Woodring v. Phx. Ins. Co.

• Decision Date: 28 June 2018
• Docket Number: No. 324128,324128
• Citation: 325 Mich.App. 108,923 N.W.2d 607
• Parties: Tamara WOODRING, Plaintiff-Appellee, v. PHOENIX INSURANCE COMPANY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

325 Mich.App. 108
923 N.W.2d 607

Tamara WOODRING, Plaintiff-Appellee,
v.
PHOENIX INSURANCE COMPANY, Defendant-Appellant.

No. 324128

Court of Appeals of Michigan.

Submitted May 9, 2018, at Grand Rapids.
Decided June 28, 2018, 9:10 a.m.

West Michigan Injury Lawyers, PLC (by Matthew G. Swartz ) for plaintiff.

Law Offices of Catherine A. Gofrank (by Mary Ann Hart ) for defendant.

Before: Ronayne Krause, P.J., and Markey and Riordan, JJ.

Ronayne Krause, P.J.

923 N.W.2d 609

325 Mich.App. 111

Defendant appeals as on leave granted, pursuant to an order of remand from our Supreme Court, the trial court’s denial of summary disposition in defendant’s favor and grant of summary disposition in plaintiff’s favor. For purposes of the instant appeal, the facts are undisputed. Plaintiff’s employer provided her with a vehicle, which was insured by defendant. Plaintiff went to a self-serve spray car wash in early February, parked but left the vehicle running, began washing the vehicle, and as she worked her way around to the rear of the vehicle, she

325 Mich.App. 112

slipped and fell, suffering serious injuries for which she sought benefits under the no-fault act, MCL 500.3010 et seq . It is unknown why plaintiff slipped, or what she slipped on, but she believes it may have been ice. It is undisputed that plaintiff was not entering, occupying, exiting, or touching the vehicle at the time of her fall, although she was using the car wash’s sprayer wand. The trial court’s denial and grant of summary disposition was based in significant part on the fact that precedent from our Supreme Court, which was confusing, had not clearly overruled precedent from this Court, which was therefore still good law. We agree and affirm.

As an initial matter, the remand order from our Supreme Court reads, in its entirety, as follows:

By order of September 27, 2016, the application for leave to appeal the March 3, 2015 order of the Court of Appeals was held in abeyance pending the decision in Spectrum Health Hospitals v. Westfield Ins. Co. (Docket No. 151419). On order of the Court, the case having been decided on June 30, 2017, 500 Mich. [1024, 897 N.W.2d 166] (2017), the application is again considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we REMAND this case to the Court of Appeals for consideration as on leave granted. Among the issues to be considered, the Court of Appeals shall address whether the causal connection between the plaintiff’s injuries and the maintenance of a motor vehicle as a motor vehicle is more than incidental, fortuitous, or "but for." Thornton v. Allstate Ins. Co. , 425 Mich. 643, 659 [391 N.W.2d 320] (1986). [ Woodring v. Phoenix Ins. Co. , order of the Michigan Supreme Court, entered October 5, 2017 (Docket No. 151414).]

The decision in Spectrum consisted entirely of an order remanding that case to this Court for reconsideration in light of Covenant Med. Ctr. Inc. v. State Farm Mut. Auto. Ins. Co. , 500 Mich. 191, 895 N.W.2d 490 (2017). That case addresses whether a healthcare provider has a

325 Mich.App. 113

statutory cause of action against an insurer for the payment of PIP benefits; it does not appear to address any issues relevant to the instant appeal.

Plaintiff argues that the issue specified for consideration by our Supreme Court was not argued in the trial court and, therefore, is allegedly unpreserved. It is true that defendant only mentioned the requirement in its brief and provided no supporting argument whatsoever. However, at the motion hearing, defendant did not present an argument to the effect that plaintiff’s act of washing her vehicle did not constitute a sufficient causal nexus, but rather that the car wash was "just merely a fortuitous location where the accident happened." Defendant clearly makes a significantly more thorough argument on appeal, but that does not preclude appellate consideration when the issue itself is not wholly novel. See Steward v. Panek , 251 Mich. App. 546, 554, 652 N.W.2d 232 (2002). In any event, because we may not disregard explicit and comprehensible instructions given to us by our Supreme

923 N.W.2d 610

Court, plaintiff’s argument is misplaced. We will address this issue second.

