Henry v. Dow Chemical Co.

KELLY, C.J.

(concurring). I fully agree with and sign the majority opinion in this case. I write for the sole purpose of responding to Justice Young’s comments regarding the majority’s respect for the doctrine of stare decisis. Justice YOUNG repeats a claim that he and Justices CORRIGAN and MARIíMAN have published numer*510ous times this term1 with the same string of citations.2 The claim is that their colleagues who comprise the majority in this case have been ignoring precedent. A review of the cases in the string citation serves to illustrate that the claim is simply false.

Justice YOUNG claims that in Vanslembrouck v Halperin,3 the Court ignored Vega v Lakeland Hosps.4 However, Vanslembrouck is distinguishable from Vega because Vega determined that MCL 600.5851(1) is a savings provision, whereas Vanslembrouck held that MCL 600.5851(7) is a statute of limitations. Thus, these cases examined the effect of altogether different statutory provisions.

Justice YOUNG also claims that in Hardacre v Saginaw Vascular Services,5 the Court failed to follow Boodt v Borgess Med Ctr.6 However, in Hardacre, the Court denied leave to appeal because the allegations in the plaintiffs notice of intent to file an action did not need to comply with Boodt. In Hardacre, the burden of explication of the standard of care was minimal.7

*511Nor did the Court ignore precedents with which it disagrees in Sazima v Shepherd Bar & Restaurant.8 Justice YOUNG claims that the Court failed to follow Chrysler v Blue Arrow Transport Lines.9 However, Sazima involved exceptions to the “going and coming” rule as set forth in Camburn v Northwest School Dist.10 Thus, the Court was not bound by Chrysler.

Justice YOUNG next claims the Court ignored Smith v Khouri11 when it decided Juarez v Holbrook12 However, in Juarez, it was undisputed that the trial court performed a reasonableness analysis in calculating the proper attorney fee award. Therefore, a remand in light of Smith was unnecessary.

Likewise, Justice YOUNG is incorrect in claiming that the Court failed to enforce Thornton v Allstate Ins Co13 and Putkamer v Transamerica Ins Corp of America14 in Scott v State Farm Mut Auto Ins Co.15 In Scott, the Court of Appeals undertook a thorough analysis of the relevant no-fault jurisprudence and applied precedent as it has been understood for nearly 30 years.

Finally, the Court did not fail to abide by Rowland v Washtenaw Co Rd Comm16, in Chambers v Wayne Co Airport Auth.17 Chambers interpreted MCL 691.1406, *512while Rowland interpreted MCL 691.1404(1). Thus, the cases dealt with different statutory provisions and the Court was not bound to extend Rowland to the statute at issue in Chambers.

In summary, the accusation that the Court has been ignoring precedent is incorrect. Had other justices been in the majority in some of the decisions complained about, they might well have extended existing precedent to a new area of the law. But the refusal of those in the majority in this case to so extend precedent is quite different from a refusal on their part to apply it. This is a distinction that Justices Young, Corrigan, and Markman would do well to concede.

See, e.g., Petersen v Magna Corp, 484 Mich 300, 391-392; 773 NW2d 564 (2009) (Markman, J., dissenting); Chambers v Wayne Co Airport Auth, 483 Mich 1081 (2009) (Corrigan, J., dissenting); Scott v State Farm Mut Auto Ins Co, 483 Mich 1032 (2009) (Corrigan, J., dissenting); Beasley v Michigan, 483 Mich 1025 (2009) (Corrigan, J., dissenting); Juarez v Holbrook, 483 Mich 970 (2009) (Markman, J., dissenting). Justice Young joined the dissenting statements in Chambers, Scott, Beasley, and Juarez.

Post at 528 n 28.

Vanslembrouck v Halperin, 483 Mich 965 (2009).

Vega v Lakeland Hosps at Niles-St Joseph, Inc, 479 Mich 243; 736 NW2d 561 (2007).

Hardacre v Saginaw Vascular Services, 483 Mich 918 (2009).

Boodt v Borgess Med Ctr, 481 Mich 558; 751 NW2d (2008).

See Roberts v Mecosta Co Gen Hosp (After Remand), 470 Mich 679, 694 n 12; 684 NW2d 711 (2004).

Sazima v Shepherd Bar & Restaurant, 483 Mich 924 (2009).

Chrysler v Blue Arrow Transport Lines, 295 Mich 606; 295 NW 331 (1940).

Camburn v Northwest School Dist, 459 Mich 471, 478; 592 NW2d 46 (1999).

Smith v Khouri, 481 Mich 519; 751 NW2d 472 (2008).

Juarez, supra.

Thornton v Allstate Ins Co, 425 Mich 643; 391 NW2d 320 (1986).

Putkamer v Transamerica Ins Corp of America, 454 Mich 626; 563 NW2d 683 (1997).

Scott, supra.

Rowland v Washtenaw Co Rd Comm, 477 Mich 197; 731 NW2d 41 (2007).

Chambers, supra.