Fleischfresser v. PETERSON TOWING, INC.

740 N.W.2d 237 (2007) Ronald FLEISCHFRESSER (Deceased), by Joyce Wilkins Fleischfresser (Surviving Spouse), Plaintiff-Appellant, v. PETERSON TOWING, INC., Highland Insurance Group, and Northwestern National Casualty Company, Defendants-Appellees. Docket No. 133730. COA No. 274353. Supreme Court of Michigan. October 26, 2007. On order of the Court, the application for leave to appeal the March 16, 2007 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. MARKMAN, J., concurs and states as follows: I reluctantly concur in the Court's decision. I concur because it is in accord with this Court's decision in Day v. W A Foote Mem. Hosp., 412 Mich. 698, 316 N.W.2d 712 (1982), and that decision has not been challenged. I concur reluctantly because the result of Day is that the case-law in our state now bears no relationship to the statutory law. Whereas the Legislature in enacting MCL 418.331 specified that a person in claimant's position (a deserted wife) *238 should, for purposes of workers' compensation survivor benefits be "conclusively presumed to be wholly dependent for support upon a deceased employee," Day has nullified this presumption and substituted a case-by-case factual determination. Claimant likely would have been entitled to survivor benefits under the statute enacted by the Legislature, but not under the present judicially-rewritten statute. While I agree with Day that the United States Supreme Court's decision in Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142, 100 S.Ct. 1540, 64 L.Ed.2d 107 (1980), is controlling and requires that MCL 418.331 be held violative of the Equal Protection Clause, I do not believe that this Court had, as it asserted in Day, a choice to determine "the appropriate remedy for this unconstitutional gender-based presumption: invalidation, extension to widowers, or preservation of the statute for a short period of time to enable the Legislature to forge its own solution." Day, supra at 703, 316 N.W.2d 712. Rather, this Court had only one proper option in light of Wengler and that was to strike down MCL 418.331 as unconstitutional and leave it to the Legislature to enact a different and constitutionally-valid provision if it chose to do so. See North Ottawa Hosp. v. Kieft, 457 Mich. 394, 408 n. 14, 578 N.W.2d 267 (1998) (rejecting the approach of Day and instead "await[ing] the judgment of the Legislature regarding which is the better policy for the state to adopt" in the wake of an equal protection violation). This Court does not have the authority to rewrite a statute, even if it does so wisely. MICHAEL F. CAVANAGH, WEAVER, and MARILYN J. KELLY, JJ., would remand this case to the Court of Appeals as on leave granted.