Brackett v. FOCUS HOPE AND ACCIDENT FUND INSURANCE COMPANY OF AMERICA

756 N.W.2d 70 (2008) Patricia D. BRACKETT, Plaintiff-Appellee, v. FOCUS HOPE AND ACCIDENT FUND INSURANCE COMPANY OF AMERICA, Defendants-Appellants. Docket No. 135375. COA No. 274078. Supreme Court of Michigan. September 26, 2008. Order On order of the Court, the motion for rehearing is considered, and it is DENIED. MICHAEL F. CAVANAGH, J. (dissenting). I would grant rehearing and, on rehearing, would reverse this Court's July 30, 2008, decision because defendant has failed to offer any evidence that the work rule in question had been enforced. When seeking to avoid paying workers' compensation benefits to an employee because the employee violated a work rule, the employer *71 has the burden of proving that the work rule was "rigidly enforced." Allen v. Nat'l Twist Drill & Tool Co., 324 Mich. 660, 664, 37 N.W.2d 664 (1949). Although defendant showed that employees knew that the work rule was considered mandatory, defendant entirely failed to show any occurrence of actual enforcement of the rule except against plaintiff. Thus, defendant has failed to establish a defense under MCL 418.305. MARILYN J. KELLY, J., joins the statement of MICHAEL F. CAVANAGH, J. WEAVER, J. (dissenting). I dissent from the order denying plaintiff's motion for rehearing. I would grant rehearing for the reasons stated in my statement dissenting from the decision of the majority of four (Chief Justice Taylor and Justices Corrigan, Young, and Markman) to reverse the judgment of the Court of Appeals on the ground that the plaintiff's refusal to attend a mandatory employee event constituted "intentional and wilful misconduct" under MCL 418.305, thereby barring her recovery of benefits under the Worker's Disability Compensation Act, MCL 418.101 et seq. For my reasons in detail, see my dissenting statement in Brackett v. Focus Hope, 482 Mich 269, 753 N.W.2d 207, 216 (2008).