PETERSEN v. TIG BCN TIG BCN (2009)

Supreme Court of Michigan.

Rick PETERSEN, Plaintiff-Appellee, v. MAGNA CORPORATION and Midwest Employers Casualty Company, Defendants-Appellants. Koleaseco and the Accident Fund Company; Magna Corporation and TIG Insurance Company; BCN Transportation Services and TIG Insurance Company; Koleaseco, Incorporated and Citizens Insurance Company; BCN Transportation Services; Serta Restokraft Mattress Company, Incorporated and Harleysville Lake States Insurance Company, Defendants-Appellees.

Docket Nos. 136542, 136543.

Decided: July 31, 2009

We granted leave to appeal in this case to determine the parties against whom attorney fees may be prorated under MCL 418.315(1). We conclude that the term “prorate” in MCL 418.315(1) applies only to employers and their insurance carriers. Accordingly, we affirm the judgment of the Court of Appeals.

I. Factual Background and Procedural History

This case involves a dispute over workers' compensation benefits. Plaintiff Rick Petersen began working for codefendant Koleasco, a trucking company, in February 1997. In March 1997, Koleasco hired codefendant BCN Transportation Services (BCN), a human resources “employee leasing” company, to administer its employee benefits.

In November 1997, plaintiff was injured when he fell from a flatbed truck while securing a load of Christmas trees. After the accident, he underwent surgery on his right foot and applied for workers' compensation benefits. The following year, he required treatment for back pain, which his treating physician believed was caused by the November 1977 fall.

Several questions were taken to a workers' compensation magistrate: (1) who was plaintiff's employer at the time of his injury, BCN or Koleaseco? (2) was Midwest the relevant insurer for workers' compensation purposes? (3) was plaintiff disabled? and (4) if so, which injury caused his disability? The magistrate bifurcated these issues into two trials.

In the first trial, the magistrate ruled that plaintiff was a Koleaseco employee on the date of his injury despite the fact that BCN paid his wages. Thus, because BCN had stipulated that it was plaintiff's employer, the magistrate ruled that both BCN and Koleaseco were plaintiff's employers and both were liable for plaintiff's workers' compensation benefits. On appeal, the Workers' Compensation Appellate Commission (WCAC) affirmed that ruling.

In the second trial, the magistrate considered (1) was plaintiff's counsel entitled to an attorney fee of 30 percent of plaintiff's medical bills unpaid by defendant? and (2) who was responsible for paying plaintiff's future medical and weekly benefits? With respect to plaintiff's attorney fees, the magistrate ruled:

[A]lthough Midwest ․ was paying the plaintiff weekly benefits, it refused to pay medical bills related to [plaintiff's] injury․ The total amount of the medical bills incurred ․ which defendant refused to pay is $153,448.54. I find that plaintiff's counsel is entitled to a 30 percent attorney fee for these unpaid medical bills under Section 315(1)․

With respect to whether BCN or Koleaseco was responsible for paying plaintiff's ongoing medical and weekly benefits, the magistrate ruled that BCN and its insurance carrier, Midwest, were primarily responsible.

Again, both parties appealed to the WCAC, which affirmed the award of attorney fees, observing:

While the magistrate failed to explicitly so find, in this case ․ defendant knew of the medical bills in question well in advance of trial, and simply refused to pay them claiming they were not work related. Once the magistrate so found, given that prior knowledge and refusal to pay, the action in awarding attorney fees was within his discretion and hence proper.

Magna Corporation, another “employee leasing” company insured by Midwest, and Midwest sought leave to appeal both WCAC orders. The Court of Appeals initially denied the applications.¹ We remanded the case as on leave granted.²

On remand, the Court of Appeals affirmed the WCAC.³ The Court found that competent evidence supported the factual findings of both the magistrate and WCAC with respect to plaintiff's employment. Regarding the assessment of attorney fees, the Court held that § 315(1) is ambiguous because it does not identify the entity against which the magistrate may assess such fees.⁴

The Court concluded, “[W]here the remainder of [§ 315(1) ] discusses the employer and/or the [insurance] carrier, it follows that the attorney fees are to be calculated or divided between those entities. The plain language of the statute does not mandate that the health care provider assume responsibility for any portion of those fees.”⁵ We granted leave to appeal to consider the proper interpretation of § 315(1).⁶

II. MCL 418.315(1)

The proper interpretation and application of a statute presents a question of law that we review de novo.⁷ MCL 418.315(1), part of the Worker's Disability Compensation Act (WDCA),⁸ provides in pertinent part:

The employer shall furnish, or cause to be furnished, to an employee who receives a personal injury arising out of and in the course of employment, reasonable medical, surgical, and hospital services and medicines, or other attendance or treatment recognized by the laws of this state as legal, when they are needed․ After 10 days from the inception of medical care as provided in this section, the employee may treat with a physician of his or her own choice by giving to the employer the name of the physician and his or her intention to treat with the physician. The employer or the employer's carrier may file a petition objecting to the named physician selected by the employee and setting forth reasons for the objection. If the employer or carrier can show cause why the employee should not continue treatment with the named physician of the employee's choice, ․ the ․ magistrate may order that the employee discontinue treatment with the named physician or pay for the treatment received from the physician․ If the employer fails, neglects, or refuses so to do, the employee shall be reimbursed for the reasonable expense paid by the employee, or payment may be made in behalf of the employee to persons to whom the unpaid expenses may be owing, by order of the workers' compensation magistrate. The workers' compensation magistrate may prorate attorney fees at the contingent fee rate paid by the employee. [Emphasis added.]

A. Statutory Interpretation

This is a case of statutory interpretation. The primary goal of such interpretation is to give effect to the intent of the Legislature.⁹ The first step in ascertaining such intent is to focus on the language of the statute itself. If statutory language is unambiguous, the Legislature is presumed to have intended the meaning expressed in the statute.¹⁰ The words of a statute provide the most reliable evidence of the Legislature's intent, and as far as possible, effect should be given to every phrase, clause, and word in a statute.¹¹ If the statutory language is certain and unambiguous, judicial construction is neither required nor permitted, and courts must apply the statute as written.¹²

However, when statutory language is ambiguous, this Court has consistently held that a court construing it may go beyond the plain language of the statute.¹³ In fact, where the language leaves the statute's meaning ambiguous, it is the duty of the courts to construe it, giving it an interpretation that is reasonable and sensible.¹⁴ Therefore, a finding of ambiguity has important interpretive ramifications.

In this case, the Court of Appeals held that the last sentence of § 315(1) is ambiguous in that it is unclear who is responsible for an injured employee's attorney fees. Thus, the threshold question is whether, in light of the plain language of the entire provision, the last sentence of § 315(1) is ambiguous.

Section 315(1) gives magistrates the discretionary authority to prorate attorney fees at the contingent fee rate paid by the employee. “Prorate” means “to divide, distribute, or calculate proportionately.”¹⁵ In § 315(1), the term “prorate” could reasonably apply to employers, their insurance carriers, health care providers, employees seeking workers' compensation benefits, or to any combination of them. Moreover, neither § 315 as a whole nor any other provisions of the WDCA indicates the parties to whom a division or distribution of attorney fees applies.

I agree with the Court of Appeals conclusion that the final sentence of § 315(1) applies only to employers and their insurance carriers. This is because that interpretation harmonizes the final sentence with the remainder of § 315(1). The final sentence does not stand alone.¹⁶ It must be construed in the context of § 315(1) in its entirety and harmonized with the statute's other provisions to satisfy the purpose intended by the Legislature.¹⁷

Here is how that construction operates. Section 315(1) concerns employer liability to pay medical benefits to workers injured in the course of employment. The statute as a whole provides a process for employers and their insurance carriers to object to the medical treatment that an injured employee seeks. Hence, “prorate” in the final sentence of § 315(1), when read with the remainder of the statute, applies to the parties who might contest the payment of medical benefits: employers and their insurance carriers.¹⁸ This interpretation unifies the last sentence of § 315(1) with the remainder of the statute.

I now consider the Legislature's use of the word “may” with respect to prorating attorney fees. The word “may” is permissive in nature. As applied to “prorate,” “may” indicates that magistrates have discretion in determining whether to award attorney fees. Hence, magistrates are allowed to award attorney fees, but they are not required to do so.¹⁹

Likewise, the word “may” bears on whether a proration must occur if a magistrate does award attorney fees. I would hold that the use of the word “may” grants magistrates the discretion to prorate attorney fees among employers and their insurance carriers. Should a magistrate determine that only one of those parties is liable, the magistrate may impose attorney fees against only that party. Conversely, should the magistrate find multiple parties liable, fees may be prorated accordingly. This interpretation affords the phrase “may prorate” its full meaning.²⁰

Nonetheless, as evidenced by the dissents in this case, competing reasonable interpretations of § 315(1) exist when its language alone is considered.²¹ In fact, the words of § 315(1), in light of the entire statute and the WDCA, do not clearly indicate the parties to whom a proration of attorney fees applies. As a consequence, I am unable to ascertain the intent of the Legislature based solely on the language of the statute. I turn next to the question whether § 315(1) is ambiguous.

1. Lansing Mayor v. Pub Service Comm

This Court's most recent pronouncement on the proper standard for discerning whether statutory language is ambiguous was espoused in Lansing Mayor v. Pub Service Comm.²² In that case, the Court examined MCL 247.183 to determine whether it required a company to obtain local government consent before beginning pipeline construction. Critical to the Court's analysis was its discussion of the proper method for discerning statutory ambiguity.

The Court stated that statutory provisions are not ambiguous unless one “irreconcilably conflicts” with another or unless a term is “equally susceptible to more than a single meaning.”²³ Applying this definition, the Lansing Mayor majority observed that “[o]nly a few provisions are truly ambiguous.”²⁴

Lansing Mayor's definition of “ambiguity” is unsupported by any Michigan law whatsoever, having been derived, as it were, from thin air.²⁵ Rusinek v. Schultz, Snyder & Steele Lumber Co is the only Michigan case predating Lansing Mayor that employs the language “equally susceptible.”²⁶ However, Rusinek did not state that language is ambiguous only if it is equally susceptible to different interpretations. Instead, Rusinek simply held that statutes in derogation of common law must be strictly construed.²⁷

Also unsupported as a threshold for finding ambiguity is the “irreconcilably conflicts with another provision” language found in Lansing Mayor. The Lansing Mayor majority cited Klapp v. United Ins Group Agency, Inc²⁸ for this definition of “ambiguity,” but Klapp simply states that language is ambiguous when “its provisions are capable of conflicting interpretations.”²⁹ It neither requires an irreconcilable conflict nor that the language be equally susceptible to more than one interpretation. Thus, the two-pronged “equally susceptible” and “irreconcilably conflicts” test adopted in Lansing Mayor has no basis in Michigan law.

Furthermore, the Lansing Mayor majority made two explicit and glaring misstatements of law. First, it cited Klapp for the proposition that a finding of “ambiguity is a finding of last resort.”³⁰ Klapp did not say this. Instead, Klapp held that the rule of contra proferentum³¹ is a rule of last resort. Indeed, Klapp concluded that the language at issue in that case was ambiguous, without commenting on whether such a conclusion was a “good” or a “bad” thing.³² Wholly absent from Klapp, or other Michigan law, is any indication that consideration of whether language is ambiguous should be given only as a last resort.

Second, I note that the Lansing Mayor majority expressly rejected the “reasonable minds” standard for discerning ambiguity as applied by the dissent in that case. The majority stated, “[t]hat is not, and has never been, the standard either for resolving cases or for ascertaining the existence of an ambiguity in the law.”³³ However, the Court cited no authority for this proposition. In fact, this holding was a blatant misstatement of the law.³⁴

Because it was based on a mythical definition of “ambiguity” and egregious misstatements of law, I reject Lansing Mayor's standard for discerning statutory ambiguity.³⁵

i. Stare Decisis 36

Because I conclude that Lansing Mayor's definition of “ambiguous” is unsupported by Michigan law, I must now determine whether it ought to remain the controlling method for discerning ambiguity in the laws of this state. I treat the definition as governed by stare decisis for purposes of analysis.

