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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

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Suspense builds as the end of the Michigan Supreme Court’s 2023-2024 term approaches quickly, with scores of argued appeals still unresolved. The 40 civil appeals that remain undecided reveal interesting trends in the court’s docket. This term, the court showed a keen interest in three areas of law: employment, no-fault insurance and COVID-19. The unusually large number of oral arguments on these issues arise from the usual diet of state law questions — both common law and statutory — but they are peppered with monumental questions of legislative power, judicial power and public policy, all of which are of great import to a broad swath of businesses and Michigan residents.

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The Michigan Supreme Court heard mini oral arguments in three cases involving the enforceability of provisions that are commonly included in employment contracts — arbitration clauses and claim limitation periods. First, in Saidizand v. GoJet Airlines, LLC, the court heard arguments on whether an agreement to arbitrate all claims that arise out of employment can be applied to discrimination claims under the Elliott-Larsen Civil Rights Act (ELCRA). Second, in Rayford v. American House Roseville I, LLC, the court heard arguments on whether an employer can contractually limit the time for an employee to bring a civil rights claim. Last, in Adilovic v. Monroe, LLC, the court heard arguments on whether a contractually imposed limitation period is enforceable against a claim under the Worker’s Disability Compensation Act (WDCA). The court recently pushed off its decision in all three cases; it granted the Rayford appellants leave to appeal (another round of briefing and oral argument) and suspended the Saidizand and Adilovic cases pending a decision in Rayford. These cases come amidst increased skepticism of employment contracts nationally, as evidenced by the Federal Trade Commission’s (FTC) recent rule banning non-compete provisions in employment contracts. In 2023, Michigan Attorney General, Dana Nessel, signed on to a letter in support of the rule.

We also expect to see opinions soon in two other employment-related cases: Stegall v. Resource Technology Corp. and Mothering Justice v. Attorney General.

In Stegall, the court will decide if a former employee can sue for retaliatory discharge in violation of public policy when he was fired after filing a complaint under the Michigan Occupational Safety and Health Act (MIOSHA) or whether the Whistleblower Protection Act preempts that common law claim. If the court sides with the employer, terminated employees will have to seek administrative enforcement rather than going to court, will have to file their complaint within a 30-day statutory limitation and will not be able to obtain non-economic damages.

Mothering Justice is perhaps the “mother” of all employment cases this term. The legal issue is one of constitutional legislative power — not employment law — but the effect of the court’s decision — if it denies the legislative power — could change the landscape of employee compensation for Michigan. The court will decide if the legislature has the power to enact a law proposed in a ballot initiative and then amend that law in the same session. In this case, the two ballot initiatives proposed to raise the minimum hourly wage and earned sick time benefits for employees. The legislature’s amendments delayed the increase in the minimum wage until 2030 and limited the permitted uses of and the required amount of paid sick leave. If the court decides the amendments are invalid, it must then decide what the remedy should be and whether the change in law will be retroactive. (Disclosure: Warner Norcross + Judd LLP represented the Michigan Manufacturers Association as an amicus in briefing and oral argument in Mothering Justice.)

Remarkably, the court heard eight arguments this term involving various provisions of Michigan’s new No-fault Insurance law, a more than two-fold increase over last term. This increase in case load and in the court’s attention to this area can be largely attributed to the legislature’s significant amendments to Michigan’s No-fault Insurance regime in 2019. In two key cases this term, the court will decide how some of these amendments operate.

One effect of the statutory amendments was to increase the default minimum bodily injury liability coverage from $20,000 per person and $40,000 per accident to $250,000 per person and $500,000 per accident. In Progressive Marathon Insurance Co. v. Pena, the court will decide whether personal injury protection policies that were issued before this change and provide the previous minimum now provide the increased minimum coverage by force of law.

Another statutory amendment provided insurers the ability to review health care providers’ charges and allowed health care providers to appeal the insurers’ review determinations to the Department of Insurance and Financial Services. In True Care Physical Therapy, PLLC v. Auto Club Insurance Co., the court will decide whether this review process is the only avenue for a health care provider to dispute insurers’ determinations or if it can continue to file lawsuits under MCL 500.3112 as was done prior to the amendments.

This term, the court has five pending appeals involving disputes that arose from emergency actions during the COVID-19 pandemic.

In the first case, Zwiker v. Lake Superior State University, the court will decide whether students at universities that transitioned to online learning during the pandemic are entitled to reimbursement of tuition and fees.

In two more cases, Carter v. DTN Management Co. and Armijo v. Bronson Methodist Hospital, the court will decide whether it had the power to impose an emergency “pause” on statutory time limitations for bringing claims. During the COVID-19 pandemic, the court issued Administrative Order Nos. 2020-3 and 2020-18, which ordered that days during Governor Gretchen Whitmer’s state of emergency declaration were not to be included when calculating statutory time limitations. In these cases, the court will decide if they had the authority to issue these orders or not, and if not, whether they should (and can) allow cases that would be time-barred to go forward anyway as a matter of equity.

In the final two cases, Mount Clemens Recreational Bowl, Inc. v. Director of Department of Health and Human Services and Gym 24/7 Fitness, LLC v. Michigan, the court will decide whether closures and restrictions on fitness centers, bars and restaurants constitute takings of their property under the United States and Michigan Constitutions, which would require the government to pay the businesses “just compensation.”

In these cases, the court will address the actions of different entities in different contexts, but in all of them, it will decide who should bear the losses of emergency actions taken during the COVID-19 pandemic. In Zwiker – should the students or the universities? In Carter – should the plaintiffs or defendants? In Gym 24/7 – should the government or the businesses?

These cases come at a time when the effects of the COVID-19 pandemic are greatly diminished and public concern is nearly nonexistent. Unlike the court’s decisions regarding government power made during the apex of the pandemic, this series of cases represents the after-the-fact ‘sorting out’ of the consequences from emergency actions. By taking these cases, the court may be looking to set out some ground rules for both public and private parties to follow when taking emergency actions in the future.

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A special thanks to Caed M. Budris, law student at the University of Wisconsin, for his enormous contributions to this article.

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Trends in the Term: Pending Decisions Distinguishing the Michigan Supreme Court’s 2023-2024 Civil Docket

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Trends in the Term: Pending Decisions Distinguishing the Michigan Supreme Court’s 2023-2024 Civil Docket

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