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Kreiner Decision Tortures Michigan No-Fault Law
Here we go again. Our Michigan Supreme Court, recently referred to as on of the most activist court in the union, recently issued an opinion which may dramatically affect Michigan no-fault law. Kreiner disregarded the Michigan legislature's plain language under the no-fault language and added yet new hurdles to receiving benefits under our no fault statute. While bills have been introduced to the Michigan Legislature in order to restore Michigan’s no-fault law to allows claims of permanent disability, it is clear that the damage done by the Engler dominated Supreme Court of Michigan will be felt by Michigan citizens for many years into the future ….
October 7, 2004 in Kreiner, Third Party Rights | Permalink
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The "Kreiner bill" SB 1429
introduced on September 28, 2004
Bipartisan support of "Kreiner bill" evidence of need for Legislative action.
Sen. Alan Cropsey (R- Dewitt) introducted SB 1429 on September 28, 2004. The bill is co-sponsored by Mike Bishop (R- Rochester), Mark Schauer (D- Battle Creek), Robert Emerson (D- Flint), Virg Bernero (D- Lansing), Liz Brater (D- Ann Arbor).
The bill was referred to the Senate Committee on Government Affairs, chaired by Sen Ken. Sikkama (R- Wyoming)
SB 1429 --also referred to at the "Kreiner bill"-is designed to repair the damage done to the No-Fault tort threshold by the Michigan Supreme Court's controversial decision in the combined cases of Kreiner and Straub.
The intent of SB 1429 is to return the necessary state of balance the No-Fault system needs to remain viable.
Posted by: The "Kreiner bill" SB 1429 | Oct 7, 2004 2:53:32 PM
PETITION FOR REHEARING
A majority of this Court has ruled in this case that Plaintiff-Appellee Kreiner's back injury, as a matter of law, had no effect , or only a de minimis effect, on his “general ability to lead his normal life,” despite the accepted facts that he can work no more than six hours rather than his normal eight hours per day, that he can no longer do roofing work, that he cannot work on a ladder for longer than twenty minutes at a time, that he cannot lift anything over eighty pounds, that he cannot walk for more than half a mile without resting, and that he can no longer pursue rabbit hunting, one of his favorite pastimes. Emphasizing that Kreiner “was still able to perform all the work that he did before” the injury, save roofing, and that the injury “did not cause him to miss one day of work,” the majority concluded that “his life after the accident was not significantly different than it was before the accident.” Kreiner v Fischer , No 124120, slip op at 33 (Mich July 23, 2004).
The issue in the case is simply whether Mr. Kreiner's injury “affect[ed his] general ability to lead his . . . normal life,” as those terms were used by the Legislature in amending the No-Fault Act in 1995. MCL 500.3135(7). We submit, respectfully, that the common man or woman, if asked whether his or her “general ability to lead his or her normal life” would be “affect[ed]” by an injury that would curtail, for the rest of their lives, their normal workday by a factor of 25 percent and would otherwise place limits on their professional and private activities comparable to Mr. Kreiner's, they would, all of them , not hesitate to answer “yes.” That is the simple, common-sense import of the plain language that the Legislature actually used in defining the meaning of “serious impairment of bodily function,” the threshold requirement under the No-Fault Act for submitting a tort claim to a jury.
The majority, however, reached the opposite conclusion with respect to Mr. Kreiner by asking a different question: Whether Mr. Kreiner's injury “affect[ed] his overall or broad ability to conduct the course of his normal life.” Slip op at 33. While we submit that the effects of Mr. Kreiner's injury are serious enough to satisfy the majority's reformulation of the statutory test, it is on its face clearly a stricter standard, making for a closer call. It is also plainly a more subjective standard, making its application subject to a wider range of judicial discretion and, we are constrained to add, manipulation.