Stare decisis is short for stare decisis et non quieta movere, which means “stand by the thing decided and do not disturb the calm.” Stare decisis attempts to balance two competing considerations: the need of the community for stability in legal rules and decisions and the need of courts to correct past errors.³⁷ This doctrine has been part of the American legal landscape since the country's formation.³⁸

Alexander Hamilton wrote that, to “avoid an arbitrary discretion in the courts, it is indispensable that [courts] should be bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them․”³⁹ In the early twentieth century, Justice (then-Judge) Cardozo wrote that the “labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one's own course of bricks on the secure foundation of the courses laid by others who had gone before him.”⁴⁰

Although any rule is only as solid as its boundaries are clear, it was not until recently that this Court formally established a test to determine when it should depart from stare decisis. In 2000, in Robinson v. Detroit,⁴¹ the Court held that the first question in deciding whether to overrule precedent is whether an earlier decision was wrongly decided.⁴² Next, according to Robinson, courts should review (1) whether the decision defies practical workability, (2) whether reliance interests would work an undue hardship if the decision were overturned, and (3) whether changes in the law or facts no longer justify the decision.⁴³ Thus, Robinson enunciated a test premised on whether the questioned decision was wrongly decided, to be followed by a three-pronged analysis of whether stare decisis nonetheless counsels upholding it.

Although the Robinson test was implemented as a mechanism for determining when a prior decision of the Court should be upheld, its application has proven superficial and cursory.⁴⁴ In fact, an examination of cases applying the Robinson test demonstrates that not once has the Court cited it as a basis for upholding a prior decision.⁴⁵ Robinson's statement that a wrongly decided case should “invariably” be overruled was a chilling signal that a conclusion that precedent has been wrongly decided is sufficient justification for overruling it.⁴⁶

These facts alone suffice to show that Robinson is insufficiently respectful of precedent. Therefore, I would modify it by shifting the balance back in favor of precedent and expanding on Robinson's list of factors to consider in applying stare decisis.

I would hold that a stare decisis analysis should always begin with the presumption that upholding the precedent involved is the preferred course of action. The presumption should be retained until effectively rebutted by the conclusion that a compelling justification exists to overturn the precedent.

Robinson, by contrast, contained no such presumption. Moreover, the Court's applications of Robinson suggest that such a presumption was never considered. Even if it had been initially applied, once a case was deemed to have been wrongly decided, any presumption in favor of upholding precedent disappeared .⁴⁷ I would reject this approach and reiterate that a rebuttable presumption exists in favor of upholding precedent.⁴⁸

The question arises what deference should be paid to cases in which Robinson was used to overturn existing precedent. I believe that a lower level of deference should be accorded to these cases because they represent a departure from the traditional notions of stare decisis. In Adarand Constructors, Inc v. Pena,⁴⁹ the United States Supreme Court expressly addressed the distinction between consideration of well established law and cases representing a recent departure from precedent:

It is worth pointing out the difference between the applications of stare decisis in this case and in Planned Parenthood of Southeastern Pa v. Casey. Casey explained how considerations of stare decisis inform the decision whether to overrule a long-established precedent that has become integrated into the fabric of the law. Overruling precedent of that kind naturally may have consequences for “the ideal of the rule of law.” In addition, such precedent is likely to have engendered substantial reliance, as was true in Casey itself. (“[F]or two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.”). But in this case, as we have explained, we do not face a precedent of that kind, because Metro Broadcasting itself departed from our prior cases-and did so quite recently. By refusing to follow Metro Broadcasting, then, we do not depart from the fabric of the law; we restore it. We also note that reliance on a case that has recently departed from precedent is likely to be minimal, particularly where, as here, the rule set forth in that case is unlikely to affect primary conduct in any event.[[50]

Furthermore, the Court stated:

Our past practice in similar situations supports our action today. In United States v. Dixon, we overruled the recent case of Grady v. Corbin, because Grady “lack[ed] constitutional roots” and was “wholly inconsistent with earlier Supreme Court precedent.” In Solorio v. United States, we overruled O'Callahan v. Parker, which had caused “confusion” and had rejected “an unbroken line of decisions from 1866 to 1960.” And in Continental TV, Inc v. GTE Sylvania Inc, we overruled United States v. Arnold, Schwinn & Co, which was “an abrupt and largely unexplained departure” from precedent, and of which “[t]he great weight of scholarly opinion ha[d] been critical.” See also, e.g., Payne v. Tennessee (overruling Booth v. Maryland, and South Carolina v. Gathers; Monell v. New York City Dept of Social Servs (partially overruling Monroe v. Pape, because Monroe was a “departure from prior practice” that had not engendered substantial reliance); Swift & Co v. Wickham (overruling Kesler v. Department of Public Safety of Utah, to reaffirm “pre-Kesler precedent” and restore the law to the “view ․ which this Court has traditionally taken” in older cases).[[51]

Thus, there is substantial support for applying a decreased presumption in favor of precedent when that precedent itself represents a recent departure from prior established caselaw.⁵²

The next inquiry should be whether there exists a compelling justification for overruling precedent.⁵³ A compelling justification is not a mere belief that a precedential case was wrongly decided or that the Court, as currently composed, would have decided the case differently. Rather, in determining whether a compelling justification exists, the Court should consider several evaluative criteria, none of which, standing alone, is dispositive.

These criteria include, but are not limited to: (1) whether the rule has proven to be intolerable because it defies practical workability, (2) whether reliance on the rule is such that overruling it would cause a special hardship and inequity, (3) whether related principles of law have so far developed since the rule was pronounced that no more than a remnant of the rule has survived, (4) whether facts and circumstances have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification, (5) whether other jurisdictions have decided similar issues in a different manner, (6) whether upholding the rule is likely to result in serious detriment prejudicial to public interests, and (7) whether the prior decision was an abrupt and largely unexplained departure from precedent.

Not all of these factors will be applicable in every case. Nor is there a magic number of factors that must favor overruling a case in order to establish the requisite compelling justification. Rather, I believe that the conclusion about whether these factors support finding a compelling justification should be reached on a case-by-case basis.

ii. Application of stare decisis to Lansing Mayor

As stated above, I begin my stare decisis analysis with a presumption in favor of upholding precedent. Only if a compelling justification exists should the Court overrule the prior decision. Although Lansing Mayor was wrongly decided with respect to the definition of ambiguity, this fact does not constitute the requisite compelling justification to overrule it. Instead, we must examine additional factors to determine whether there exists a compelling justification to overrule it.

First, I consider whether the method for discerning ambiguity in Lansing Mayor has proven intolerable because it defies practical workability. I believe that it does. Intrinsically, an analytical approach to interpreting statutes on the basis of their “plain meaning,” where reasonable minds disagree on what that meaning is, is unworkable. This standard gives judges unfettered discretion to pick and choose among available “plain meanings” or dictionary definitions, and thus sheds little light on what the Legislature intended statutory language to mean.⁵⁴ It also potentially leads to arbitrary outcomes and injects instability into the law.

Moreover, the mere fact that different justices of this Court, judges of the Court of Appeals, and trial judges disagree on the meaning of statutory language suggests that ambiguity exists. Allowing a judge to pick one meaning among several equally plausible meanings without using the rules of statutory construction is quite simply an exercise in speculation. As Justice Stevens of the United States Supreme Court stated:

[T]he “minimalist” judge who holds that the purpose of [a] statute may be learned only from its language retains greater discretion than the judge who will seek guidance from every reliable source. A method of statutory interpretation that is deliberately uninformed, and hence unconstrained, increases the risk that the judge's own policy preferences will affect the decisional process.[55]

I share Justice Stevens's concerns and believe that Lansing Mayor's definition of “ambiguity” is inherently unworkable.

I also note that application of Lansing Mayor's definition of “ambiguity” has never once led the Court to find statutory language ambiguous.⁵⁶ If a rule of statutory interpretation inevitably leads to the same result in each case in which it is applied, such a rule is innately unworkable. Accordingly, this factor weighs strongly in favor of abrogating the Lansing Mayor definition.

Second, I examine whether reliance on the rule is such that overruling it would cause a special hardship and inequity. I believe that litigants have reasonably relied on Lansing Mayor's definition of “ambiguity.”⁵⁷ Its application potentially leads to a different statutory interpretation than one based on alternative definitions. Hence, I conclude that rejecting the definition may prejudice current litigants who have relied on it.

However, I also recognize that litigants have continued to rely on previous standards for discerning ambiguity. This reliance is also reasonable given the inconsistent application of Lansing Mayor's definition,⁵⁸ as well as the disagreement over the proper definition of “ambiguity” among the justices of this Court.⁵⁹ Such reliance is not surprising given that Lansing Mayor's definition is so vastly different from the definitions of ambiguity that preceded it for more than 150 years.⁶⁰ In fact, despite its explicit holding, Lansing Mayor did not overrule or cite any previous cases that addressed the proper method for discerning ambiguity.

Nevertheless, because Lansing Mayor stands as the most recent declaration of how to discern statutory ambiguity, litigants reasonably relied on it for this point. I therefore conclude that this factor weighs moderately in favor of upholding the definition.

Third, I consider whether related principles of law have so far developed since the Lansing Mayor definition of “ambiguity” was pronounced that only a remnant of the definition has survived. This factor is inapplicable to the stare decisis analysis in this case. The definition of “ambiguity” is a tool of judicial construction. Its only relevance is to discern ambiguity or the lack of it in a given statute. Thus, the definition of “ambiguity” stands alone and is not inherently related to other principles of law. Accordingly, this factor neither weighs in favor of nor against replacing the Lansing Mayor definition.

Fourth, I examine whether facts and circumstances have so changed, or have come to be seen so differently, as to rob the old definition of significant justification. This factor focuses on real-world practicalities.⁶¹ However, the definition of “ambiguity” is not beholden to the underlying facts and circumstances of a given case. Accordingly, because the definition of “ambiguity” does not implicate practical concerns, I do not believe that this factor weighs in favor of or against replacing the Lansing Mayor definition.

Fifth, I consider whether other jurisdictions have decided similar issues in a different manner. My review indicates that Lansing Mayor's definition of “ambiguity” is unsupported by any other jurisdiction. In fact, not a single jurisdiction, state or federal, requires an irreconcilable conflict between provisions or that language be equally susceptible to more than one meaning before finding statutory ambiguity.⁶² Accordingly, this factor weighs strongly in favor of rejecting the Lansing Mayor definition.

I note that the sixth factor, whether upholding the Lansing Mayor definition is likely to result in serious detriment prejudicial to public interests, has no bearing on this case. As previously stated, the definition of “ambiguity” is merely a tool of statutory interpretation. As such, its application has no relevance to public interests because the definition of “ambiguity,” standing alone, does not dictate any course of action in a particular case.

Finally, I consider whether the prior decision was an abrupt and largely unexplained departure from precedent. As noted earlier, Lansing Mayor's definition of ambiguity is nothing more than a legal fiction, wholly unsupported by any law. Furthermore, it represented a decisive and abrupt shift from precedent without recognition of the prior standards for discerning statutory ambiguity. Accordingly, this factor weighs heavily in favor of abrogating Lansing Mayor's definition of ambiguity.