A grant or denial of summary disposition is reviewed de novo on the basis of the entire record to determine whether the moving party is entitled to judgment as a matter of law. Maiden v. Rozwood , 461 Mich. 109, 118, 597 N.W.2d 817 (1999). When reviewing a motion under MCR 2.116(C)(10), which tests the factual sufficiency of the complaint, this Court considers all evidence submitted by the parties in the light most favorable to the nonmoving party and grants summary disposition only if the evidence fails to establish a genuine issue regarding any material fact. Id . at 120, 597 N.W.2d 817. The interpretation and application of statutes, rules, and legal

325 Mich.App. 114

doctrines is reviewed de novo. Estes v. Titus , 481 Mich. 573, 578–579, 751 N.W.2d 493 (2008).

Much of the instant appeal turns on whether this Court’s opinion in Musall v. Golcheff , 174 Mich. App. 700, 436 N.W.2d 451 (1989), which held that injuries caused by a car wash wand were compensable under the no-fault act, is precedentially binding. Defendant argues that it is not binding pursuant to MCR 7.215(J)(1), the "first-out rule," while citing an unpublished opinion that is clearly not binding under MCR 7.215(C)(1). Unpublished cases are significantly less persuasive; this Court may not be strictly bound to follow older published cases, but traditionally regards them as retaining some authority, at least if they were not disputed by some other contemporaneous case. Indeed, MCR 7.215(J)(1) does not state, as does MCR 7.215(C)(1), that older cases are not precedentially binding, only that later ones must be followed. In contrast, MCR 7.215(C)(1) explicitly states that unpublished opinions "should not be cited for propositions of law for which there is published authority," whereas no similar restriction applies under MCR 7.215(J)(1). Defendant’s argument is therefore, disingenuous.

Our Supreme Court "recognizes the maxim expressio unius est exclusio alterius ; that the express mention in a statute of one thing implies the exclusion of other similar things." Bradley v. Saranac Community Sch. Bd. of Ed. , 455 Mich. 285, 298, 565 N.W.2d 650 (1997). Interpretation of a court rule follows the general rules of statutory construction. Grievance Administrator v. Underwood , 462 Mich. 188, 193–194, 612 N.W.2d 116 (2000). We think it reasonable to draw the negative inference that we are not strictly required to follow uncontradicted opinions from this Court decided before November 1, 1990, but we think they are nevertheless

325 Mich.App. 115

considered to be precedent and entitled to significantly greater deference than are unpublished cases. Consequently, we are not impressed by the suggestion that Musall has no precedential effect simply because it is an older case.

That being said, this Court may not follow any opinion previously decided by this Court, no matter when, to the extent that opinion conflicts with binding precedent from our Supreme Court, which may be essentially anything it issues that conforms to Const. 1963, art. 6, § 6. DeFrain v. State Farm Mut. Auto. Ins. Co. , 491 Mich. 359, 369–370, 817 N.W.2d 504 (2012). This includes peremptory orders to the extent they can theoretically be understood, even if doing so requires one to seek out other opinions, id . ; see also People v. Crall , 444 Mich. 463, 464 n. 8, 510 N.W.2d 182 (1993) ; Evans & Luptak , PLC v. Lizza , 251 Mich. App. 187, 196, 650 N.W.2d 364 (2002) —notwithstanding, with all due respect, the enormous confusion peremptory orders sow and the frustration they generate. Defendant thus relies on the argument that

923 N.W.2d 611

LeFevers v. State Farm Mut. Auto. Ins. Co. , 493 Mich. 960, 828 N.W.2d 678 (2013), and Frazier v. Allstate Ins. Co. , 490 Mich. 381, 808 N.W.2d 450 (2011), are controlling because they partially "disavowed" Miller v. Auto-Owners Ins. Co. , 411 Mich. 633, 309 N.W.2d 544 (1981), on which Musall relied. This convoluted chain thus depends on what exactly "disavowal" means and whether the peremptory orders are comprehensible.

Although no published cases have defined the difference, "disavowal" must mean something distinct from "overruling." See, e.g., Renny v. Dep’t of Transp. , 478 Mich. 490, 505 n. 36, 734 N.W.2d 518 (2007). It appears clear from usage that disavowal is a pronouncement that a rule of law stated in a case no longer applies

325 Mich.App. 116

without otherwise touching the result of the prior judgment. See Ray v. Swager , 501 Mich. 52, 72 n. 49, 903 N.W.2d 366 (2017) ; Kidder v. Ptacin , 284 Mich. App. 166, 170-171, 771 N.W.2d 806 (2009). Disavowal is, therefore, a repudiation that...