The majority's reformulation of the statutory test turned on the majority's interpretation of the terms “general ability” and “to lead,” and it consulted three different dictionaries to discern their meanings. Although the compound word “general ability” is a noun that is independently defined in one of the majority's dictionaries, the majority turned instead to the adjective “general,” and selected the following definition: “dealing with broad, universal, or important aspects.” Slip op at 24 (quoting Random House Webster's College Dictionary (1991)). The majority also looked to the meaning of the word “generally,” which it defined as “for the most part.” Id. And the majority found that the word “lead” means “to conduct or bring in a particular course.” Slip op at 24-25 (quoting Random House Webster's Unabridged Dictionary (2001)). Combining these definitions, the majority concluded that in order to satisfy the statutory threshold, a plaintiff's impairment must be “of sufficient duration” and “pervasive[ness],” id. at 30, to “affect his overall or broad ability to conduct the course of his normal life.” Id. at 33.
This Court has often observed that in construing the intent of the Legislature, it should be assumed that the Legislature meant to adopt the “plain meaning” of the words and phrases it used. See, e.g., Parkwood Ltd Dividend Hous Ass'n v State Hous Dev Auth , 468 Mich 763, 772, 664 NW2d 185 (2003) (“First, we examine the language of the statute. ‘If the statute's language is clear and unambiguous, we assume that the Legislature intended its plain meaning, and we enforce the statute as written.' ”) (internal citations omitted). The statutory language at issue here -- “affects the person's general ability to lead his or her normal life” -- uses common, everyday terms in a straightforward, uncomplicated way, and recourse to the dictionary is unnecessary to understand their plain meaning. Indeed, the statutory terms seized upon by the majority -- “general ability” and “to lead” -- originated in this Court's decision in Cassidy v McGovern , 415 Mich 483, 330 NW2d 22 (1982), and were adopted by the Legislature in its 1995 amendments to the No-Fault Act. Thus, this language has governed the question whether the plaintiff's injury caused a “serious impairment of body function” in scores of cases before courts throughout Michigan for almost 14 years. Yet we have been unable to find a single case that attaches interpretative significance, let alone outcome-determinative significance, to the terms “general ability” or “to lead.” Nor have we found a single case that finds these terms at all unclear, or consults a dictionary to discern their meaning. The majority's decision demonstrates that the meaning of statutory words not only can be discerned, but can be changed, by consulting a dictionary. Indeed, one need only compare the text of the Legislature's test -- “affects the person's general ability to lead his or her normal life” -- with the text of the majority's reformulation of that test -- “affect his overall or broad ability to conduct the course of his normal life” -- to know that the two simply are not the same and that the majority's test is both stricter and more subjective.
But even if the meaning of the text of MCL 500.3135(7) was not plain on its face, then surely the most important term to define is the very term -- “general ability” -- at issue here. As noted, Webster's Third New International Dictionary , which the majority consulted for the definition of “general,” also independently defines the term “general ability” as follows: “general ability n : ABILITY.” Thus, according to Webster's Third, the compound word “general ability” is a noun that means simply “ability.”
We respectfully submit that if a person's “normal life” includes working to earn a living, his ability -- and his general ability -- to lead that life would plainly be “affect[ed]” by an impairment that permanently curtails the person's daily ability to work at his occupation by a factor of 25 percent. Again, that is the common-sense understanding of the common, everyday terms used by the Legislature. The majority arrived at its contrary, sharply counterintuitive conclusion -- that a permanent, 25 percent curtailment of a person's day-in, day-out ability to earn his living had no effect on his “general ability to lead his normal life” -- only by eschewing the dictionary definition of the term, “general ability,” actually used by the Legislature.