Under my analysis of the aforementioned factors, Lansing Mayor's definition of “ambiguity” has proven unworkable, is unsupported by other jurisdictions, and represents an abrupt and unexplained departure from precedent. Although it has been relied on in Michigan, reliance has been uneven and short-lived. Accordingly, I conclude that a compelling justification exists for replacing it.⁶³

2. The Proper Method of Discerning Ambiguity

Having rejected the Lansing Mayor definition of “ambiguity,” I now iterate the proper method of discerning statutory ambiguity. Before Lansing Mayor was decided, Michigan courts used several analogous variations of statutory interpretation. For example, in In re MCI Telecom Complaint,⁶⁴ we held that “[s]hould a statute be ambiguous on its face ․ so that reasonable minds could differ with respect to its meaning, judicial construction is appropriate to determine the meaning.”⁶⁵ This Court has applied the “reasonable minds” standard on numerous other occasions.⁶⁶

This Court has also employed a “doubtful” standard in deciding whether ambiguity exists. In Smith v. Grand Rapids City Comm,⁶⁷ we held that “[w]here ․ the language of a statute is of doubtful meaning, the court should give it a reasonable construction looking to the purpose to be subserved thereby, and the object sought to be accomplished and its occasion and necessity.”⁶⁸

Finally, this Court has used a “susceptible” standard. Applying this method of interpretation, we held that “[i]t is only where a statute is unclear and susceptible to more than one interpretation that judicial construction is allowed.”⁶⁹ These corresponding approaches to evaluating statutes for ambiguity have endured in Michigan caselaw throughout the nineteenth and twentieth centuries.⁷⁰

These historical standards for discerning ambiguity are easily reconcilable and analogous. The crux of the “reasonable minds” standard is that, when two persons reasonably afford different meanings to statutory language, it is ambiguous. As for the “doubtful” standard, it suggests that a statute is ambiguous when its language is of questionable or unclear meaning. The “susceptible” standard is self-explanatory in that, if a statute is susceptible to more than one interpretation, it is ambiguous.

I adopt a definition of “ambiguity” that encompasses all three of the aforementioned well-established standards for determining ambiguity.⁷¹ Specifically, I would hold:

[W]hen there can be reasonable disagreement over a statute's meaning, or, as others have put it, when a statute is capable of being understood by reasonably well-informed persons in two or more different senses, [a] statute is ambiguous. For example, this Court has concluded that statutes [are] ambiguous when one word in the statute has an unclear meaning, when a statute's interaction with another statute has rendered its meaning unclear, or when application of the statute to facts has rendered the correct application of the statute uncertain.[72]

This standard gleans the fundamental principles from the “reasonable minds,” “doubtful,” and “susceptible” tests. It has been applied, in some variation, by every other state in the country,⁷³ all the federal circuit courts,⁷⁴ and by the United States Supreme Court.⁷⁵

B. Application to § 315(1)

I believe that § 315(1) is ambiguous because the statute is capable of being understood by reasonably well-informed persons in two or more different senses. As mentioned before, the term “prorate” could reasonably be understood to apply to employers, their insurance providers, health care providers, and to employees seeking workers' compensation benefits. Indeed, § 315 and the entire WDCA are entirely silent as to who, among these parties, is subject to a proration of attorney fees. Absent extra-textual sources, any determination of the Legislature's intent becomes a mere exercise in speculation. Thus, having found that § 315(1) is ambiguous, I may now look to extra-textual sources to aid in its interpretation.⁷⁶

1. Harmonization with the WDCA

I seek an interpretation of § 315(1) that is in accord with the principles underlying the WDCA as a whole. The act is remedial in nature.⁷⁷ Thus, where ambiguity exists and judicial construction of the act is necessary, we construe the act's terms liberally to grant rather than deny benefits to injured workers.⁷⁸ This canon of statutory construction is deeply embedded in both American and Michigan jurisprudence.⁷⁹

The WCAC has explicitly recognized the importance of holding employers and their insurance carriers responsible for a proration of attorney fees pursuant to § 315(1). In Harvlie v. Jack Post Corp, the WCAC stated, “the purpose of [the] attorney fee provisions ․ is not merely to assure that a claimant's attorney is paid, but also to deter employers from breaching their statutory duty to provide medical treatment to injured workers ․ “⁸⁰

I find this reasoning persuasive and applicable to this case. If employers and their insurance carriers are not held accountable for a prorated share of attorney fees, they will have an incentive to deny medical benefits.⁸¹ They will be tempted to deny an injured employee's request for coverage in the hope that, in subsequent litigation, they will not be found liable. And even if they were found liable, they would be responsible only for actual medical expenses but not for attorney fees, despite their wrongful denial of valid claims.

Likewise, if injured workers were forced to pay a prorated portion of their own attorney fees, their ultimate recovery could be reduced below their actual costs of securing medical treatment. Such a result would violate the remedial goal of the WDCA.

2. Caselaw Has Employed Similar Reasoning

Caselaw also supports my interpretation of § 315(1). I find persuasive the fact that every previous case that has analyzed § 315(1) with respect to the proration of attorney fees has employed reasoning similar to mine.

The Court of Appeals first considered the proration of attorney fees pursuant to § 315(1) in Boyce v. Grand Rapids Asphalt Paving Co.⁸² There, the plaintiff argued that his health care provider should be held responsible for a portion of his attorney fees. The Court rejected this argument, noting that a party does not become liable for attorney fees merely by accepting the benefits of an attorney's services.⁸³ The Court also ruled that § 315(1) could be construed to require either the employer or its insurance carrier to pay a plaintiff's attorney fees.

Finally, the Court noted that Administrative Rule 14 of the Bureau of Workers' Compensation, which was in effect when the plaintiff was injured, precluded attorneys from recovering a percentage fee for accrued medical services.⁸⁴ The Court questioned the soundness of Rule 14, noting that requiring employers or insurance carriers to pay attorney fees when they refuse to pay mandatory medical benefits would serve justice.⁸⁵

In Watkins v. Chrysler Corp,⁸⁶ the Court of Appeals reaffirmed the principle expounded in Boyce that the term “prorate” in the final sentence of § 315(1) applies to employers and their insurance carriers. Watkins involved an injured plaintiff who sought and was awarded workers' compensation benefits. He subsequently requested a hearing regarding his right to attorney fees related to medical expenses ultimately paid by Blue Cross Blue Shield of Michigan. The magistrate ruled that he was not entitled to such fees. The Workers' Compensation Appeal Board (WCAB) reversed the magistrate's decision and awarded attorney fees to be paid by the plaintiff's employer.

On appeal, the Court of Appeals reversed, holding that the imposition of attorney fees under § 315(1) would be unconscionable. It noted that the plaintiff's medical expenses had been timely paid and that there had been no neglect, breach of duty, or failure to provide medical care.⁸⁷ Nonetheless, the Court reiterated that the WCAB had improperly ignored the policy aspect of Boyce that an employer and its insurer should bear attorney fees when medical expenses are not timely paid.⁸⁸

In contrast to Watkins, defendant in this case did not timely pay plaintiff's medical expenses such that there was no neglect, breach of duty, or failure to provide medical care. Midwest failed to pay medical expenses despite the fact that it was paying other workers' compensation benefits to plaintiff. As the WCAC noted, Midwest knew of plaintiff's medical bills well in advance of trial, yet simply refused to pay them. Thus, the employer “fail[ed], neglect [ed], or refus[ed]” to furnish reasonable medical expenses for plaintiff's injuries under § 315(1).⁸⁹

Finally, in Harvlie v. Jack Post Corp,⁹⁰ the Court of Appeals found a unity of purpose for § 315(1) by holding that its last sentence authorizes a magistrate to prorate attorney fees among an employer and its insurance carrier. The Court held:

Here, the WCAC majority's construction of § 315(1) is consistent with a harmonious reading of the last two sentences of § 315(1). The third sentence of § 315(1) provides that “the ․ magistrate may prorate attorney fees at the contingent fee rate paid by the employee.” Standing alone, this sentence contains ambiguity because it fails to identify whom the magistrate may order to pay the attorney fees. This sentence is not to be construed in isolation, however, but instead must be read in the context of the whole statute and harmonized with the statute's other provisions in a manner that effectuates the purpose intended by the Legislature. The second sentence of § 315(1) addresses the consequences of an employer's failure to pay medical expenses and authorizes a magistrate to order the employer to reimburse either the injured claimant or the claimant's medical insurance provider for the reasonable medical expenses incurred. This second sentence addresses the consequences to a nonpaying employer that “fails, neglects, or refuses” to provide reasonable medical services. The WCAC properly construed the final two sentences of § 315(1) and provided a unity of purpose for this statute.[91]

The Court noted that its holding was consistent with prior interpretations of 315(1).⁹²

In sum, I agree with the magistrate, the WCAC, the Court of Appeals, and established caselaw that employers and their insurance carriers are the only parties subject to a proration of attorney fees under § 315(1). This interpretation harmonizes the last sentence of § 315(1) with the preceding sentences of the provision as well as with the remedial goals of the WDCA. Workers' compensation magistrates may thus prorate an employee's attorney fee incurred in procuring payment for medical expenses against an employer, or against its insurance carrier, or against both.

Here, the magistrate's proration of attorney fees against defendants was appropriate, given defendants' failure to pay plaintiff's medical services as mandated by § 315(1). Accordingly, I conclude that the magistrate properly prorated plaintiff's attorney fees under § 315(1) against Midwest and Magna.

III. The Inapplicability of the American Rule

Finally, I note that Michigan courts follow the so-called “American rule” with respect to the payment of attorney fees.⁹³ We have held that, “[u]nder the American rule, attorney fees are not recoverable from the losing party as costs in the absence of an exception set forth in a statute or court rule expressly authorizing such an award.”⁹⁴ This rule is codified at MCL 600.2405(6), which provides that among items that may be taxed as costs are “[a]ny attorney fees authorized by statute or court rule.”⁹⁵

Here, § 315(1) explicitly grants magistrates the discretionary authority to prorate attorney fees related to an employer's failure to provide services in accordance with the statute. Thus, the statute contemplates that a party other than a plaintiff could, in the discretion of the magistrate, be ordered to pay attorney fees in connection with a plaintiff's suit. Accordingly, § 315(1) constitutes an express statutory authorization of attorney fees, which trumps the otherwise applicable American rule.

IV. Conclusion

I recommend that the Court modify and expand the principles set forth in Robinson v. Detroit governing when the Court should depart from the principle of stare decisis. A stare decisis analysis should always begin with a presumption that upholding precedent is the preferred course of action. Next, the Court should determine whether a compelling justification exists to overturn the precedent. A compelling justification is not a mere belief that the precedential case was wrongly decided or that the Court as currently composed would have decided the case differently. The factors listed in this opinion should be used on a case-by-case basis to determine whether a compelling justification exists to overrule an existing precedent.

However, consistent with United States Supreme Court precedent, I would accord a lower level of deference to cases that represent a recent departure from the traditional notions of stare decisis.

I also reject as unworkable the definition of statutory ambiguity espoused in Lansing Mayor. I conclude that MCL 418.315(1) is ambiguous because it is capable of being understood by reasonably well-informed persons in two or more different senses. As a consequence, the statute fails to clearly indicate the parties among whom attorney fees may be prorated.

Finally, we would hold that the Legislature intended that the term “prorate” in the last sentence apply only to employers and their insurance carriers. This construction is consistent with well-established principles of statutory interpretation, caselaw, the remedial nature of the WDCA, and the purpose of § 315(1). I would also hold that the American Rule of attorney fees does not apply to § 315(1).

Plaintiff's motion to dismiss defendant's application for leave to appeal is considered, and it is denied. We affirm the judgment of the Court of Appeals.

I concur in the lead opinion only to the extent that it concludes that the term “prorate” in MCL 418.315(1) applies exclusively to employers and their insurance carriers. I write separately because I do not find MCL 418.315(1) to be ambiguous. Section 315(1), when read as a whole, indicates that the term “prorate” in MCL 418.315(1) applies only to employers and their insurance carriers.

