MARKMAN, J. (dissenting).

I respectfully dissent from the majority's decision to overrule Kreiner v Fischer, 471 Mich 109; 683 NW2d 611 (2004). The no-fault automobile insurance act, in MCL 500.3135(1), provides that "[a] person remains subject to tort liability for noneconomic loss caused by his or her ownership, maintenance, or use of a motor vehicle only if the injured person has suffered death, serious impairment of body function, or permanent serious disfigurement." The issue here is whether plaintiff has suffered a serious impairment of body function. "`[S]erious impairment of body function' means an objectively manifested impairment of an important body function that affects the person's general ability to lead his or her normal life." MCL 500.3135(7).

In Kreiner, 471 Mich at 132-133, this Court held that in determining whether an impairment affects the plaintiffs general ability to lead his normal life, "a court should engage in a multifaceted inquiry, comparing the plaintiffs life before and after the accident as well as the significance of any affected aspects on the course of the plaintiffs overall life." In addition, Kreiner indicated that certain factors, such as the duration of the impairment, may be of assistance in evaluating whether the plaintiffs general ability to lead his normal life has been affected. Id. at 133.

The majority overrules Kreiner, rejecting these factors and holding that temporal considerations are wholly or largely irrelevant in determining whether an impairment affects the plaintiffs general ability to lead his normal life. The majority instead holds that, as long as the plaintiffs general ability to lead his normal life has been affected, apparently for even a single moment in time, the plaintiff has suffered a "serious impairment of body function." This conclusion is at odds with the actual language of the no-fault automobile act and nullifies the legislative compromise embodied in that act. I continue to believe that Kreiner was correctly decided, and that temporal considerations are highly relevant — indeed necessary — in determining whether an impairment affects the plaintiffs general ability to lead his normal life. By nullifying the legislative compromise, which was grounded in concerns over excessive litigation, the over-compensation of minor injuries, and the availability of affordable insurance, the Court's decision today will resurrect a legal environment in which each of these hazards reappears and threatens the continued fiscal integrity of our no-fault system.

Because I do not believe that the lower courts erred in concluding that plaintiff in this case has not suffered a serious impairment of body function, I would affirm the judgment of the Court of Appeals.

I. FACTS AND HISTORY

Because the majority opinion provides only a cursory presentation of the facts, in a case requiring a fact-intensive analysis, I find it necessary to set forth a more thorough discussion of these facts. Beginning in August 2002, plaintiff was employed by Allied Systems, and over the years, he has held various positions with the company On January 17, 2005, approximately six months after beginning his position as a medium-duty truck loader, plaintiff was struck by a truck driven by plaintiffs co-worker and co-defendant, Larry Carrier, while shuttling vehicles at a General Motors plant. Plaintiff was knocked down, and the wheels of the truck ran over his left ankle, fracturing his medial malleolus. Plaintiff was immediately taken to the hospital and was released that same day. Two days later, he underwent surgery for the implantation of a device to stabilize his ankle fracture. Immediately following surgery, plaintiff was on crutches and in a boot for approximately four weeks and, during this time, he was restricted from bearing weight on his left leg. Additionally, plaintiff underwent physical therapy

On October 21, 2005, plaintiff again underwent surgery on his ankle, this time to remove the implanted device. The surgeon reported that plaintiffs ankle had "healed nicely." On November 5, 2005, at the request of Allied, plaintiff was examined by Dr. Paul Drouillard, who stated that plaintiff could return to work with restrictions of no prolonged standing or walking for three weeks, after which time plaintiff could return to work with no restrictions. On November 17, 2005, plaintiff was examined by had surgeon, who observed that plaintiffs "wound is healed very nicely" and that plaintiff "needs to be in seated work for approximately six weeks."

On January 12, 2006, plaintiffs surgeon examined him and cleared him to return to work with no restrictions. At this examination, plaintiff reported to his surgeon that "[h]is medial malleolus is not giving him any pain." The surgeon observed that plaintiff had an "excellent range of motion with no specific tenderness." Upon returning to work for several days, however, plaintiff indicated that performing the physical tasks that his job required, such as walking, climbing, and crouching, caused his ankle to hurt. After plaintiffs request for a different assignment was denied, plaintiff went back on workers' compensation.

On March 16, 2006, Allied required plaintiff to undergo a functional capacity evaluation (FCE), which showed that plaintiff could not fully perform all of his previous job duties. During this evaluation, when asked what his goal was in returning to work, plaintiff responded, "I don't want to go back to work; there is talk about a buyout and I think I want to do that." Plaintiff also reported that his ankle pain was 3 on a scale of zero to 10, with 10 being the highest.

On May 31, 2006, Dr. Drouillard again examined plaintiff, at the request of Allied. Dr. Drouillard found no objective abnormality to correspond to plaintiffs complaints and opined that plaintiff was magnifying-his symptoms. Dr. Drouillard also observed that, although plaintiff claimed that he had been wearing an ankle brace for the last two weeks, the tan lines on plaintiffs left and right feet were symmetrical, consistent with wearing flip-flops, with no break in his tan lines to indicate that he had been wearing the brace at all. Dr. Drouillard believed that plaintiff could return to work unrestricted and that plaintiffs ankle required no further treatment.

