PROGRESSIVE MICHIGAN INS CO V WILLIAM SMITH

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STATE OF MICHIGAN COURT OF APPEALS PROGRESSIVE MICHIGAN INSURANCE COMPANY, FOR PUBLICATION March 16, 2010 Plaintiff-Appellee, v No. 287505 Kent Circuit Court LC No. 07-003903-CK WILLIAM SMITH and SHERI HARRIS, Defendants, and SCOTT MIHELSIC and ANDREA MIHELSIC, Defendants-Appellants, and PIONEER STATE MUTUAL INSURANCE COMPANY, Intervening Defendant. Before: MARKEY, P.J., AND BANDSTRA AND MURRAY, JJ. MURRAY, J. (concurring). Both the majority opinion and Judge Markey’s dissent, though coming to opposite conclusions, are thoughtful and well-written. The only disagreement between the majority and dissenting opinions is whether we enforce MCL 500.3009(2) as it was written, regardless of the fact that the result in this case is no doubt unfortunate. As briefly explained below, in my view our judicial duty is to enforce that indisputably unambiguous statute as written, and we cannot under Michigan law make exceptions to that rule. Thus, I join both the reasoning and result of the majority opinion. The essence of the dissent is that although our judicial duty is to almost always apply the statute’s unambiguous words to the facts presented, “on rare occasion[s]” like this case, “where following this philosophy with myopic rigidity effects not only a complete thwarting of the Legislature’s intent but also a profoundly unfair and inequitable result”, we should disregard that -1- judicial duty. With all due respect, for several reasons I do not believe we can apply this rationale, which is essentially the “absurd result” doctrine of statutory construction, to this case. First, the “absurd result” doctrine cannot be used to essentially modify an unambiguous statute, and no one has argued that MCL 500.3009(2) is anything but unambiguous. See People v McIntire, 461 Mich 147, 155-156 n 2; 599 NW2d 102 (1999) and Toaz v Dep’t of Treasury, 280 Mich App 457, 462; 760 NW2d 325 (2008), citing Cairns v East Lansing, 275 Mich App 102, 118; 738 NW2d 246 (2007).1 Second, even if the Supreme Court recognized that doctrine, there is no reason to invoke it in this case. It is certainly reasonable to conclude that a rationale legislator would have believed that, when an insurance contract did not contain the exact words the legislature actually mandated be used in those contracts, a court would rule the contract was invalid, just as the legislature mandated. See Cameron, 476 Mich at 80-82 (MARKMAN, J., concurring). Proof positive of this conclusion is the clear directive in the language, the lack of any “wiggle room” in the language, and the Legislature’s explicit remedy of invalidation if the statutory notice language is not used. Indeed, I would posit that any insurance company attorney reading this statute–just like the legislators who passed the statute–would expect a court to invalidate an insurance provision that did not contain the required language. Finally, it is difficult to discern when a court should ignore language to avoid “unfair and unjust” results. The dissent reasonably believes that “responsible” and “liable” are close enough to ignore the lack of compliance in this case, but what about the next case inevitably coming down the appellate pipeline? Are we left to pure judicial discretion as to which words must be enforced, with the answer coming down to the palatability of the result attained under the facts? I do not believe that is how the judicial branch should function when addressing unambiguous statutes. And, although enforcement of these “strict rules . . . can unfortunately . . . produce some [outrageous] outcomes[,]” Id. at 64, that is a product of the overall legislation chosen by the Legislature, and we must enforce the unambiguous commands of that legislation. /s/ Christopher M. Murray 1 Detroit International Bridge Co v Commodities Export Co, 279 Mich App 662, 674-675; 760 NW2d 565 (2008), decided just three weeks after Toaz, concluded that a majority of the Supreme Court (in separate opinions) in Cameron v Auto Club Ins Ass’n, 476 Mich 55; 718 NW2d 784 (2006) had rejected McIntire’s rejection of the absurd result doctrine. However, as the majority opinion in Cameron recognizes, Chief Justice Taylor and Justices Corrigan, Young and Markman all agreed that any discussion of the “absurd result” doctrine would be dicta because the doctrine was not implicated in that case. Cameron, 476 Mich at 66, 80-82 (MARKMAN, J., concurring). Thus, Cameron cannot be read as overturning McIntire’s rejection of the absurd result doctrine. -2-

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