This is a case of statutory interpretation. The proper interpretation and application of a statute presents a question of law, which receives de novo review.¹ Assuming that the Legislature has acted within its constitutional authority, the purpose of judicial statutory construction is to discern and give effect to the intent of the Legislature.² In determining the intent of the Legislature, this Court must first look to the language of the statute.³ The Court must, first and foremost, interpret the language of a statute in a manner that is consistent with the intent of the Legislature.⁴ As far as possible, effect should be given to every phrase, clause, and word in the statute.⁵ The statutory language must be read and understood in its grammatical context, unless it is clear that something different was intended.⁶ Moreover, when considering the correct interpretation, the statute must be read as a whole.⁷ Individual words and phrases, while important, should be read in the context of the entire legislative scheme.⁸ While defining particular words in statutes, we must consider both the plain meaning of the critical word or phrase, as well as its placement and purpose in the statutory scheme.⁹ A statute must be read in conjunction with other relevant statutes to ensure that the legislative intent is correctly ascertained.¹⁰ The statute must be interpreted in a manner which ensures that it works in harmony with the entire statutory scheme.¹¹

To determine the intent of MCL 418.315(1), the plain language of the statute must first be examined. Section 315(1) provides in pertinent part:

Section 315(1) gives magistrates the discretionary authority to prorate attorney fees at the contingent fee rate paid by the employee. The question in this case is against whom attorney fees can be prorated.

Although I disagree with the lead opinion that the final sentence of § 315(1) is ambiguous, I agree with its conclusion that the final sentence of § 315(1) applies only to employers and their insurance carriers. This interpretation of the statute harmonizes the individual sentences and phrases in § 315(1) with each other. The final sentence of § 315(1) cannot be construed to stand alone without reading it in the context of the entire statute.¹² It must be examined and analyzed as part of the particular statutory provision and then harmonized with the statute's other provisions to satisfy the purpose intended by the Legislature.¹³

Section 315(1) pertains to employer liability to pay medical benefits to workers injured in the course of employment. Section 315(1) mandates that employers furnish an employee with medical treatment needed for an injury arising out of and in the course of employment. The statute also enumerates certain types of treatment for which reimbursement costs can be contested by employers and their insurance carriers. However, if an employer fails, neglects, or refuses to provide covered medical expenses, the employer must reimburse the employee for the expenses, or make a payment to a medical provider for unpaid expenses that may be owing. The last sentence of § 315(1) gives a magistrate the discretion to prorate attorney fees at the contingent fee rate paid by the employee to recoup costs expended to recover medical expenses. Thus, the term “prorate” in the final sentence of the § 315(1), when read with the rest of the statute, applies to parties who might contest the payment of medical benefits: employers and their insurance carriers. This interpretation provides a unity of purpose for § 315(1).

In closing, I concur only with of the lead opinion's conclusion that the term “prorate” in MCL 418.315(1) applies exclusively to employers and their insurance carriers. I write separately because I do not find that § 315(1) is ambiguous. Section 315(1), when read as a whole, indicates that the term “prorate” in § 315(1) applies only to employers and their insurance carriers. This interpretation harmonizes the final sentence of the statute with the entire statute as a whole.

I fully join Justice Markman's dissenting opinion. I also join part II(B) of Justice Young's dissenting opinion.

I fully join in parts IV(A), IV(C) through (F), and V of Justice Markman's dissenting opinion. I further dissent from the majority's conclusion that “the term ‘prorate’ in MCL 418.315(1) applies only to employers and their insurance carriers,”¹ and with Chief Justice Kelly's conclusion that a workers' compensation claimant may never be deemed responsible for a portion of the attorney fees incurred because doing so would “violate the remedial goal of the WDCA.”²

Normally, a workers' compensation claimant is responsible for bearing the costs of his portion of the litigation, including attorney fees.³ I believe that MCL 418.315(1) serves as an exception to this general rule, permitting the magistrate to prorate attorney fees between the claimant and the employer when the employer refuses to pay “reasonable” and “needed” medical expenses for an injury “arising out of and in the course of employment.” When an employer unjustifiably refuses to fulfill its statutory duty to pay for medical expenses incurred as a result of a work-related injury, it is entirely appropriate for the magistrate to consider whether to exercise the discretionary powers the Legislature has provided to prorate the fees between the parties according to the respective merits of their positions. In sum, the discretionary authority to prorate is a fee shifting power that reduces the claimant's usual obligation to bear the entire burden of his own attorney fees.

In contrast, the majority allows only proration between the employer and its insurer, while the claimant is relieved of paying any portion of his attorney fees. As such, the majority position must be predicated on the assumption that every claim for benefits is meritorious and that any contest of such a claim venal. The reality is that some claims have merit and some should be contested; others may involve unresolved factual and legal questions under the Worker's Disability Compensation Act that can be definitively resolved only by the magistrate and the Workers' Compensation Appellate Commission (WCAC). In consideration of this reality, I believe that the proration provision was a legislative recognition that neither the employer nor the claimant may have entirely meritorious positions in a particular case. Thus, the magistrate has been authorized to “split the baby” and divide the claimant's fees when the respective merits of the party's positions warrant this. The majority does not prorate so much as shift the entire attorney fee burden from the claimant to the employer in every case.

I. STATUTORY CONSTRUCTION

The statute at issue, MCL 418.315(1), provides in relevant part:

It is clear that an employer has an affirmative statutory obligation to furnish “reasonable” medical treatment for personal injuries “arising out of and in the course of employment” when such treatment is “needed.” However, if the employer fails to do so, the statute provides two options. If the claimant has paid the medical expenses, the “employee shall be reimbursed for the reasonable expense.” However, if the expenses remain “unpaid,” “payment may be made in behalf of the employee to persons to whom the unpaid expenses may be owing, by order of the worker's compensation magistrate.” This sentence gives the magistrate the discretion to direct payment to the third-party medical provider on “behalf of the employee.” The last sentence provides that the “worker's compensation magistrate may prorate attorney fees at the contingent fee rate paid by the employee.” As I agree with the majority that the word “prorate” simply means to divide or distribute proportionately, the question in this case is simply whether the attorney fees are to be divided between the claimant and the employer, or the claimant and the medical provider.⁴

Reading the first sentence of the statutory provision together with the last two sentences leads to the conclusion that the fees may be prorated between the claimant and the employer. The first sentence establishes an affirmative duty on the employer to pay reasonable medical expenses for work-related injuries. However, if the employer “fails, neglects, or refuses so to do,” payment can be compelled, either by reimbursing the claimant or paying the claimant's medical creditors directly. The last sentence of the statute relates to the sentence preceding it, permitting the proration of attorney fees between the parties when the employer “fails, neglects, or refuses” to pay needed and reasonable medical expenses related to the claimant's work-related injury. In effect, this provision permits shifting to the employer some of the attorney fee burden that the claimant would otherwise bear.

II. ANALYTIC PROBLEMS WITH THE MAJORITY

Contrary to the majority's analysis, there is no principled basis to distinguish an employer from its insurance carrier for the purposes of prorating attorney fees. It makes little sense to suggest, as the majority does, that the claimant's attorney fees can only be prorated between the employer and its carrier. The reasons are fairly obvious. The statute does not say that proration can only occur between an employer and its insurer. Moreover, when an employer is insured, its carrier is merely its agent: the insurer's duty is to indemnify and defend its insured according to the terms of the insurance contract.⁵ In the case of a self-insured employer, the majority's analysis makes even less sense since there is only one entity-the employer-and thus no one with whom to prorate as the majority has exempted the claimant from the proration equation. En fin, whether the employer is self-insured or insured, the claim is paid from the same pocket. Thus, the majority deprives the word “prorate” of any value under any circumstance, and employers will always bear the entire cost of attorney fees. If the Legislature had intended that only the employer pay a claimant's attorney fees, it could have easily said as much and presumably would have done so in much more direct language.

As noted, this Court and the WDCA have long recognized that a workers' compensation claimant is ordinarily responsible for paying his own personal attorney fees.⁶ The majority's holding that workers' compensation claimants are categorically excluded from ever paying any portion of their attorney fees under MCL 418 .315(1) represents a major departure from our caselaw and is inconsistent with MCL 418.858, which permits the director to limit the “maximum attorney fees” “paid by the employee.”⁷ This legislative enactment, permitting the limitation of attorney fees for those representing injured workers in a workers' compensation claim, applies exclusively to disputes between attorneys and their clients⁸ and recognizes that attorney fees are generally payable by the claimant.⁹ Thus, contrary to the majority's claim that requiring a claimant to pay a portion of his attorney fees would “violate the remedial goal of the WDCA,” decades of caselaw, as well as the plain language of MCL 418.858(2), indicate otherwise.

The majority holds that the term “prorate” is limited to “the parties who might contest the payment of medical benefits: employers and their insurance carriers.”¹⁰ As an initial matter, nothing in the language of this provision limits the term “prorate” to the party “contesting ” the payment of medical benefits, to the exclusion of the party “seeking ” the payment of medical benefits. The majority adds language to the statute because the majority imagines that an employer might “be tempted to deny an injured employee's request for coverage in the hope that, in subsequent litigation, they would not be found liable.”¹¹ However, contrary to the apparent beliefs of the majority, an employer is not statutorily liable for every medical expense submitted by a claimant. Rather, pursuant to MCL 418.315, an employer is only obligated to pay reasonable and needed medical expenses for work-related injuries. I find nothing strange or reprehensible, much less unlawful, about an employer declining to pay medical expenses that it had no legal obligation to pay.

Where there are legitimate legal or factual disputes to be resolved on disputed workers' compensation claims, the hearing before the workers' compensation magistrate is the sole mechanism that settles those disputes and determines whether the medical treatment was needed and reasonable, and whether the medical treatment was related to “a personal injury arising out of and in the course of employment.” While employers should be discouraged from wrongly denying medical benefits, the majority articulates no legal or logical basis for concluding that an employer should be discouraged from or punished for correctly denying claims to which a claimant is not entitled, or from seeking a resolution of arguable legal or factual disputes that call into question the employer's obligation to pay.¹²

Here, Chief Justice Kelly's lead opinion states that “the magistrate's proration of attorney fees against defendants was appropriate, given defendants' failure to pay plaintiff's medical services as mandated by § 315(1).”¹³ However, in this case, where plaintiff was a “leased” employee, there were genuine factual and legal issues to be resolved regarding whether Koleaseco or BCN Transportation was plaintiff's employer, and whether a valid workers' compensation insurance policy existed between BCN Transportation and Midwest Employers Casualty Company. In light of these unresolved issues, it is unclear that Midwest unreasonably refused to pay plaintiff's medical benefits. Moreover, the magistrate did not find that Midwest unreasonably refused to pay medical benefits as the basis for assessing attorney fees against Midwest. Rather, the magistrate assessed attorney fees against Midwest on the basis of the “substantial amount of work” and time expended by plaintiff's counsel in litigating the case. However, awarding attorney fees based on the amount of work and time expended by the attorney is in direct contravention of the last sentence of § 315(1), which contemplates the payment of attorney fees on a contingent rather than hourly system. I would remand this case to the magistrate to assess the issue of attorney fees under the appropriate legal standard.

Because I disagree with the majority interpretation of the statute in controversy, MCL 418.315, I respectfully dissent.¹

I. BACKGROUND

Plaintiff, a truck driver, fell off his truck and injured his back while working. He sought workers' compensation benefits under the Worker's Disability Compensation Act (WDCA), MCL 418.101 et seq. The magistrate granted benefits and medical costs to plaintiff, and also imposed $46,034 against defendants for plaintiff's attorney fees pursuant to MCL 418.315(1).² The Workers' Compensation Appellate Commission (WCAC) affirmed.

