Analysis of the McCormick decision over-turning Kreiner
Justice Cavanagh wrote the lead opinion for the four Justices who voted to over-turn the Kreiner case. The only disagreement among them was with regard to how a justice should properly evaluate precedent. Justices Kelly and Cavanagh applied the principles of stare decisis that had been elucidated in an earlier Engler Majority decision. Justice Weaver would apply the more policy-based analysis adopted by U.S. Supreme Court Justice Roberts. Justice Hathaway would emphasize a fact-based inquiry into the effect of stare decisis or the impact of precedent on the case under consideration. She expressed her overwhelming concern that the lower court's decision in McCormick simply resulted in an unjust decision. As for the underlying analysis of "serious impairment," the four Justices were in agreement.
The Justices emphasized that the statutory language in the no fault act is clear, plain and unambiguous. If a straight-forward consideration of dictionary meanings for the statutory language is utilized, there is no foundation for engrafting on the act the "life-altering" test created by the Engler Majority in Kreiner. The majority noted that by cherry-picking the definitions they preferred, the Engler Majority had manipulated the statutory threshold away from a fact-based, common sense analysis of the general impact on a victim's over-all life. Instead, the Engler Majority in Kreiner had created a new test that emphasized the permanence of the injury and gave it "catastrophic" rather than "serious" connotations. The Justices noted that under the actual statutory language, the Legislatively-defined test is more a question of the effect of the injury on general life, rather than being a threshold test of "destruction" of normal life.
The Justices also noted that the statutory language contained no "minimum percentage" test by which a "serious" disruption must be documented. Lastly, the majority pointed out that the Legislature clearly knew how to require a "permanent" impact when it wrote the statute, since it chose to require a "permanent serious disfigurement" but did not impose a "permanent" requirement on "serious impairment."
As a result, the majority concluded that the Kreiner decision represented a significant deviation from statutory intent and from the rules of statutory interpretation promulgated even by the dissenting Justices, themselves. The majority also pointed out that through sloppy wording and judicial activisim, the Kreiner case opinion was being used to deny any recovery even to persons who met the Kreiner injury threshold.
The three dissenting Justices--holdovers from the Engler Majority--would continue to hold that McCormick's injuries were not "serious," even though they caused him to miss 14 months of work and disabled him from his pre-accident job and left him with permanent residual limitations.