In its initial order remanding this case to the Court of Appeals for reconsideration, this Court unanimously noted that an injury need not have a “serious” effect on the plaintiff's “general ability to lead his or her normal life” in order to satisfy the tort threshold of MCL 500.3135(7). As the Court put it: “Although a serious effect is not required, any effect does not suffice either.” Kreiner v Fischer , 468 Mich 885, 661 NW2d 234 (2003) (emphases in original). This conclusion is obviously correct, at least if the text of the statutory provision is to be respected; the Legislature could easily have modified the word “affects” with the word “seriously” if it had intended to place such a qualification on the tort threshold. But it did not. The majority's decision here, however, does, for it can only be understood as requiring that a plaintiff's impairment have a serious effect on the plaintiff's normal life. Mr. Kreiner's impairment, according to the majority, was simply not sufficiently pervasive and incapacitating -- that is, was not sufficiently serious -- to “affect his overall or broad ability to conduct the course of his normal life.” The majority interpretation, therefore, is indistinguishable from rewriting the statute to require an impairment that “ seriously affects the person's general ability to lead his or her normal life.”
Which brings us to the majority's observation that its interpretation of MCL 500.3135(7) is necessary to preserve the Legislature's “great compromise (no-fault benefits in return for limited tort remedies) that . . . is an indispensable requirement to make no-fault viable.” Slip op at 35. The Legislature in 1995 recast the great no-fault compromise, largely out of dissatisfaction with this Court's widely divergent prior decisions interpreting the “serious impairment of bodily function” tort threshold. If the statutory tort threshold constitutes the “no-fault temple,” as the majority put it, then that temple does not rest on the “general ability” inquiry alone; it has many independent pillars carefully constructed by the Legislature in 1995. There has been no dispute in this case, nor could there conceivably be, that the 1995 statute (1) instructed courts, rather than juries, to resolve the threshold tort question in each case, apart from material “factual dispute[s] concerning the nature and extent of the [plaintiff's] injuries”; (2) categorically foreclosed recovery of noneconomic loss by “a party who is more than 50% at fault”; (3) foreclosed recovery of noneconomic losses by a plaintiff who was the owner of an uninsured vehicle; (4) added MCL 500.3135(7)'s specific definition of “serious impairment of a body function,” including the requirement that the impairment be to “an important body function,” a requirement that DiFranco had rejected; and (5) also included in the definition of “serious impairment of a body function” the subjective requirement, contrary to Cassidy , that the impairment “affect the person's general ability to lead his or her normal life.”
Although the import of only the fifth change is at issue here, all of these changes, together, were calculated to ensure appropriate limits over the number and nature of tort suits for noneconomic loss. And each was precise in its prescription, reflecting a carefully considered compromise. The end result, according to the amendment's legislative history, was intended to “weed out” only what the Legislature called “ undeserving and frivolous cases.” Appendix to Defendant's Brief 54a - House Legislative Analysis Section, HB 4341 as enrolled, 1995 PA 222 (12/18/95), p 2 (emphases added). And while the Legislature, to be sure, intended for judges to prevent “frivolous” cases from getting to a jury, it did not intend to set the tort threshold so high as to bar cases like Mr. Kreiner's.
As noted at the outset, the majority emphasized that Mr. Kreiner “was still able to perform all the work that he did before” the injury (save roofing). That is true, but it would also be true if his impairment had restricted his normal eight-hour workday by a factor of 75 percent; and there is nothing in the majority's opinion making clear that its tort threshold would be satisfied by even this effect on Mr. Kreiner's life. The majority also emphasized that Mr. Kreiner's injury “did not cause him to miss one day of work.” That too is true. But it has caused him to miss two hours of work every day for the last six years, and will for the rest of his life . The issue for Mr. Kreiner is simply whether his “general ability to lead his . . . normal life” has been “affect[ed]” by his injury. Not “seriously” or “substantially” affected, but just “affected.” We submit that the text of the statute, and the principles of judicial textualism that require courts to apply the words of the legislature as written, make clear that the answer is yes.
CONCLUSION
It is with the utmost respect for the Members of this Court that we offer the foregoing criticisms of the decision in this case, and urge that the Petition for Rehearing be granted.