On June 12, 2006, plaintiff underwent an MRI test; the physiatrist who reviewed the MRI and performed a follow-up examination found that there was some evidence of ligamentous injury, but he did not establish a plan to decrease plaintiffs pain because there was little the physiatrist could do. At this examination, plaintiff reported that his pain was 6 on a scale of zero to 10, that the pain was worse with "any movement," and that nothing alleviated that pain. On June 20, 2006, Dr. Drouillard reviewed the MRI results and found that plaintiffs ankle had healed well and that his opinion from May 31, 2006, had not changed.

Shortly thereafter, plaintiffs workers' compensation benefits were terminated. At this point, plaintiff sought another FCE so that he could return to work. On August 1, 2006, the FCE indicated that plaintiff was able to perform essential job demands without restriction. At this FCE, plaintiff reported that he experienced "occasional aching" in his ankle, and that there were no "activities that aggravated his symptoms in the left ankle (including prolonged standing, prolonged walking)." Plaintiff reported that his pain level was 2 on a scale of zero to 10 and, during the two weeks immediaitely preceding the FCE, his highest pain level had been 3 and his lowest pain level had been 1. By the completion of the FCE, plaintiff reported his pain level as zero. On August 16, 2006, approximately 17 months after the accident, plaintiff returned to work and Allied assigned him to a new job with different physical requirements, and with no reduction in pay. Plaintiff volunteered to be assigned to this other job, and has been able to perform his new job duties since that time.

During his recuperation, plaintiff did not require any assistance with normal household tasks. Additionally, he was able to drive and his injuries have not affected his relationship with his wife in any way. Outside of work, plaintiff was able to engage in most of the activities in which he had engaged before his injury, such as fishing. Importantly, by plaintiffs own admission at his deposition in October 2006, his life was "normal" despite some "occasional aching."

On March 24, 2006, plaintiff filed a third-party action against Carrier (the driver of the truck) and General Motors Corporation (GM). Carrier was later released by stipulation of the parties, and the trial court granted GM's motion for summary disposition, finding that plaintiff had undergone a relatively good recovery and could not meet the "serious impairment of body function" threshold.

The Court of Appeals affirmed, with one judge dissenting, concluding that the impairment did not affect plaintiffs general ability to lead his normal life. McCormick v Carrier, unpublished opinion per curiam of the Court of Appeals, issued March 25, 2008 (Docket No. 275888). The majority cited various facts to support its conclusion, such as plaintiffs golfing, fishing, driving, caring for himself, and returning to work without restriction. The dissent would have reversed for two reasons: first, on the basis that plaintiffs entire life, including the possibility of future problems, must be considered; and, second, on the basis that there was evidence to indicate that plaintiffs life was not currently normal. The evidence that the dissent relied on to reach this conclusion was that plaintiff was assigned to a job with reduced physical requirements and the doctors had identified "some indication of degenerative joint disease in [plaintiffs] ankle." Id., unpub op at 2 (DAVIS, J., dissenting).

On October 22, 2008, this Court denied plaintiffs application for leave to appeal, although Chief Justice KELLY and Justices CAVANAGH and WEAVER would have granted leave to appeal. 482 Mich 1018 (2008). However, after the composition of this Court changed when Justice HATHAWAY replaced former Chief Justice TAYLOR on January 1, 2009, this Court granted plaintiffs motion for reconsideration, even though such motion had not raised any new legal arguments. 485 Mich 851 (2009).

II. STANDARD OF REVIEW

This case presents issues of statutory interpretation, which this Court reviews de novo. Dep't of Transp v Tompkins, 481 Mich 184, 190; 749 NW2d 716 (2008). We also review rulings on motions for summary disposition de novo. Spiek v Dep't of Transp, 456 Mich 331, 337; 572 NW2d 201 (1998).

III. ANALYSIS A. HISTORY OF NO-FAULT INSURANCE ACT

In Michigan, before the enactment of the no-fault insurance act, the only available recourse to victims of motor vehicle accidents seeking to recover damages was to file a common-law tort action. "[U]nder [this] tort liability system [,] the doctrine of contributory negligence denied benefits to a high percentage of motor vehicle accident victims, minor injuries were overcompensated, serious injuries were undercompensated, long payment delays were commonplace, the court system was overburdened, and those with low income and little education suffered discrimination." Shavers v Attorney General, 402 Mich 554, 579; 267 NW2d 72 (1978). In response to these deficiencies, the Legislature enacted the no-fault automobile insurance act, MCL 500.3101 et seq., effective March 30, 1973. The primary goal of the no-fault act is "to provide victims of motor vehicle accidents assured, adequate, and prompt reparation for certain economic losses." Shavers, 402 Mich at 579. In order to meet this objective, the Legislature decided to make no-fault insurance compulsory, i.e., "whereby every Michigan motorist would be required to purchase no-fault insurance or be unable to operate a motor vehicle legally in this state." Id. In addition, "[i]n exchange for the payment of. . . no-fault economic loss benefits from one's own insurance company, the Legislature limited an injured person's ability to sue a negligent operator or owner of a motor vehicle for bodily injuries." Kreiner, 741 Mich at 115. That is, with the enactment of the no-fault act, "the Legislature abolished tort liability generally in motor vehicle accident cases and replaced it with a regime that established that a person injured in such an accident is entitled to certain economic compensation from his own insurance company regardless of fault." Id. at 114. In exchange for economic loss benefits regardless of fault, "the Legislature significantly limited the injured person's ability to sue a third party for noneconomic damages, e.g., pain and suffering." Id. at 115. More specifically, no tort suit against a third party for non-economic damages is permitted unless the injured person "has suffered death, serious impairment of body function, or permanent serious disfigurement." MCL 500.3135(1).

