There is an old saying that all politics
are local. While the national elections
held in November will likely affect tax
issues, regulatory issues and other areas of
great significance to Michigan businesses, it
is important to examine the local elections
to appreciate the effect of last November’s
events on business. The most significant
state election could be a race that received
relatively little fanfare or coverage.
“Potentially, the greatest impact from the
November elections is in the change to the
Michigan Supreme Court,” says John
Mitchell, executive partner at Secrest
Wardle. “So often, voters pay little attention
to the nonpartisan portion of their ballot,
where the judges are elected, without recognizing the significant impact these elections could have on day-to-day activities.”
Smart Business spoke with Mitchell
about how the Supreme Court elections
could impact business in Michigan and
what specific issues the court is expected
to take up.
What effect has the Supreme Court elections
had on Michigan business?
At this point, the effect is more what people forecast will occur as opposed to what
has actually occurred. What everyone
needs to recognize is the fact that the
court, as a result of the election of a new
justice replacing the former chief justice,
no longer has a solid, four-justice majority
voting block of those most often characterized as conservative republicans. The court
now has only a three-member voting block,
with the presumption being that the other
four justices will form a new voting coalition. This change means that decisions that
often, over the past few years, were decided by the four-person conservative majority, with such decisions being frequently
viewed as being favorable to the business
community, may now be revisited by a
court made up of a majority of justices who
may not follow such precedent.
What particular issues are expected to be of
significance?
At this point, no one can speak with certainty as to what will happen. We do not yet know what cases will be taken up by the
court. We do not yet know how the votes
will be counted. However, we still know, or
at least we like to think we know, what
may happen.
An issue that most lawyers presume will
be reviewed by the court is the standard
required to be able to bring a personal
injury claim arising out of a motor vehicle
accident. The prior Michigan Supreme
Court had set the standard in Kreiner v.
Fischer (2004). Most people believe that
the new court will take the opportunity to
review this issue and may well revise the
standard. As a result, the threshold required
to bring such an action may be changed and
functionally lowered, which could result in
appreciably greater numbers of claims, and
certainly more viable claims, for liability
arising out of motor vehicle accidents. This
would be a very specific and direct consequence of the recent election.
Are there any other issues that may come up
for review by the Supreme Court?
There are certainly those who believe,
and I would be one of them, that we may
see a revisitation of the current law as it
pertains to common law liability for owners of premises. This would certainly affect
all property managers, business owners,
retailers and others. This would be, specifically, with respect to the extent to which
those who own, possess or control property can avoid liability for alleged hazards
that are deemed to be open and obvious.
There is also a belief that there may be a
revisitation of what has historically been
known as the discovery rule. Recently,
the Supreme Court decided that there was
no provision, under common law as well as
the statutes, to allow a cause of action to
be brought once it is discovered or should
have been discovered by the person who is
bringing the claim. This conceivably, therefore, will be an area to be revisited.
Do you have any projections as to what will
happen with these issues?
I must concede that trying to predict the
future actions of the Court is, at best, an
uncertain science, but let me venture an
educated guess with the help of my crystal
ball. First, I think it is reasonable to believe
that these issues will be revisited and that
current defenses, available to businesses to
limit exposure to tort liability, will be reexamined by the Michigan Supreme Court.
Second, I think it is likely that the Court
will lessen the applicable standard to bring
an action for injuries from a motor vehicle
accident. I also think we may well see an
easing of restrictions on the ability of those
who bring claims involving claimed defects
on business premises.
In each instance, how the Court will
decide these questions will depend upon
how the issues are presented and the particular facts of the given case. My concern
is not so much that there will be changes,
but that people need to recognize that, as a
direct effect of the recent elections, what
has been presumed to be the common law
of the State of Michigan may well undergo,
within the coming year, specific and potentially significant revisions with a direct
impact on Michigan business.
JOHN MITCHELL is an executive partner at Secrest Wardle. Reach him at (248) 851-9500 or [email protected].