Posted by: PETITION FOR REHEARING | Oct 7, 2004 3:11:07 PM
No-fault experts say that Senate Bill 1429 — also known as the “Kreiner Fix Bill” — would make it easier for plaintiffs to meet the serious impairment threshold by clarifying what the Legislature actually meant by “serious impairment of body function.”
The legislation was drafted in response to the high court’s decision in Kreiner v. Fischer, which provided that an accident victim has not suffered a serious impairment of body function unless the injury affects the course or trajectory of the person’s normal life.
The bill’s sponsor, Sen. Alan Cropsey, R-Dewitt, said he introduced it because Kreiner did not accurately reflect the Legislature’s intent.
“No-fault was set up to replace the tort system,” he explained. “Mr. Kreiner’s ability to work was decreased by 25 percent. When a person’s income is diminished as a result of an auto accident, that’s serious and should be covered.”
The bill, which would be retroactive to July 22, 2004, the day before the court decided Kreiner, seeks to amend MCL 500.3135(7) to change the definition of serious impairment of body function from “an objectively manifested impairment of an important body function that affects the person’s general ability to lead his or her normal life” to “an objectively manifested impairment of an important body function that affected the person’s normal life in a manner, and for a time, that was not clearly minor.”
According to the Coalition Protecting Auto No-Fault (CPAN), one of the bill’s many supporters, excluding only those who suffered “clearly minor injuries” is exactly what the doctor ordered.
“Victims who suffer brain injuries, spinal injuries, bone fractures, injuries requiring surgery, injuries [affecting] the ability to walk, run, see, hear, talk and think, were never intended to be excluded from noneconomic loss compensation under the Michigan no-fault system,” said CPAN spokesperson Michael Dabbs of the Brain Injury Association of Michigan.
CPAN’s legal advisor, Lansing attorney George T. Sinas, explained the bill is designed to correct the court’s misinterpretation of 1995 PA 222, which amended the No-Fault Act in order to eliminate frivolous claims.
“CPAN believes that the Kreiner decision was not only wrong, but that it has seriously disrupted the delicate balance that must exist if our Michigan no-fault system is going to be preserved,” Sinas said. “The decision has thrown the balance way out of whack. It will disqualify hundreds if not thousands of innocent accident victims who have sustained significant injury and who were never intended to be disqualified by the form of no-fault that Michigan adopted in 1973. The original Michigan threshold and the threshold that was amended in 1995 were designed to eliminate clearly minor injuries. The threshold was never intended to disqualify from noneconomic compensation people like Mr. Kreiner, who lost 25 percent of his ability to work.”
But Detroit attorney Daniel S. Saylor, counsel for the Kreiner and Straub defendants, told Lawyers Weekly the legislation is dangerous because it would completely eliminate the threshold.
“If this bill passes there will be no threshold,” Saylor said. “The door will be wide open. There may be no door. In fact, they may as well take the walls down.”
Mary T. Nemeth, who has authored numerous amicus briefs for various insurance companies, agreed, characterizing the proposed amendment as “a dramatic change.”
“It would lower the threshold tremendously to the lowest point since the No-Fault Act was adopted for something that is not clearly minor,” she observed. “Basically, if it is something beyond trivial or not de minimus you’ll go to the jury.”
In the spirit of cooperation, medical care providers, including the Brain Injury Association of Michigan, the Michigan College of Emergency Physicians, the Michigan Health and Hospital Association and others, have partnered with the Michigan Trial Lawyers Association to protect no-fault rights.
Moreover, in a rare show of bipartisanship, four Democrats signed onto Cropsey’s bill.
Explaining why she signed the bill, Sen. Liz Brater, D-Ann Arbor, said, “It’s important to maintain the balance in Michigan’s no-fault system. The Kreiner decision threw that out of balance. We’re just trying to restore the intention of the Legislature.”
Posted by: Kreiner Fix Bill | Oct 11, 2004 8:27:31 AM