The Legislature did not initially define the language that is in dispute in this case" "serious impairment of body function" "and this Court itself struggled in the process of giving reasonable meaning to this language. In Advisory Opinion re Constitutionality of 1972 PA 294 , 389 Mich 441, 481; 208 NW2d 469 (1973), we held that whether the plaintiff has suffered a "serious impairment of body function" is "within the province of the trier of fact. . . ." However, in Cassidy v McGovern, 415 Mich 483; 330 NW2d 22 (1982), noting that an advisory opinion "`is not precedentially binding in the same sense as a decision of the Court after a hearing on the merits,'" id. at 495 (citation omitted), this Court held:

[W]hen there is no factual dispute regarding the nature and extent of a plaintiffs injuries, the question of serious impairment of body function shall be decided as a matter of law by the court. Likewise, if there is a factual dispute as to the nature and extent of a plaintiffs injuries, but the dispute is not material to the determination whether plaintiff has suffered a serious impairment of body function, the court shall rule as a matter of law whether the threshold requirement. . . has been met. [ Id. at 502]

In addition, Cassidy held that the phrase "serious impairment of body function" refers to "objectively manifested injuries" that impair "important body functions." Id. at 504-505. Cassidy also held that "the Legislature intended an objective standard that looks to the effect of an injury on the person's general ability to live a normal life." Id. at 505. Finally, Cassidy held that although "an injury need not be permanent to be serious," "[p]ermanency is, nevertheless, relevant" because "[t]wo injuries identical except that one is permanent do differ in seriousness." Id. at 505-506.

However, only four years later, in DiFranco v Pickard, 427 Mich 32; 398 NW2d 896 (1986), this Court overruled Cassidy. DiFranco held that "[i]f reasonable minds can differ as to whether the plaintiff suffered a serious impairment of body function, the issue must be submitted to the jury, even if the evidentiary facts are undisputed." Id. at 58. In addition, DiFranco held that the "impairment need not be of. . . an important body function," and it is unnecessary to look to the effect of the injury on the person's "`general ability to live a normal life. `" Id. at 39. DiFranco also held that, although the plaintiff must prove a "medically identifiable injury," this can be done on the basis of "the plaintiffs subjective complaints or the symptoms of an injury." Id. at 75. Finally, DiFranco held that the following factors should be considered when determining whether the impairment was serious:

The extent of the impairment, the particular body function impaired, the length of time the impairment lasted, the treatment required to correct the impairment, and any other relevant factors. [ Id. at 69-70.]

In 1995, the Legislature amended the no-fault act. In particular, it amended MCL 500.3135(2)(a), which provides:

The issues of whether an injured person has suffered serious impairment of body function or permanent serious disfigurement are questions of law for the court if the court finds either of the following:

( i) There is no factual dispute concerning the nature and extent of the person's injuries.

( ii) There is a factual dispute concerning the nature and extent of the person's injuries, but the dispute is not material to the determination as to whether the person has suffered a serious impairment of body function or permanent serious disfigurement.

In addition, the Legislature defined "serious impairment of body function" to mean "an objectively manifested impairment of an important body function that affects the person's general ability to lead his or her normal life." MCL 500.3135(7). In other words, the Legislature essentially rejected DiFranco and, with one exception, codified Cassidy.

B. KREINER v FISCHER

In Kreiner, this Court for the first time interpreted the Legislature's definition of "serious impairment of body function." Because "generally" means "`for the most part,'" Kreiner held that "determining whether a plaintiff is `generally able' to lead his normal life requires considering whether the plaintiff is, `for the most part' able to lead his normal life." Kreiner, 471 Mich at 130, quoting Random House Webster's College Dictionary (1991). In addition, because "lead" means "`to conduct or bring in a particular course,'" Kreiner held that "the effect of the impairment on the course of a plaintiffs entire normal life must be considered." Id. at 130-131, quoting Random House Webster's Un-abridged Dictionary (2001). Therefore, Kreiner concluded,

[a]lthough some aspects of a plaintiffs entire normal life may be interrupted by the impairment, if, despite those impingements, the course or trajectory of the plaintiffs normal life has not been affected, then the plaintiffs "general ability" to lead his normal life has not been affected and he does not meet the "serious impairment of body function" threshold." [ Id. at 131.]

