ONDRUS v. CITIZENS INSURANCE COMPANY, 486 Mich. 924 (2010)

ONDRUS v. CITIZENS INSURANCE COMPANY.

No. 140359.Supreme Court of Michigan.
May 21, 2010.

Court of Appeals No. 293373.

Leave to Appeal Denied.

KELLY, C.J. (concurring)

I concur with the Court’s order denying defendant’s interlocutory application for leave to appeal. I write separately to briefly address Justice MARKMAN’S dissenting statement.

Justice MARKMAN believes that “the trial court’s analysis was based exclusively upon plaintiffs claims and assertions without any independent determination concerning whether class certification prerequisites were met.” Yet, Judge Maceroni noted in his opinion, not once but twice, that he had reviewed both parties’ arguments regarding class certification. He stated: “The Court has reviewed the parties’ arguments, pro and con for class certification. Both parties raise meritable [sic] arguments in support of their respective positions.”

Judge Maceroni subsequently analyzed each of the requirements for class certification set forth in MCR 3.501. He noted that the burden is on the plaintiff to show that the requirements for class certification are met. After thoroughly analyzing each of the requirements, Judge Maceroni concluded, “In sum, although both parties have submitted well-prepared briefs to support their positions, the Court finds Plaintiffs arguments persuasive. Plaintiff has established that all burdens under MCR 3.501 are met satisfactorily for class action certification.”

Unlike Justice MARKMAN, I believe that Judge Maceroni’s opinion explicitly and independently analyzed whether the prerequisites for class certification were satisfied, and he used the appropriate legal rubric. Therefore, I cannot see a reason to remand this case to the trial court for further proceedings as suggested by Justice MARKMAN.

Page 925

MARKMAN, J. (dissenting).

I respectfully dissent from this Court’s denial of leave to appeal in this class action because the class was not certified in accordance with Henry v Dow Chemical Co., 484 Mich 483 (2009). In Henry, this Court held that “[a] court may base its decision on the pleadings alone only if
the pleadings set forth sufficient information to satisfy the court that each prerequisite is in fact met.” Id.
at 502. In the instant case, although Chief Justice Kelly places much weight on the fact that the parties prepared briefs that the trial court considered, the fact remains that, contrary t Henry, the trial court stated that it was “required to accept the allegations made in support of the request for certification as true,” and it appears that the trial court’s analysis was based exclusively upon plaintiffs claims and assertions without any independent determination concerning whether class certification pre-requisites were met. Therefore, I would remand this case to the trial court for class certification proceedings consistent with Henry.

CORRIGAN and YOUNG, JJ., join the statement of MARKMAN, J.