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
WILLIAM SMITH and SHERI HARRIS,
No. 287505
Kent Circuit Court
LC No. 07-003903-CK
Defendants,
Advance Sheets Version
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 lead opinion and Judge MARKEY’s dissent, though coming to opposite
conclusions, are thoughtful and well-written. The only disagreement between the lead opinion
and the dissenting opinion 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 the
result of the lead 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
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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 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 rational
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 v Auto Club Ins Ass’n, 476 Mich 55, 8082; 718 NW2d 784 (2006) (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 Int’l 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
by Chief Justice TAYLOR 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 (opinion of
the Court), 80-82 (MARKMAN, J., concurring). Thus, Cameron cannot be read as overturning
McIntire’s rejection of the absurd result doctrine.
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