"(a) the nature and extent of the impairment, (b) the type and length of treatment required, (c) the duration of the impairment, (d) the extent of any residual impairment, and (e) the prognosis for eventual recovery. [ Id. at 133.]

Although the dissent in Kreiner essentially agreed with the majority's analysis of the language "an objectively manifested impairment of an important body function," it disagreed with the majority's analysis of the language "that affects the person's general ability to lead his or her normal life." Most significantly in this regard, the dissent rejected the factors set forth by the majority on the basis that "time or temporal considerations" are inappropriate considerations. Id. at 147 (CAVANAGH, J., dissenting).

C. MAJORITY'S NEW TEST

It is appropriate that Justice CAVANAGH, the authoring justice of the majority opinion in DiFranco, which was rejected by the Legislature, and also the authoring justice of the dissent in Kreiner, which was rejected by this Court, is now the authoring justice of the majority opinion, in which Kreiner is overruled. While to some there may be a sense of justice, or at least a sense of irony, in this sequence of events, to others, including those of us in dissent in this case, such sequence embodies all that is wrong when a judiciary confuses its own preferences with those of the people's representatives in the Legislature. While it is intriguing that Justice CAVANAGH now is able to transform his dissent in Kreiner into a majority opinion, and thereby resuscitate his earlier opinion in DiFranco, this has been achieved only after the people of this state, through their Legislature, have made clear that DiFranco did not reflect what ought to be the policy of this state. Therefore, just as he did in his dissent in Kreiner, Justice CAVANAGH, now with majority support, rejects Kreiner's analysis of the language "that affects the person's general ability to lead his or her normal life." The worm has turned, and never mind what the people and their Legislature have sought to accomplish in establishing as the law.

Before proceeding too far into where our substantive disagreements lie, I would be remiss not to point out where we are in agreement. First, the majority, just as did the Kreiner dissent, largely agrees with Kreiner's, analysis of MCL 500.3135(2)(a), i.e., if there is no material factual dispute, whether a person has suffered a serious impairment of body function should be determined by the court as a matter of law The majority also largely agrees with Kreiner's analysis of the language "an objectively manifested impairment of an important body function." In addition, the majority agrees with Kreiner's conclusion that the serious impairment of body function threshold entails a subjective analysis, i.e., "[w]hether an impairment that precludes a person from throwing a ninety-five miles-an-hour fastball is a `serious impairment of body function' may depend on whether the person is a professional baseball player or an accountant who likes to play catch with his son every once in a while." Kreiner, 471 Mich at 134 n. The majority also agrees with Kreiner's conclusion that determining whether a plaintiffs general ability to lead his or her normal life has been affected "necessarily requires a comparison of the plaintiffs life before and after the incident."19 Finally, the majority agrees with Kreiner's conclusion that permanency is not required.

1. DiFRANCO VERSUS CASSIDY

However, this is where our agreements end. First, the majority takes issue with Kreiner's statement that "the Legislature largely rejected DiFranco in favor of Cassidy." Kreiner, 471 Mich at 121 n 8. As explained earlier, the Legislature adopted Cassidy with a single exception. That single exception pertains to the fact that Cassidy, 415 Mich at 505, required an evaluation of "the effect of an injury on the person's general ability to live- a normal life," while MCL 500.3135(7) requires an evaluation of the effect of an injury on "the person's general ability to lead his or her normal life." (Emphasis added.) That is, while the Cassidy test was entirely objective, the MCL 500.3135(7) test is at least partially subjective. As this Court explained in Kreiner, 471 Mich at 121 n 7:

[T]he Legislature modified the entirely objective Cassidy standard to a partially objective and partially subjective inquiry. Thus, what is "normal" is to be determined subjectively on the basis of the plaintiff's own life and not the life of some objective third party. However, once that is fixed as the base, it is to be objectively determined whether the impairment in fact affects the plaintiffs "general ability to lead" that life.

Nevertheless, given that: (a) Cassidy, 415 Mich at 505, held that courts should "look[] to the effect of an injury on the person's general ability to live a normal life"; (b) DiFranco, 427 Mich at 39, held that courts should not look to the effect of the injury on the person's "`general ability to live a normal life' "; and (c) the Legislature subsequently and affirmatively directed the courts to look to the effect of an injury on "the person's general ability to lead his or her normal life," MCL 500.3135(7), the Legislature obviously preferred the policy of Cassidy to that of DiFranco. In addition, in contrast to DiFranco, and consistent with Cassidy, the Legislature expressly adopted an "important body function" requirement, MCL 500.3135(7), and amended MCL 500.3135 to make clear that whether a serious impairment of body function has occurred is a question of law unless there is a material factual dispute. MCL 500.3135(2)(a). Thus, contrary to the majority's understandably defensive posture, it is hardly an "oversimplification" to conclude that the Legislature essentially rejected DiFranco in favor of Cassidy.

