(concurring in part and dissenting in part). I would affirm in part and reverse in part.
I agree with the majority that the trial court erred in denying Cheers’ motion to set aside the default. Further, for the reasons stated in Waranica v Cheers Good Time Saloons, Inc, 186 Mich App 398; 464 NW2d 902 (1990), I am also of the opinion that the trial court erred in holding that Kuikstra’s family members failed to state a cause of action under the dramshop act. Unlike the majority, however, I believe that, consistent with Waranica, the trial court correctly ruled that Kuikstra’s estate failed to state a cause of action.
In concluding that Kuikstra’s estate’s dramshop claim is not barred, the majority dismisses this Court’s opinion in Waranica as nonbinding precedent under Administrative Order No. 1990-6. I disagree.
I cannot conclude, as the majority does, that the Waranica panel’s twice-stated holding — that "the family of the intoxicated minor continues to have a dramshop right of action under subsection (4) of the 1986 amendment, even though the intoxicated minor is denied such a right,” id., p 404, and "even though the minor does not have a cause of action under the 1986 amendment, his family does,” id., p 408 — does not constitute a "rule of law” that an intoxicated minor does not have a cause of action under the amended dramshop act.
The controlling issue in both Waranica and LaGuire v Kain, 185 Mich App 239; 460 NW2d 598 *707(1990), the pre-Administrative Order No. 1990-6 case upon which the majority relies, was whether subsection (4) or subsection (10) of MCL 436.22; MSA 18.993 governs the determination of who is precluded from maintaining an action against a dramshop. Compare Waranica, p 403, with LaGuire, p 245. Waranica established that subsection (4) controls, and not subsection (10), as the LaGuire panel decided. This is no more "dicta” than the LaGuire holding which the majority prefers to follow.
While the majority may not agree with Waranica, in my view it is binding on this panel under Administrative Order No. 1990-6. Thus, to the extent that the majority opinion has chosen to rely on LaGuire and to subvert the conflict resolution procedure set forth in Administrative Order No. 1990-6,1 dissent.