The Court of Appeals initially denied leave to appeal, but this Court remanded for consideration as on leave granted on the division of defendants' liabilities and the assessment of attorney fees. 477 Mich. 871 (2006). On remand, the Court of Appeals affirmed the WCAC's imposition of liability against certain defendants, and that issue is not the subject of this appeal. The Court of Appeals also affirmed the WCAC's assessment of attorney fees against defendants. Unpublished opinion per curiam of the Court of Appeals, issued April 17, 2008 (Docket Nos. 273293 and 273294). The majority determined that attorney fees could be imposed on employers and their insurers under § 315(1), while Judge Zahra, in dissent, concluded that § 315(1) did not allow such imposition. This Court granted leave to appeal to consider the meaning of § 315(1), 482 Mich. 994 (2008), and now affirms the Court of Appeals. Because I believe the Court of Appeals dissent is correct, I dissent.

II. STANDARD OF REVIEW

Questions of statutory interpretation are reviewed de novo. Brackett v. Focus Hope, Inc., 482 Mich. 269, 275, 753 N.W.2d 207 (2008).

III. STATUTE

MCL 418.315(1) provides, in part:

The instant dispute centers on the meaning of the final sentence, specifically what it means for the magistrate to be allowed to “prorate attorney fees.” Plaintiff contends, and a majority of this Court agrees, that this sentence allows a magistrate, when granting a recovery under the penultimate sentence, to order the employer to pay, in addition to the amount awarded for reimbursement of unpaid medical expenses, the employee's attorney fees attributable to the unpaid benefits.⁴ Defendants, however, argue that the final sentence allows a magistrate, when ordering an employer to pay unpaid medical expenses to “persons to whom the unpaid expenses may be owing,” to deduct a proportionate share from those payments for the employee's attorney fees.⁵

The primary goal of statutory interpretation is to discern and give effect to the Legislature's intent. Neal v. Wilkes, 470 Mich. 661, 665, 685 N.W.2d 648 (2004). A court first looks at the statute's language, Brown v. Detroit Mayor, 478 Mich. 589, 593, 734 N.W.2d 514 (2007), from which “the Legislature's intent must be gathered,” Frankenmuth Mut. Ins. Co. v. Marlette Homes, Inc., 456 Mich. 511, 515, 573 N.W.2d 611 (1998) (quotation marks omitted). When reviewing the statute, “[a]ll words and phrases shall be construed and understood according to the common and approved usage of the language,” MCL 8.3a, and “a word or phrase is given meaning by its context or setting,”⁶ Koontz v. Ameritech Services, Inc., 466 Mich. 304, 318, 645 N.W.2d 34 (2002).

I agree with the Court of Appeals dissent, and with defendants, that the better interpretation of § 315(1)'s final sentence is that a magistrate can apportion an amount of the employee's attorney fees from an employer's payment to the medical care providers. This interpretation rests principally on the meaning of “prorate,” which means “to divide, distribute, or calculate proportionately.” Random House Webster's College Dictionary (1997). Thus, the final sentence can be read to allow the magistrate to either divide or distribute proportionately attorney fees. That the division or distribution must be proportionate necessarily implies that there must be some basis, or rational calculation, upon which the total amount of attorney fees can be divided or distributed. This basis becomes increasingly apparent when § 315(1)' s final sentence is considered with the previous sentence, in which the magistrate is directed to order the employer to make “payment ․ in behalf of the employee to persons to whom the unpaid expenses may be owing.” Thus, payments will be made to medical providers in the amount of the unpaid expenses owed by the employee. These payments logically supply the basis upon which the attorney fees can be proportionately divided, because each payment constitutes a portion of the whole on which the employee's attorney fees are calculated.⁷ That is, if the magistrate orders payment to multiple medical providers, then a share of the employee's attorney fees is deducted from each payment based on the proportion of the whole that each payment represents.

The Legislature's use of the word “may” to confer upon the magistrate the authority to “prorate attorney fees” lends further support to this interpretation. By this word choice, the Legislature has indicated that there are times when a magistrate might not “prorate attorney fees.” If “prorate” is interpreted to allow a division of fees between medical care providers, then the use of “may” in this context makes sense. In those instances that the magistrate directs payment to the medical providers, the magistrate would divide the fees, but when the magistrate only ordered reimbursement to the employee for his or her “reasonable expenses paid,” the magistrate would not divide the fees. Thus, the final sentence recognizes that under the penultimate sentence the magistrate may direct payment either to the employee, in which case the division of attorney fees would be inappropriate, or the magistrate may direct payment to multiple medical care providers, or to the employee and medical care providers, in which case division of the attorney fees would be appropriate.

By contrast, the majority interpretation of § 315(1)'s final sentence allows a magistrate to impose attorney fees against the employer, in addition to the payment for unpaid medical expenses, with utterly no direction concerning the circumstances in which the magistrate should do so. That is, the majority interpretation accords the magistrate the discretion to assess attorney fees against an employer when the employer “fails, neglects, or refuses” to pay benefits, but provides no guidance for ascertaining when that discretion should or should not be exercised. Had the Legislature truly intended for the magistrate to impose attorney fees against an employer, it seems likely that the Legislature would have included some standard for determining the circumstances under which fees should be assessed.⁸

Even more troubling is that the Chief Justice apparently finds the entire final sentence of § 315(1) irrelevant in concluding that a magistrate can impose attorney fees against an employer. She states:

[T]he word ‘may’ bears on whether a proration must occur if a magistrate does award attorney fees․ Should a magistrate determine that only one [party] is liable, the magistrate may impose attorney fees against only that party. Conversely, should the magistrate find multiple parties liable, fees may be prorated accordingly. [Ante at 8-9, 645 N.W.2d 34.]

Thus, the Chief Justice interprets § 315(1) to allow a magistrate to impose attorney fees absent any “proration” of the fees because she interprets “may” as according the magistrate the discretion to decide “whether a proration must occur,” after he has already decided to award attorney fees. If the magistrate determines that the attorney fees should be imposed on “multiple parties,” then the magistrate can “prorate” or divide the fees among those parties. However, if “only one [party] is liable,” the magistrate can impose the fees “against only that party” without having to “prorate” or divide the fees at all. This completely fails to recognize that § 315(1) only allows the magistrate to “prorate” or not “prorate” attorney fees. Interpreting § 315(1) to allow the magistrate to impose attorney fees without relying on the specific authority to “prorate” reads an authorization into the statute that clearly does not exist.

The Chief Justice supports her interpretation by reasoning that because the “statute ․ provides a process for employers and their insurance carriers to object to the medical treatment that an injured employee seeks,” the final sentence “when read with the remainder of the statute, applies to the parties who might contest the payment of medical benefits: employers and their insurance carriers.” Ante at 8, 645 N.W.2d 34. That is, to “harmonize[ ] the final sentence with the remainder of § 315,” and to avoid the final sentence “stand[ing] alone,” § 315(1)'s final sentence must be read to impose additional liability on employers and their insurers, in order to maintain a “unity of purpose.” Ante at 7-8, 645 N.W.2d 34; see also ante at 4, 645 N.W.2d 34 (Hathaway, J., concurring). Contradicting this pursuit of “harmony” and “unity,” however, are fundamental differences between § 315(1)'s final sentence and the preceding sentences, which clearly establish an employer's liability for particular expenses. In these preceding sentences, the Legislature states that the employer “shall furnish, or cause to be furnished,” various reasonable medical expenses and that the employer “shall also supply” various correctional devices (e.g., eyeglasses, artificial limbs, crutches). MCL 418.315(1). If the employee pays these reasonable expenses, then under the penultimate sentence the employee “shall be reimbursed” for the reasonable expense paid by the employee. Id. Thus, the penultimate sentence relates back to the listed expenses that an employer “shall” pay. Attorney fees are not included in those expenses; yet the majority interpretation effectively gives the phrase “may prorate” the same meaning as the phrases “shall furnish” and “shall supply” so that the final sentence imposes an additional payment obligation upon the employer. This conclusion is contrary to the logical assumption that, had the Legislature intended to affirmatively impose payment of attorney fees upon an employer, it would have done so with at least approximately the same clarity with which it imposed liability for other expenses upon the employer earlier within the same subsection.⁹ Instead, the Legislature chose to use considerably different language in the final sentence than in the immediately preceding sentences.¹⁰

The final sentence is much better read, in my judgment, as an adjunct to the magistrate's ability to direct payment to medical providers established in the penultimate sentence. The legislative amendment adding the final sentence to § 315(1) specifically supports such a relationship. Before this amendment, the then-final sentence of former MCL 412.4, which is now § 315(1)'s penultimate sentence, only allowed the employee to receive payment for medical expenses:

If the employer shall fail, neglect or refuse so to do, such employee shall be reimbursed for the reasonable expense incurred by or on his behalf in providing the same, by an award of the commission. [MCL 412.4, as amended by 1955 PA 250.]

When the Legislature amended the statute to allow payment to also be directed to the medical providers, it added the now-final sentence in dispute here:

If the employer shall fail, neglect or refuse so to do, such employee shall be reimbursed for the reasonable expense paid by him, or payment may be made in behalf of such employee to persons to whom such unpaid expenses may be owing, by an award of the commission. The commission may prorate attorney fees in such cases at the contingent fee rate paid by such employee and it may also prorate such payments in the event of redemptions. [MCL 412.4, as amended by 1963 PA 199.]

Thus, the magistrate's ability to “prorate attorney fees” directly accompanied the magistrate's ability to direct payments to medical providers.¹¹ This association seems to indicate that the Legislature recognized that when medical providers received payment from the employer, the medical providers themselves could fairly be said to have been enriched by the work of the employee's attorney.

Prior to the amendment, a medical provider was relegated to seeking payment from the employee through a separate cause of action. Even if the medical providers recovered the full amount in the action, each would still have to pay its own attorney costs due to the longstanding “American Rule” regarding attorney fees.¹² In effect, the Legislature set forth a shortcut to this practice in § 315(1). Rather than requiring medical providers to hire their own attorneys and commence separate actions against the employee, § 315(1) now allows the medical provider to recover through the action instituted by the employee.¹³ Medical providers receive the same reimbursement amount as they did before the amendment, while employees retain more of the recovery to which they are entitled.¹⁴

The majority interpretation would impose an additional cost upon the workers' compensation process by penalizing employers and forcing them to pay not only for their own attorneys, but also for their employees' attorneys. This increased expense is at odds with § 801(3), in which the Legislature has already provided a penalty for unpaid medical benefits:

If medical bills or travel allowance are not paid within 30 days after the carrier has received notice of nonpayment by certified mail, in cases where there is no ongoing dispute, $50.00 or the amount of the bill due, whichever is less, shall be added and paid to the worker for each day over 30 days in which the medical bills or travel allowance are not paid. Not more than $1,500.00 in total may be added pursuant to this subsection.

The majority interpretation would establish a new penalty provision with § 315(1)'s final sentence that is inconsistent with the WDCA's actual penalty provision, in which the Legislature expressly provides for a penalty payment only “where there is no ongoing dispute.” Nothing in the majority interpretation prevents the attorney-fees penalty from operating even in the presence of a dispute, which is directly contrary to when the Legislature has stated a penalty should apply. If the Legislature intended § 315(1) to operate as a penalty provision, then it would seem that such penalty would at least be assessed consistently with the penalty provided under § 801(3). This lack of consistency casts further doubt on the majority interpretation.