Moreover, the Legislature's action of amending MCL 500.3135 following DiFranco is an example of legislative history that has genuine utility in the interpretative process. This Court has emphasized that "not all legislative history is of equal value," and has specifically noted that "[c]learly of the highest quality is legislative history that relates to an action of the Legislature from which a court may draw reasonable inferences about the Legislature's! intent. . . . " In re Certified Question, 468 Mich 109, 115 n 5; 659 NW2d 597 (2003). The instant case presents an ideal "[e]xample[] of legitimate legislative history," i.e., the recitation of "actions of the Legislature intended to repudiate the judicial construction of a statute. . . ." Id. And yet, not altogether inexplicably, the majority entirely disregards these legislative actions.

Defendant and the Attorney General as amicus curiae have presented the Court with legislative analyses, committee reports, and other materials to support their argument that, in enacting the amendments, the Legislature intended to repudiate DiFranco and restore Cassidy, just as Kreiner held. Even the most cursory review of these documents demonstrates that defendant and the Attorney General's reading has merit. For example, the original draft of House Bill 4341 was accompanied by a memorandum from its sponsor that stated that the bill's first goal was to "[reestablish the two-part Cassidy standard of: (1) definition of `serious impairment of body function,' and (2) make the determination of whether an injury is a serious impairment of body function a question of law (judge) rather than of fact (jury)." Memorandum of Representative Harold J. Voorhees, enclosing the original draft of HB 4341 as introduced, February 8, 1995, available in defendant's appendix on appeal, p 8b. Similarly, the House legislative analysis expressly set forth the chronology of Cassidy and DiFranco, noting that DiFranco had "rejected" Cassidy and that the bill "would return to a tort threshold resembling that provided by the Cassidy ruling . . . ."House Legislative Analysis, HB 4341, December 18, 1995. The analysis provided to the Senate Financial Services Committee likewise explained in the first sentence of the bill's description that it "would put into law the Cassidy standards for meeting the serious impairment of body function threshold." Department of Commerce Bill Analysis of HB 4341, February 14, 1995. And finally, it is apparent from the statements of protest of the bill's opponents that they also clearly understood House Bill 4341 to be a "return to the Cassidy standard . . . ."Statement of Senator Henry E. Stallings II, 1995 Journal of the Senate 1784 (October 12, 1995); see also statement of Senator John D. Cherry, Jr., id. at 1785.

While on several occasions I have explained why I do not find all forms of legislative history to be useful tools in the interpretative process, see, e.g., Petersen v Magna Corp, 484 Mich 300, 381-382; 773 NW2d 564 (2009) (MARKMAN, J., dissenting), the author of the majority opinion has never questioned their utility. Thus, there is no apparent reason why the majority "turn[s] a blind eye to the wealth of extrinsic information available" on the history of the 1995 amendments. Nat'l Pride at Work, Inc v Governor, 481 Mich 56, 95 n 34; 748 NW2d 524 (2008) (KELLY, J., dissenting). Rather, the only, quite obvious explanation for the majority's selective silence is that it can find nothing in this "wealth of extrinsic information available" to support its interpretation. One of the most common and compelling critiques of the use of legislative history is that a judge can almost always find something in the legislative history to support the interpretation he personally wishes to give to a law. To borrow an analogy invoked by United States Supreme Court Justice Antonin Scalia, using legislative history is like entering a room, looking over the assembled multitudes in the crowd, and picking out your friends. See Scalia, A Matter of Interpretation (Princeton, NJ: Princeton University Press, 1997), p 36. In its near silence, the majority places a new twist on this analogy, and illustrates another fundamental problem with the use of legislative history. Here, the majority enters a room and, finding no friends in sight, makes a quick exit. Considering the quality and quantity of the legislative history available here, the majority's "quick exit" and its selective silence on the subject speaks volumes. It should not go unremarked that it is this dissent that cites legislative history — albeit a uniquely persuasive and bona fide form of legislative history — as a relevant factor in interpreting MCL 500.3135, while the justices of the majority, the supposed advocates of this mode of interpretation, exclude this from their consideration. Apparently, legislative history is to be considered when it supports a justice's preferred interpretation, and ignored when it does not.

Indeed, the problem with this approach of sometimes relying on legislative history and sometimes not is, as I explained in my dissent in Petersen, 484 Mich at 381-382, that

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 [majority's] approach . . ., 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 [majority] would substitute rules to be determined later. [Emphasis in the original.]

2. "TRAJECTORY" AND "ENTIRE"

Next, the majority peremptorily rejects Kreiner's use of the words "trajectory" and "entire." Again, the pertinent statutory language being defined here is, "that affects the person's general ability to lead his or her normal life." MCL 500.3135(7). "Lead" is defined as "to conduct or bring . . . in a particular course," and, as the majority acknowledges, "`trajectory' is a synonym for `course'. . ."See Random House Webster's College Dictionary (1991). In addition, contrary to the majority's contention, Kreiner's use of the-word "entire" was not "created out of thin air . . . . "Instead, the use of the word "entire" derived from the Legislature's use of the word "general" because "in general" means "with respect to the entirety." Random House Webster's College Dictionary (1991) (emphasis added). More accurately, it is the meaning that the majority gives to "general" that is "created out of thin air." The majority concludes that the word "general" means "some," even though the definition that the majority itself relies upon does not even include "some," but instead indicates that "general" means "whole," "every," "majority," "prevalent," "usually," "in most instances," "not limited," and "main features." Nowhere among these possible meanings can a reader sight the word "some."

