.

III. RETROACTIVITY

I agree with Justice Weaver that the majority’s decision warrants

prospective application. Generally, judicial decisions are given full retroactive

effect. Pohutski v City of Allen Park, 465 Mich 675, 695; 641 NW2d 219 (2002).

But there are well-established exceptions to this rule. The Court should consider

the equities involved and, if injustice would result from full retroactivity, should

adopt a more flexible approach. Lindsey v Harper Hosp, 455 Mich 56, 68; 564

NW2d 861 (1997). Prospective application is appropriate where the holding

overrules settled precedent. Id. As was noted Pohutski:

This Court adopted from Linkletter v Walker, 381 US 618; 85
S Ct 1731[;] 14 L Ed 2d 601 (1965), three factors to be weighed in
determining when a decision should not have retroactive application.
Those factors are: (1) the purpose to be served by the new rule, (2)
the extent of reliance on the old rule, and (3) the effect of
retroactivity on the administration of justice. In the civil context, a
plurality of this Court noted that Chevron Oil v Huson, 404 US 97,
106-107; 92 S Ct 349; 30 L Ed 2d 296 (1971), recognized an
additional threshold question whether the decision clearly

18

 established a new principle of law. [Pohutski, 465 Mich at 696
(citation omitted).]

It is apparent that the majority in this case states a new rule of law. In fact,

it overturns decades of precedent. And, when a Court overturns precedent

interpreting a statute, the decision is equivalent to, and is treated as, a new rule of

law. Id. at 696-697.

The first Pohutski factor is the purpose to be served by the new rule. The

majority’s purpose in its opinion here is to correct a statutory interpretation that it

has found to be incorrect. Both prospective and retroactive application further

such a purpose. Id. at 697.

The second factor is the extent of reliance on the old rule. Id. at 696. There

are significant reliance concerns implicated by the overturning of Roberts and

Boyd. The underlying rationale of these cases has been in place for seven decades.

Attorneys, employers, insurance carriers, and various employees have relied on

the holdings of Roberts and Boyd. Prospective application acknowledges the

extensive reliance placed on the rationale of Roberts and Boyd. Retroactive

application does not.

The final Pohutski factor is the effect of retroactivity on the administration

of justice. Id. Retroactive application of this case could have serious adverse

implications for the administration of justice. Many employees have received

benefits in accord with Boyd. Under the majority’s holding, the employees could

19

be called on to give up or repay those benefits. Prospective application would

eliminate this harsh result and thus promote the administration of justice.

Accordingly, application of the Pohutski factors strongly indicates a need

for prospective application of this decision.

IV. CONCLUSION

The majority continues at its unparalleled rate of overturning this Court’s

precedent. For the reasons stated above, none of the Robinson factors supports

overruling Boyd. It was properly decided. The Legislature has taken no action to

show disagreement with the interpretation of MCL 418.845 in Roberts or Boyd.

The public policy concerns at issue when Boyd was decided remain unchanged to

this day.

Boyd does not defy “practical workability.” Indeed, various workers’

compensation tribunals have been effectively applying Boyd since 1993 and

Roberts since 1932. Reliance interests will work an undue hardship once Boyd is

overturned because its underlying principles have been enmeshed in Michigan’s

workers’ compensation regime for decades. Benefits paid to numerous injured

employees in reliance on Roberts and Boyd lie in jeopardy. Finally, no changes

exist in the law or facts to justify questioning the Boyd decision. Contrary to the

majority’s argument, the holdings of Roberts and Boyd remained good law until

today.

20

 Accordingly, for the reasons I stated earlier, giving appropriate deference to

the 74-year precedent established in Roberts and upheld by Boyd, I would affirm

the judgment of the Court of Appeals. Given that the majority has overruled Boyd

and Roberts, the Pohutski factors should be applied to determine whether the new

decision should be given retroactive application. Once those factors are weighed,

it is obvious that the decision in this case should be applied prospectively.

Marilyn Kelly
Michael F. Cavanagh

21