With respect to the magistrate's authority over medical providers that are not parties to the action, § 315(2) implies that the magistrate indeed does have authority over medical providers when they are operating in the context of § 315 by providing that any recovery by a medical provider can be reduced by the magistrate to the “maximum charge established under the rules.” (Emphasis added.) Thus, the magistrate may reduce the provider's recovery even if the provider is not a party to the action. It follows that the magistrate has the same ability to reduce the recovery to pay for an employee's attorney fees when the statute grants the magistrate such authority in § 315(1).¹⁵

In conclusion, several clues supplied by § 315(1) and the WDCA support the interpretation set forth in this dissent. Particularly relevant in this regard are: (1) the use of “prorate,” the proportionality of the division this term conveys, and the fact that there is some logical standard or basis for calculating proportions under this interpretation, but not under the majority interpretation; (2) the use of “may” in describing the magistrate's authority to prorate, and the fact that there is some logical standard or basis for exercising this authority under this interpretation, but not under the majority interpretation; (3) the consistency of this interpretation, and the lack of consistency of the majority interpretation, with the penalty provision in § 801(3); (4) the fact that the majority interpretation reads words into § 315(1) that are absent and nullifies words that are present; (5) the significant differences in language between the introductory sentences of § 315(1), which clearly establish an employer's liability for particular expenses, and its final sentence, which does nothing equivalent; (6) the logical implications drawn from § 315(1)'s final sentence being positioned after the penultimate sentence, and the legislative amendment of § 315(1); and (7) the similarity in the arrangement between employees' attorneys and medical providers set forth in this dissent and the arrangement between employees' attorneys and nonparties set forth in §§ 821 and 827.

IV. RESPONSE TO THE CHIEF JUSTICE

Not content with merely misconstruing the law, the Chief Justice adopts an approach to statutory interpretation that can only be described as bizarre. She begins her interpretation by asserting that the “threshold question is whether ․ the last sentence of § 315(1) is ambiguous.” Ante at 7, 645 N.W.2d 34.¹⁶ After an entirely gratuitous citation to the dictionary definition of “prorate,” one that promptly proves to be irrelevant to any subsequent analysis, the Chief Justice determines that “the term ‘prorate’ could reasonably apply to employers, their insurance carriers, health care providers, and to employees seeking workers' compensation benefits, or to any combination of them.” Ante at 7, 645 N.W.2d 34. This finding should come as no surprise considering the Chief Justice's focus on the word “prorate” without regard to its context. Next, the Chief Justice initially determines that “neither § 315 as a whole nor the statute's other provisions indicates the parties to whom a division or distribution of attorney fees applies,” but nevertheless proceeds to adopt her own interpretation because it “unifies the last sentence of § 315(1) with the remainder of the statute.” Ante at 8, 645 N.W.2d 34. Satisfied that her interpretation also gives effect to the word “may,” cf. supra at 7-8, the Chief Justice then concludes that her interpretation “affords the phrase ‘may prorate’ its full meaning.” Ante at 9. After all this, the Chief Justice continues to answer her “threshold question” in the affirmative, concluding that the statute is ambiguous because other “interpretations of § 315(1) exist.” Ante at 9. That is, rather than even giving the appearance that she has reached the conclusion that the statute is “ambiguous” based upon her difficulty in ascertaining its meaning, the Chief Justice withdraws from the process of statutory interpretation once other interpretations are presented. It is apparently much easier to summarily declare “ambiguity,” and thereby avoid the inconvenience of having to actually carry out one's judicial duties by deciding what the statute or contract actually states.¹⁷

A. Ambiguity

As evident from her “interpretation” here, the Chief Justice's dependence on an extraordinarily low threshold for finding ambiguity, and her resultant conclusion that § 315(1) is, of course, “ambiguous,” are essential to her analysis. The Chief Justice then proceeds on the assumption that, once ambiguity has been established, a judge is essentially unencumbered by any serious restraints imposed by the language of a statute or contract and effectively has carte blanche to utilize whatever factors are deemed appropriate in reaching a result.

I disagree with this approach to “interpretation,” not merely because it divorces the interpretative process from the law that is purportedly being “interpreted,” but also because it raises the unavoidable suspicion that a judge is reaching the result he or she would personally prefer rather than the result compelled by the law. That is, instead of abiding by the traditional exercise of the “judicial power” in which the judge, employing the statute or contract itself as the lodestar, says only what the law “is,” the Chief Justice by her understanding of ambiguity would effectively exercise the “legislative power” to say what the law “ought to be” by arbitrarily picking and choosing among a practically limitless variety of available extra-textual considerations.¹⁸ For the Chief Justice, the concept of ambiguity is one to be both casually and peremptorily invoked-as in this case in which no party has even asserted that the statute is ambiguous-to avoid the discipline of the traditional judicial process, while maintaining at least some appearance that this process has been respected. The lower the barrier to finding ambiguity, the more effortlessly a judge can dispense with the hard work of giving meaning to difficult and complex provisions of statutes and contracts, and the less risk that this regular process of interpretation will lead to the “wrong” results. A facile resort to ambiguity affords the judge a readily-available means of acting beyond the scope of his or her authority to exercise exclusively the “judicial power.”

It is hard to conceive of a much lower barrier to ambiguity than that propounded by the Chief Justice. A statute, we are instructed, is “ambiguous” when it is “capable of being understood by reasonably well-informed persons in two or more different senses.”¹⁹ Ante at 33. If this definition does not describe almost all litigation coming before this Court, it certainly describes much of this litigation. There are relatively few appellate litigants-most of whom have undertaken the financial burdens of litigation, accepted the psychological and emotional tolls of a protracted legal process, and endured trial, intermediate appeal, Supreme Court appeal, remands, and motions for reconsideration, all while being represented by attorneys who are ethically obligated to ensure some degree of meritoriousness in their clients' legal positions-whose statutory and contractual disputes could not be fairly characterized under the Chief Justice's definition as entailing ambiguity. Indeed, little would be clearly excluded from the realm of ambiguity by her definition other than genuinely frivolous lawsuits, which are both rare and sanctionable. Matters of interpretation are resolved in judicial venues precisely because statutes and contracts are susceptible to “being understood by reasonably well-informed persons in two or more different senses.”

Even more remarkable, however, is that the Chief Justice's own “analysis” in this case does not even satisfy her own low threshold for discerning ambiguity, since there is nothing therein that suggests that either the plaintiff's or the defendants' position is “reasonable.” In fact, the Chief Justice never once compares any interpretation other than her own to the statute. She simply notes the “exist[ence]” of competing interpretations and declares ambiguity. Ante at 9. Essentially, the Chief Justice's standard for discerning ambiguity is more accurately stated as: “A statute is ambiguous when parties offer conflicting interpretations.”²⁰

The Chief Justice has previously observed that, “I find frequent ambiguity in statutory language.” Haynes v. Neshewat, 477 Mich. 29, 40, 729 N.W.2d 488 (2007) (Kelly, J., concurring).²¹ This is not surprising. For once a statute or contract has been deemed “ambiguous,” this Court “may go beyond the plain language of the statute [or contract],” ante at 6, 729 N.W.2d 488, and then employ decision-making factors that would ordinarily be unavailable in the interpretative process. There is no lack of variety in these newly-available factors. As I offered in my concurring opinion in Haynes:

Having reached the proper result in this case through a proper legal analysis, Justice Kelly in a concurrence to her own majority opinion proceeds to demonstrate that she could have reached the same result through less disciplined means. Not content to rely, as she does in her majority opinion, on the actual language of the law, Justice Kelly invokes an array of alternative techniques to “interpret” the law in her concurring opinion. She relies upon a “liberal construction” of the statute in question; she relies upon characterizations of the statute as “broad” and “remedial”; she relies upon a summary description of the law as “ambiguous,” therefore apparently affording her the discretion to pick and choose the law she prefers; she relies upon the Legislature's inaction in the wake of an earlier court decision, equating this to approval of the Court's decision; she disparages the value of dictionaries as an essential tool in the interpretative process; and she relies upon an extraordinarily broad understanding of “legislative history.” For the sake of future reference, a further catalogue of language-avoidance “interpretative” techniques would include the following: divining the “spirit of a statute”; relying upon considerations of “public policy”; standardlessly applying “equity”; characterizing statutes with which a judge disagrees as “absurd”; and concocting creative “balancing” and “totality of circumstances” tests. Innovatively applied, each of these techniques can be relied upon to avoid the hard task of having to discern a statute's meaning from its actual language. [Haynes, 477 Mich. at 48-49, 729 N.W.2d 488 (Markman, J., concurring).]

The use of these and other factors to reach a decision far more closely resembles the exercise of the constitution's “legislative power” than its “judicial power.” It is an undisciplined and standardless approach to giving meaning to the law, enabling the judge at his or her discretion to determine which factors to take into account, and what priority to give those factors.²² It is an approach that disrespects the separation of powers²³ and that enhances the power of judges at the expense of the rule of law.²⁴

B. Dissent and Ambiguity

The Chief Justice's definition of ambiguity stands in contrast to what has been the predominant approach in our state. In Mayor of Lansing v. Pub. Service Comm., 470 Mich. 154, 166, 680 N.W.2d 840 (2004), this Court stated that “a provision of the law is ambiguous only if it ‘irreconcilably conflict [s]’ with another provision or when it is equally susceptible to more than a single meaning.” (Citation omitted.) Similarly, in Klapp v. United Ins. Group Agency, Inc., 468 Mich. 459, 467, 663 N.W.2d 447 (2003), this Court found a contract to be ambiguous because two provisions “irreconcilably conflict[ed]” with each other.²⁵ Such an understanding of ambiguity restricts the judge to saying what the law “is” based on the words chosen by the Legislature in all but the most extraordinary circumstances. While the Chief Justice suggests that the relative rarity of a finding that a law or contract is ambiguous under this definition constitutes its vice, ante at 23, 663 N.W.2d 447, by preserving a broader realm within which the ordinary process of interpretation may proceed, and in which deference will be shown to the decisions of the lawmaker, this may be better understood as its principal virtue.

Many disputes before this Court involve difficult or complex interpretations of statutes and contracts, yet it remains our responsibility to sort out these difficulties and complexities and finally determine what constitutes the most reasonable, if not always the perfect or the crystalline, meaning of the law. Judges have traditionally approached this responsibility by looking to the language of a statute or contract, considering relevant dictionary definitions of words and phrases,²⁶ assessing the existence and meanings of “terms of art,”²⁷ evaluating the context of words²⁸ and grammatical, syntactical, and punctuational clues,²⁹ comparing related and companion provisions of the law,³⁰ discerning the organization and structure of statutes and contracts,³¹ invoking traditional default rules and maxims of interpretation,³² and applying proper understandings of legal purpose and precedent.³³

This should not be understood as a mechanical process, for judges engaged conscientiously in this exercise will sometimes disagree about the meaning of the law, but it is a process in which the focus is directed outwardly toward the language of the statute or contract, rather than inwardly toward the personal predilections of the judge.³⁴ As Justice Felix Frankfurter once remarked, “the highest exercise of judicial duty is to subordinate one's personal will and one's private views to the law.”

C. Premises of Ambiguity Rule

Despite the Chief Justice's view that an understanding of ambiguity does not constitute “binding precedent,” she nonetheless undertakes a strenuous effort to identify precedents in support of her position, while undertaking no discernible effort to actually justify her own understanding. Rather than constituting an “aberrant” approach to interpretation, ante at 30 n. 66, 663 N.W.2d 447, Mayor of Lansing and Klapp set forth a rule of statutory interpretation that, as with most other such rules, is grounded in logic and common sense, and is designed to faithfully ascertain the intentions of the Legislature. The understanding of ambiguity articulated in Mayor of Lansing and Klapp is premised upon longstanding principles of sound constitutional government that are suggested by the following inquiries directed toward those who would advocate a broader understanding:

-When ambiguity is discerned, ordinary rules of interpretation no longer apply-as the Chief Justice asserts, a court may then “go beyond the plain language of a statute [or contract]”-and judges are accorded broad and arbitrary discretion to pick and choose from among a wide variety of factors as to how the law should be given meaning. Why would any responsible legal system wish to depart from its ordinary processes, from ordinary rules of interpretation and traditional exercises of the judicial power, with any greater frequency than is absolutely required?