3. TEMPORAL CONSIDERATIONS

Finally, the majority rejects the non-exhaustive list of factors that Kreiner set forth for consideration in evaluating whether the plaintiffs general ability to lead his normal life has been affected. The majority asserts that Kreiner "departed . . . from the statutory text, by providing an extra-textual `nonexhaustive list of objective factors' to be used to compare the plaintiff's pre-and post-incident lifestyle." This critique is quite surprising given that it is not uncommon for courts in general, and for this Court in particular, to provide "extra-textual" factors to be considered in interpreting a statute that demands a fact-specific analysis. To the best of my knowledge, members of this majority have never before complained about this practice, but consistency in the application and non-application of interpretative factors is hardly a preoccupation of this majority.

Indeed, in DiFranco itself, Justice CAVANAGH provided numerous "extra-textual" factors to be considered in determining whether a plaintiff has established a serious impairment of body function. DiFranco, 427 Mich at 69-70, states:

In determining whether the impairment of body function was serious, the jury should consider such factors as the extent of the impairment, the particular body function impaired, the length of time the impairment lasted, the treatment required to correct the impairment, and any other relevant factors.

Indeed, these "extra-textual" factors are remarkably similar to the Kreiner factors: "(a) the nature and extent of the impairment, (b) the type and length of treatment required, (c) the duration of the impairment, (d) the extent of any residual impairment, and (e) the prognosis for eventual recovery." Kreiner, 471 Mich at 133. It not clear why the authoring justice thought it acceptable to list "extra-textual" factors in DiFranco, but unacceptable to cite virtually the same factors in Kreiner. In addition, in Wexford Med Group v City of Cadillac, 474 Mich 192; 713 NW2d 734 (2006), he listed "extra-textual" factors a court should consider in determining whether an entity is a "charitable institution" and thus exempt from ad valorem property taxes. Also, in Chmielewski v Xermac, Inc, 457 Mich 593, 633; 580 NW2d 817 (1998), the Court considered the Handicapper's Civil Rights Act requirement that to be handicapped one must be "substantially limited in a major life activity." MCL 37.1103(e)(t)(A). Then-Justice KELLY, joined by Justice CAVANAGH, stated in dissent:

I would hold that the following factors should be considered to determine whether an individual is substantially limited in a major life activity: (1) the nature of the impairment, (2) its severity, (3) its duration or expected duration, and (4) its long-term effect. [ Chmielewski, 457 Mich at 633.]

See, also, Wood v Detroit Auto Inter-Ins Exch, 413 Mich 573; 321 NW2d 653' (1982), listing several "extra-textual" factors a court should consider in awarding "reasonable" attorney fees under MCL 500.3148(1); Workman v Detroit Auto Inter-Ins Exch, 404 Mich 477, 496-497; 274 NW2d 373 (1979), adopting a four-factor test to determine whether for purposes of the no-fault act a person is "domiciled in the same household" as a relative pursuant to MCL 500.3114; Stewart v Michigan, 471 Mich 692, 698-699; 692 NW2d 376 (2004), stating that "extra-textual" "factors such as the manner, location, and fashion in which a vehicle is parked" are material to determining whether the parked vehicle poses an unreasonable risk under MCL 500.3106(1); and Reed v Yackell, 473 Mich 520; 703 NW2d 1 (2005), utilizing an "extra-textual" multifactor economic-reality test to determine who is an employer for purposes of the Worker's Disability Compensation Act.

As should be readily apparent, the majority's claim that Kreiner erred by including "extra-textual" factors to consider in interpreting a statute is a wholly manufactured concern. The statute requires a fact-specific analysis. As Justice CAVANAGH'S DiFranco opinion and numerous other decisions of this Court have recognized, such factors assist courts in applying the statutory language on a case-by-case basis. To date, none of the members of the majority have objected to the inclusion of such factors in any other of this Court's decisions.

Nevertheless, the majority rejects Kreiner's "extra-textual" factors on the basis that they all "include a temporal component," reiterating the argument made by the Kreiner dissent that "the statute does not create an express temporal requirement as to how long an impairment must last. . . ." Ante at 203, 208; see also Kreiner, 471 Mich at 147. (CAVANAGH, J., dissenting) ("[T]he serious impairment of body function threshold does not suggest any sort of temporal limitation. . . . Therefore, the duration of the impairment is not an appropriate inquiry."). Indeed, the majority now holds that it is unnecessary to consider whether the impairment even " continues to affect [plaintiffs] general ability to lead his pre-incident `normal life' . . . ." (Emphasis added.)

The majority, not surprisingly, claims that this dissent mischaracterizes its holding when we conclude that temporal considerations are wholly or largely irrelevant in the majority's holding. Not only, as: explained above, is my characterization of their holding supported by the actual language of the majority opinion, but it is also dictated by simple logic. That is, given that the majority rejects Kreiner's factors because they all "include a temporal component," given that it feels passionately enough about this to write a lengthy opinion overruling Kreiner, and given that we can discern no other significant departure from Kreiner in the majority's new test than that of the temporal component, it is difficult to escape the conclusion we reach here, that the majority believes that temporal considerations are wholly or largely irrelevant.