-When ambiguity is discerned, ordinary rules of interpretation no longer apply-as the Chief Justice asserts, a court may then “go beyond the plain language of a statute [or contract]”-and judges are accorded broad and arbitrary discretion to pick and choose from among a wide variety of factors as to how the law should be given meaning. Why would any responsible legal system wish to replace a reasonably predictable rule of law with arbitrary, and possibly idiosyncratic, determinations of judges any more often than is absolutely required?

-When ambiguity is discerned, ordinary rules of interpretation no longer apply-as the Chief Justice asserts, a court may then “go beyond the plain language of a statute [or contract]”-and judges are accorded broad and arbitrary discretion to pick and choose from among a wide variety of factors as to how the law should be given meaning. Why would any responsible legal system wish to minimize the realm in which judges are bound by the written law and instead maximize the realm in which written law is subrogated to a variety of indeterminate factors at a judge's disposal?

-When ambiguity is discerned, ordinary rules of interpretation no longer apply-as the Chief Justice asserts, a court may then “go beyond the plain language of a statute [or contract]”-and judges are accorded broad and arbitrary discretion to pick and choose from among a wide variety of factors as to how the law should be given meaning. Why would any responsible legal system wish to instill in litigants and the public the idea that the personal preferences of a judge, rather than the requirements of the law, are what is most important to the resolution of a legal dispute?

-When ambiguity is discerned, the “judicial power,” the only power properly exercised by a judge under the Constitution, is exercised in a manner incompatible with its usual exercise-as the Chief Justice asserts, a court may then “go beyond the plain language of a statute [or contract].” Why would any responsible legal system wish to depart from traditional constitutional norms or to obscure the Constitution's separation of powers?

By contrast, what logical or other arguments does the Chief Justice have for substantially expanding the range of judicial decision-making within which courts “may go beyond the plain language of the statute [or contract],” and within which “it is the duty of the courts,” instead of the lawmaker, to give a “reasonable and sensible” interpretation to the law? Ante at 6, 663 N.W.2d 447. What conceivable arguments does the Chief Justice have for favoring an expansion in the range of judicial decision-making within which judges are empowered to devise, at their discretion, ad hoc and unpredictable criteria for determining how the law will be defined? Hers is a hollow opinion, evidenced not only by her failure to abide even by her own standards for identifying ambiguity, but also by her failure to articulate even a minimal justification for these standards.³⁵

D. Logic of Ambiguity Rule

The Chief Justice asserts that language is ambiguous when it is “capable of being understood by reasonably well-informed persons in two or more different senses,” ante at 33, 663 N.W.2d 447, but she never supplies any explanation for how this definition is to operate practically in the real world. She fails to answer, or even ask, whether there is some threshold beyond which it can be said that an interpretation is “capable of being understood by reasonably well-informed persons in two or more different senses.” Is it sufficient, for example, in finding ambiguity that 10% or 20% or 30% of all “reasonably well-informed persons” might subscribe to a particular interpretation? Indeed, is it sufficient that the parties merely disagree, or must the Court intervene to determine that the position of each side is itself reasonable?

Given that the Mayor of Lansing/Klapp standard can be quantified as a 50% test-i.e., if there are two equally reasonable interpretations, a law is ambiguous; otherwise it is not-how would the Chief Justice characterize her standard? What is the approximate threshold at which a law should be found ambiguous? Unless any disagreement by any single “reasonably well-informed person” would be sufficient to trigger a finding of ambiguity, where is this threshold point? If 90 percent of all “reasonably well-informed persons” believe that the proper interpretation of a statute is X, and 10 percent believe that it is Y, or if a judge is 90% persuaded that the more reasonable interpretation is X, and 10% persuaded that it is Y, is there ambiguity? Obviously, the Chief Justice's threshold for finding ambiguity falls somewhere below 50%, but approximately where? Are there any other areas of the law in which a judge, in the exercise of his fundamental obligation to interpret the law, must subordinate his or her own judgment concerning the meaning of the law to that of “reasonably well-informed [other] persons,” or to any other group of persons?

Given that the Chief Justice's threshold must necessarily be less than 50%, why should that level ever be deemed sufficient to allow a judge to dispense with the language of a statute or contract as the dispositive factor in determining its meaning? That is, if a judge is 51% or 61% or 71% persuaded that some interpretation of the law is the better, or the “most reasonable,” interpretation, what is the rationale for allowing a judge to interpret the law in some different fashion? Why would a judge ever adopt an interpretation that he or she believes is the second-best, or the second most reasonable, interpretation? If any interpretation of the law, concerning which a judge is less than 100% certain-say a 95% certainty-will ever permit that judge to adopt such interpretation as the better, or the “most reasonable” interpretation, what is the reason why a 51 % or 61% or 71% interpretation should not prevail over a 29% or 39% or 49% interpretation-much less with respect to what the Chief Justice describes as “more” interpretations that might be offered, see ante at 31, 663 N.W.2d 447, none of which may draw their legitimacy from the words of a statute or contract? Why shouldn't the better, or the “most reasonable,” interpretation always prevail? Absent a perfectly clear statute or contract, why should a judge not prefer the 51 % or 61 % or 71 % interpretation? Why should a 29% or 39% interpretation ever be placed on par with a 71 % or 61 % interpretation? Indeed, why should a definition of ambiguity be adopted that allows a judge to determine that neither the 75% nor the 25% ”most reasonable” interpretations will be adopted? Ante at 31, 663 N.W.2d 447. Why isn't it fair to conclude that the better, or the “most reasonable,” interpretation-which may be the 51 % interpretation-is simply the correct interpretation of the law?

The Chief Justice has little interest in parsing § 315(1), little interest in explaining why either of the parties' interpretations are “reasonable” or “unreasonable,” and little interest in explaining why, in either constitutional or logical terms, her understanding of ambiguity makes sense, much less why it makes better sense than what Mayor of Lansing and Klapp have set forth. Instead, the Chief Justice is content to proceed, without explanation, upon her deconstruction of the law of Michigan.

E. No Previously-Established Rules

After her “analysis” of § 315(1)-one consuming nearly a full paragraph and in which a sideways glance at the sentence immediately preceding the one in dispute is apparently seen as excessively rigorous-the Chief Justice deems the statute “ambiguous,” i.e., alternative interpretations could “reasonably apply.” She then proceeds to select from among the available “interpretative” tools and adopt those that purportedly support her result. Apparently, for every ambiguous statute or contract reaching this Court, and there will be many such statutes and contracts if the Chief Justice's position ever prevails, she will re-embark upon this “interpretative” process, picking and choosing at her discretion from among some uncertain array of tools lying “beyond the plain language of the statute [or contract].” See Haynes, 477 Mich. at 48-49, 729 N.W.2d 488 (Markman, J., concurring), for a partial listing of such tools. The litigants will, of course, have no notice beforehand of which tools are to be employed, for the justices themselves will not know this beforehand. Among the universe of potential tools extending “beyond the plain language of the statute [or contract],” the Chief Justice will, by some means never quite explained, determine which of these are deemed to be relevant in interpreting the statute or contract in that case, and after several turns and twists of the mechanisms of her own internal Enigma machine, some result will emerge. One result will emerge if the “relevant” legislative history, for example, is the Senate committee report, another result will emerge if the “relevant” legislative history is the House committee report. Still other results will emerge if the “relevant” legislative history is comprised of the statements of the Senate or House committee chairman, the floor statements of the Senate or House majority leader, the committee testimony of witness A in the Senate or that of witnesses B, C, or D in the House, the staff analyses of the House or the Senate, or the floor colloquy of two random members of the House or two other random members of the Senate.³⁶ All in all, this is a fine process, except that it is not a legal or judicial process. Instead, it is a process in which judges in the very guise of selecting the tools and factors to be employed in “interpreting” the law are effectively its formulators-in short, judges who are wielding the legislative, not the judicial, power.

A critical strength of a judicial philosophy committed to exercising only the constitution's “judicial power” is that reasonably clear rules of decision-making are established before the fact. That is, a judge essentially promises the parties that he or she will decide their case, as with all others, by attempting to discern the reasonable meaning of relevant statutes or contracts and that this will be done by relying upon recognized rules, and tools, of interpretation. By contrast, under the Chief Justice's approach to ambiguity, in which there is essentially a limitless array of rules, and tools, that may be employed for “defining” the law apart from its language, there is no consistently applied interpretative process with which the judge promises beforehand to comply. He or she may promise to be “fair,” and he or she may seek to be fair, but there are no rules for how this fairness is to be achieved. There is only the promise that the judge will address each dispute on a case-by-case basis, using whatever rules, and whichever tools, he or she believes are required in that instance. And the suspicion simply cannot be avoided that these varying and indeterminate rules, and tools, may be largely a function of the outcome preferred by the judge and by his or her personal attitudes toward the parties and their causes. Any interpretative rules will be identified only after the fact, and these “rules” may or may not have been invoked in resolving yesterday's dispute, and may or may not be employed in resolving tomorrow's dispute. Any judge can concoct an after-the-fact rationale for a decision; the judicial process, however, is predicated upon before-the-fact rationales. An ad hoc process is not a judicial process at all. In the place of predetermined rules-otherwise understood as the rule of law-the Chief Justice would substitute rules to be determined later.³⁷

F. Chief Justice's Tools in This Case

What among the universe of available post-ambiguity tools does the Chief Justice choose to consider in reaching her decision here? The Chief Justice states that “caselaw,” among other tools, supports her interpretation of § 315(1). In evaluating this factor, the Chief Justice mainly invokes broad “public policy” considerations. For example, the Chief Justice, citing Harvlie v. Jack Post Corp, 2006 Mich. ACO 69, emphasizes that the “WCAC has explicitly recognized the importance of holding employers and their insurance carriers responsible for a proration of attorney fees pursuant to § 315(1).” Ante at 35, 729 N.W.2d 488. Yet, in Harvlie, this “importance” was drawn from the following: “The attorney fee provision of Section 315 was designed to promote the assistance of counsel in medical dispute cases where there are minimal or no wage loss benefits from which to obtain an attorney fee.” 2006 ACO 69, at 3 (emphasis added). In essence, Harvlie found that interpreting § 315(1)'s final sentence to require an employer to pay attorney fees made it more likely that an attorney would take a case in which the only recovery available was based on medical costs. Thus, the “importance” of enforcing the majority interpretation is based on this putative “design” even though the reasoning in Harvlie in no way bears this out. The majority interpretation does not obviously “promote the assistance of counsel” because the employee's attorney recovers the same amount-the contingency fee calculated on the recovered medical expenses-regardless of who pays his fees. See supra notes 4 and 5. Thus, the supposed “design” set forth in Harvlie is a false one. Nonetheless, the Chief Justice insists that this reasoning somehow sustains her interpretation and supplies better guidance than the actual words of § 315(1).³⁸

The Chief Justice next relies on Boyce v. Grand Rapids Asphalt Paving Co., 117 Mich.App. 546, 552, 324 N.W.2d 28 (1982), in which, after resolving a workers' compensation attorney fees dispute on the grounds that an administrative rule did not allow an employee to recover fees from a medical provider or employer,³⁹ the court proceeded to opine that such a result did not serve “justice.” However, whatever an individual judge's personal sense of “justice,” it is the responsibility of that judge to do “justice under law.” Judges have no proper authority to countermand the decisions of the lawmaker by substituting a personal sense of “justice” for the justice of the law. I agree that there can be reasonable disagreement as to whether the position asserted by plaintiff or by defendants in this case is more “just.” However, that question has never been thought to be dispositive, or even relevant, in giving meaning to statutes and contracts, and it is not made more dispositive or relevant because it was addressed by the lower court. Many persons, including judges, may have a strong personal sense of “justice”-how public resources should be apportioned, how rights and responsibilities should be understood, how the limits of government should be defined-but it is “justice under law ” that is the tool of the trade of the judge and that defines the judicial power. Moreover, even if ascertaining what constituted abstract “justice” in the instant case did define this Court's mission, the Chief Justice never even purports to explain why her conception of “justice”-requiring employers to pay employee's workers' compensation attorney fees-is somehow superior to alternative conceptions of “justice,” including that of the Legislature which has chosen to rely upon a different rule than the Chief Justice.⁴⁰

The Chief Justice also relies on the WDCA's “remedial ․ nature” to support her interpretation. Ante at 34, 324 N.W.2d 28. The WDCA is indeed remedial, because it provides a remedy for employees injured on the job. Yet, the Chief Justice fails to explain why this purpose, as important as it obviously is, should be elevated above every other purpose of the Legislature. The WDCA is the Legislature's attempt to fulfill at least two purposes: “to ‘provide ․ not only for employees a remedy which is both expeditious and independent of proof of fault, but also for employers a liability which is limited and determinate.’ “ Simkins v. Gen. Motors Corp. (After Remand), 453 Mich. 703, 710, 556 N.W.2d 839 (1996) (citations omitted).⁴¹ By arbitrarily establishing priorities among the several purposes of the WDCA, the Chief Justice undermines the real-world negotiations and compromises that were engaged in by the Legislature. In the place of a statute enacted by a majority of the 148 members of the Legislature, the majority interpretation substitutes a statute approved only by four judges acting well beyond their proper authority.