I am reminded of a famous Sherlock Holmes line:

"How often have I said to you that when you have eliminated the impossible, whatever remains, however improbable, must be the truth?" [A. Conan Doyle, The Sign of the Four, from The Complete Sherlock Holmes (New York: Doubleday, 1890), ch 6, p 111.]

That is, given that the majority essentially agrees with everything in Kreiner but its temporal considerations, Kreiner's temporal considerations are all that remain as to our disagreement. Therefore, that the majority disagrees with Kreiner's temporal considerations, such as the duration of the impairment, "must be the truth." In other words, when comparing the Kreiner test and the majority's new test — whatever that is intended to be" the only apparent substantive difference is that, while Kreiner expressly includes temporal considerations, the majority's test does not. Given that the majority essentially agrees with everything in Kreiner but its temporal considerations, and given that the only reason it gives for rejecting these considerations is that they all "include a temporal component," how can we deduce anything other than that the majority holds that temporal considerations, such as the duration of the impairment, are irrelevant? Furthermore, if temporal considerations are not irrelevant, why does the majority not explain in what way these are relevant, or how, in fact, the majority views the relevancy of temporal considerations, and how these views differ from those expressed in Kreiner? This glaring void in explanation of its own test in the majority opinion can only be explained by the fact that the majority is holding that temporal considerations are wholly or largely irrelevant.

In sum, if temporal considerations are relevant: (1) why is the majority overruling Kreiner; (2) why does the majority reject Kreiner's factors, such as the duration of the impairment; (3) why does the majority not include temporal considerations within its new test; (4) why does the majority fail to explain the relevancy of temporal considerations; (5) why does the majority conclude that it is unnecessary to consider whether the impairment " continues to affect [plaintiffs] general ability to lead his pre-incident `normal life'"; and (6) perhaps most tellingly, why does not the majority clarify its position, whatever it may be, in light of this dissent? Simply saying that our conclusion is "erroneous" does not make it so, and, even more to the point, will hardly assist the bench and bar of this state in determining whether, and how, temporal considerations somehow remain relevant after today's decision.

For these reasons, we are unable to avoid the conclusion that the majority is, indeed, holding that temporal considerations are wholly or largely irrelevant, even though this "improbable" result constitutes a departure from Cassidy, DiFranco, and Kreiner, and makes utterly no sense. How can it possibly be determined whether an impairment "affects the person's general ability to lead his or her normal life" without taking into account temporal considerations? As Kreiner, 471 Mich at 133 n 18, inquired:

Does the dissent [now the majority] really believe that an impairment lasting only a few moments has the same effect on a person's "general ability to lead his or her normal life" as an impairment lasting several years or that an impairment requiring annual treatment has the same effect on a person's "general ability to lead his or her normal life" as an impairment requiring daily treatment?

Does the majority really believe that the Legislature intended for the serious impairment threshold to be met in every instance where an objectively manifested impairment of an important body function affected a person's ability to lead, his normal life for a mere moment in time? What if a person gets hit in the head and passes out for five minutes, but after those five minutes is completely unaffected by the impairment? If all temporal considerations are irrelevant, would not this person satisfy the majority's threshold, because his general ability to lead his normal life was certainly affected for those five minutes of un-consciousness? Under the majority's rule, it is' apparently irrelevant that the person arose after those five minutes and led a completely normal life thereafter. The majority asserts that all that matters is that for that moment in time, the person's general ability to lead his normal life had been affected. I am not sure that the majority's new threshold can even be called a "threshold" when it can be satisfied in virtually every automobile accident case that results in injury. As long as the plaintiff has suffered an objectively manifested impairment of an important body function, that plaintiff will have satisfied the majority's threshold, because the majority has essentially read the third criterion, i.e., "that affects the person's general ability to lead his or her normal life," out of the statute.

The clearest illustration' of the difficulty in determining whether an impairment "affects the person's general ability to lead his or her normal life" — without taking into account temporal considerations is the majority's own inability to do so. In determining whether the plaintiff in the instant case suffered an impairment that affects his general ability to lead his normal life, the majority itself repeatedly cites temporal considerations. For example, the majority indicates that "for a month after the incident, plaintiff could not bear weight on his left ankle"; "[h]e underwent two surgeries over a period of 10 months and multiple months of physical therapy"; "after the incident he was unable to perform functions necessary for his job for at least 14 months"; and "he did not return to work for 19 months." (Emphasis added.) Are such temporal considerations irrelevant or relevant? Do we interpret the words or the actions of the majority? And, if temporal considerations are irrelevant, how are we to determine whether an impairment affects a plaintiff's "general ability to lead his or her normal life"? The majority does not appear to know the answers, and it appears not to care that it does not know.