The Chief Justice then asserts that she is empowered to “construe the act's terms liberally,” ante at 34, 556 N.W.2d 839-rather than merely “reasonably.” As a result of this process, one essentially indistinguishable from a judge asserting his or her right to place a thumb on the scales of justice, the Chief Justice proclaims that plaintiff is entitled under the WDCA to the greatest possible amount of recovery. Ante at 34, 556 N.W.2d 839. Is there anything more to the Chief Justice's “liberal” construction than that plaintiff prevails on everything? Is this all that is implied by a “liberal” construction? At what point does the Court decide that its “liberal” construction has fully accomplished the goals of the WDCA? When the employee receives all that he asks for? When an employer can no longer afford to maintain its insurance, or cannot afford to maintain an employee? Does a “liberal” construction militate in favor even of a recovery of benefits that is not contemplated by the actual language of the WDCA? Having declined from the outset to attempt any “reasonable” interpretation of § 315(1), the Chief Justice is far more enthusiastic about proclaiming “ambiguity” and immediately proceeding to a “liberal” interpretation. That is, in the place of an interpretation that is grounded in some meaningful way upon the law itself, the Chief Justice much prefers an “interpretation” that is not really an interpretation at all. She engages in what is merely a political impulse, rather than any serious construction of the law as might once have been expected from a justice of the Supreme Court of this state. Rather than working to achieve the “best” possible or “most reasonable” interpretation of the law, the Chief Justice, apparently fearing that little good would come from such an approach, instead exercises a power that does not belong to judges under the pretext that she is actually engaging in some genuine interpretation of the law, albeit a “liberal” interpretation. While a genuine interpretation of the law is designed to achieve as perfect an understanding as possible of what the lawmaker has intended, a “liberal” interpretation appears here to be little more than a means to achieving a particular result.

In short, the Chief Justice invokes her own understanding of ambiguity for the purpose of providing some justification for her preferred course of “going beyond the plain language of the statute,” and thereby avoiding the difficult process of giving fair meaning to a statute, the fair meaning of which may not be to her liking. “No judge should manufacture ambiguity.” Paige v. City of Sterling Hts., 476 Mich. 495, 542, 720 N.W.2d 219 (2006) (Cavanagh, J., concurring in part) (emphasis omitted). Yet, there is no longer any need to “manufacture ambiguity” in light of the extraordinarily low threshold by which it can be found under the Chief Justice's definition. In virtually every instance in which ambiguity is invoked, the Chief Justice would circumvent the actual language of a statute or contract in favor of her own notion of how that statute or contract should be configured.

G. Stare Decisis

After stating that “stare decisis does not apply” to the Mayor of Lansing standard for determining ambiguity, ante at 14 n.. 36, 680 N.W.2d 840, the Chief Justice nonetheless devotes almost a third of her opinion to rejecting the stare decisis test in Robinson v. Detroit, 462 Mich. 439, 613 N.W.2d 307 (2000), constructing a new test, and then “apply[ing]” it to Mayor of Lansing. It should be emphasized that only one other justice is in agreement.⁴² This leads to several reflections concerning the Chief Justice and precedent:

(1) The Chief Justice has repeatedly criticized other justices for “unnecessarily” overruling precedent.⁴³ What could be less “necessary” than to overturn a case she characterizes as nonbinding precedent? The Chief Justice has also previously stated that a departure from precedent must be supported by some “special justification.”⁴⁴ What “special justification” could exist to overrule a case that she does not consider formally binding precedent?⁴⁵

(2) Given that in this case the Chief Justice would expressly overrule, not one, but two of this Court's prior decisions,

one is naturally tempted to re-inquire, see Rowland v. Washtenaw Co. Rd. Comm., 477 Mich. 197, 223-228, 731 N.W.2d 41 (2007) (Markman, J., concurring), whether the ongoing dispute between the [former] majority and Justice Kelly over overrulings of precedent truly concerns attitudes toward stare decisis or merely attitudes toward particular previous decisions of this Court. [People v. Smith, 478 Mich. 292, 322-323 n. 17, 733 N.W.2d 351 (2007).]

“A justice's perspective on stare decisis is not evidenced by her willingness to maintain precedents with which she agrees, but by her willingness to maintain precedents with which she disagrees.” Rowland, 477 Mich. at 224-225 n. 3, 731 N.W.2d 41 (Markman, J., concurring). Now that the Chief Justice is positioned to overrule decisions with which she disagrees, her actions increasingly demonstrate that her former claims of fealty toward stare decisis were considerably overstated. Despite all her rhetoric concerning the importance of stare decisis for the exercise of the judicial power, see, e.g., her hollow claim that she possessed a “differing [and elevated] esteem for stare decisis” than another justice, People v. Gardner, 482 Mich. 41, 88 n. 31, 753 N.W.2d 78 (2008), such rhetoric was in reality little more than a means of communicating her opposition to overruling particular past decisions with which she agreed.⁴⁶

(3) As I also asserted in Rowland, 477 Mich. at 26, 727 N.W.2d 127:

[N]o meaningful discussion of a court's attitude toward precedent can be based solely on an arithmetical analysis in which raw numbers of overrulings are simply counted. Such an analysis obscures that not all precedents are built alike, that some are better reasoned than others, that some are grounded in the exercise of discretionary judgments and others in the interpretation of plain language, that some are thorough in their analyses and others superficial.

The chart attached to my concurring opinion in Rowland demonstrates that the former majority's overrulings of precedent overwhelmingly occurred in cases involving what the then-majority justices viewed as the “misinterpretation of straightforward words and phrases in statutes and contracts, in which words that were not there were read into the law or words that were there were read out of the law.” Id. at 226, 228-247, 731 N.W.2d 41. In contrast, the new majority's overrulings of precedent has moved toward just the opposite result, replacing decisions that sought to give reasonable meaning to the words of the law with decisions in which “words that were not there were read into the law or words that were there were read out of the law.” That is, when the previous majority overruled a precedent, it was to ensure that the decisions of this Court more closely reflected the judgments of the people's elected legislative representatives and it was to more closely align case law and statutory law. By contrast, when the new majority has overruled, or at least ignored, a precedent, it has been to create a greater disparity between that case law and the statutory law.

(4) Indeed, since Chief Justice Kelly became a part of the new majority, this majority has dealt with precedents it did not like in an especially inappropriate manner-by simply ignoring them. In the interest of clearing the law of this state of multiple and inconsistent precedents on the same matters of law, the former majority forthrightly and explicitly overruled precedents and never sought to obscure this process or to misleadingly minimize the number of overturned precedents, by either ignoring disfavored precedents or by dubiously “distinguishing” prior case law. Doubtlessly, because it is cognizant of the gap between its past rhetoric extolling the importance of stare decisis and its present actions disregarding stare decisis, the new majority has made an increasingly regular practice of simply ignoring inconvenient precedents.⁴⁷ As a result for years to come, the clear rule of law will be stunted in this state as legal practitioners and judges will be able to pick and choose between competing and inconsistent precedents.

(5) The Chief Justice concludes that Robinson's standard for overruling binding precedent is “insufficiently respectful of precedent” because “not once has the Court cited it as a basis for upholding a prior decision.” Ante at 16-17, 731 N.W.2d 41. The Chief Justice, however, fails to illuminate the reader as to the number of occasions on which she has concluded that binding precedent was wrongly decided and yet joined an opinion maintaining that precedent. Perhaps, this is because the answer is “never.” Not once has the Chief Justice joined an opinion finding a “compelling justification,” or any other basis, for upholding a prior decision that she believed was wrongly decided.⁴⁸ More to the point, however, in disparaging the impact of Robinson, the Chief Justice disregards that cases in which Robinson would have been viewed as militating against an overruling of precedent would have been precisely those cases in which there never would have been an opinion issuing from this Court in the first place.⁴⁹

(6) In response to my concurring opinion in Rowland, then-Justice Kelly stated:

Justice Markman challenges me to develop my “own standards” concerning when I would overturn precedent. But I have no need to create my own standards when well-reasoned standards have been established in the laws of this country for over 150 years. As noted in McDowell [v Oyer, 21 Pa. 417, 423 (1853) ], when precedents are “free from absurdity, not mischievous in practice, and consistent with one another,” they should be retained. McDowell, 21 Pa. at 423. I would not lightly adopt new rules to guide my judicial philosophy when traditional tools used by courts throughout their history continue to serve well. [Rowland, 477 Mich. at 255 n. 8, 731 N.W.2d 41 (Kelly, J., concurring in part and dissenting in part).]

However, the Chief Justice now apparently finds it necessary to depart from the 150-year old standard that she has previously hailed to fashion her own new “compelling justification” standard, with its seven evaluative criteria, and we are left to ponder why she no longer views the “free from absurdity, not mischievous in practice, and consistent with another” standard as a sufficient test.⁵⁰

Moreover, it is perplexing why the Chief Justice feels that it is necessary to overrule Robinson and replace it with her new test given the similarity of these standards.⁵¹ Why, to use her own standards, is this “necessary” and what is the “compelling justification” for doing this? Indeed, given the Chief Justice's statements that the “application [of Robinson] has proven superficial and cursory,” ante at 16, 613 N.W.2d 307, and that Robinson, “as previously applied” is “insufficiently respectful of precedent,” ante at 17, 613 N.W.2d 307, one has to wonder whether her real concern is not with the Robinson test itself, but merely with what she views as the misapplication of that test.

V. CONCLUSION

I would reverse the Court of Appeals because the final sentence of MCL 418.315(1) does not allow a magistrate to assess an employee's attorney fees against the employer. Rather, that sentence only allows a magistrate to divide attorney fees among medical providers when the magistrate has ordered direct payment for medical expenses from the employer to those providers.

KELLY, C.J.

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PETERSEN v. TIG BCN TIG BCN (2009)

Docket No: Docket Nos. 136542, 136543.

Decided: July 31, 2009

Court: Supreme Court of Michigan.

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PETERSEN v. TIG BCN TIG BCN (2009)

Supreme Court of Michigan.

Docket Nos. 136542, 136543.

Decided: July 31, 2009

Welcome to FindLaw's Cases & Codes

PETERSEN v. TIG BCN TIG BCN (2009)

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