Indeed, under the majority's new threshold, it would seem that the moment the plaintiff in this case went to the emergency room and it was determined that he had broken his ankle, the threshold was met. For at that moment, plaintiff could not work. While at the emergency room, and for some measurable time afterwards, plaintiffs broken ankle affected not just some, but all of his capacity to live his normal life. Under the majority's non-temporal test, there is apparently no need to consider anything beyond the emergency room visit. If this reading of its decision is wrong, once again, the majority might wish to explain why this is so for the benefit of the bench, the bar, and the public.

In crafting its new threshold, the majority would also have been wise to consider the larger no-fault statute. Recall that the Legislature has decided that an injured plaintiff should only be allowed to sue to recover noneconomic damages resulting from an automobile accident where he or she has suffered: (a) death; (b) permanent serious disfigurement; or (c) serious impairment of body function. MCL 500.3135. It is well established that "`[w]hen construing a series of terms . . . we are guided by the principle that words grouped in a list should be given related meaning. `" In re Complaint of Rovas Against SBC Mich, 482 Mich 90, 114; 754 NW2d 259 (2008) (citation omitted). "In other words, this Court applies the doctrine of noscitur a sociis, which `stands for the principle that a word or phrase is given meaning by its context of setting. `" Id. (citation omitted). Therefore, as this Court explained in Cassidy, 415 Mich at 503:

In determining the seriousness of the injury required for a "serious impairment of body function", this threshold should be considered in conjunction with the other threshold requirements for a tort action for noneconomic loss, namely, death and permanent serious disfigurement. MCL 500.3135 . . . . The Legislature clearly did not intend to erect two significant obstacles to a tort action for noneconomic loss and one quite insignificant obstacle.

In addition, the Legislature defined "serious impairment of body function" to mean "an objectively manifested impairment of an important body function that affects the person's general ability to lead his or her normal life." MCL 500.3135(7). Obviously, in enacting this threshold language, and in joining it with "death" and "serious permanent disfigurement," the Legislature was unlikely to have had in mind an impairment that only affected a plaintiffs ability to lead his normal life for a moment in time, with no consideration being given to the plaintiffs general ability to lead his normal life beyond that moment. Indeed, it is quite certain that this is not what the Legislature had in mind, given that the very premise of the no-fault act, and the core of the accompanying legislative compromise, was that some injured persons would not be able to recover noneconomic damages, so that all injured persons would be able to recover economic loss benefits regardless of fault.

D. APPLICATION

As explained earlier, both Kreiner and the majority agree that the court must first determine whether there is a factual dispute that is material to the determination whether plaintiff has suffered a serious impairment of body function. Here, there are no mateisial factual disputes. Before the accident, plaintiff worked approximately 60 hours a week and for the six months immediately before the accident, plaintiffs position was that of a medium-duty truck loader. Additionally, plaintiff fished and golfed. Twelve months after the accident, plaintiffs surgeon cleared him to return to work with no restrictions. Seventeen months after the accident, plaintiff returned to work and has been able to perform all of his job duties since then. During the entire time he was recuperating, plaintiff could tend to his needs and there was no effect on his relationship with his then-fiancee. Additionally, plaintiff continued to fish and golf. Thus, I agree with the majority that there are no factual disputes that are material to the determination of whether plaintiff suffered a serious impairment of a body function. The facts are clear.

I also agree with the majority that the "body function" that was "impaired," the ability to walk, was "important," and that the impairment was "objectively manifested." Although plaintiff was able to walk to some extent, his ability to do so was impaired, and his impairment, a broken ankle, was recognized by his doctors. The final, and critical, inquiry in this case concerns whether the impairment affected plaintiffs general ability to lead his normal life. This is where the majority and I depart. The Kreiner analysis requires a comparison of plaintiffs life before the accident and after the accident, including "the significance of any affected aspects on the course of the plaintiffs overall life." Kreiner, 471 Mich at 132-133. To aid in this analysis, the following factors may be considered:

(a) the nature and extent of the impairment, (b) the type and length of treatment required, (c) the duration of the impairment, (d) the extent of any residual impairment, and (e) the prognosis for eventual recovery. [ Id. at 133.]

Plaintiffs ability to walk, as just noted, was impaired by a broken ankle. However, once plaintiffs ankle was placed in a cast at the emergency room, he was able to walk with the aid of crutches. And, immediately following his initial surgery in which a device was implanted to stabilize his ankle, plaintiff was still able to walk with crutches, although he was instructed not to place any weight on his ankle for one month. Plaintiff underwent physical therapy and nine months later, in October 2005, plaintiff again underwent surgery to remove the device. Ely January 2006 (one year after the accident), plaintiffs surgeon had cleared plaintiff to return to work with no restrictions. However, plaintiff claimed that he could not keep up with the demands of his job and thus was placed back on workers' compensation. Although plaintiffs subjective reports of his pain from January 2006 forward varied greatly, the March 2006 FCE supported plaintiffs claim that he could not fully perform all of his previous job duties; however, this was due in part to a preexisting and unrelated shoulder injury. After plaintiffs workers' compensation benefits were terminated, however, plaintiff requested another FCE, and, on August 1, 2006, the FCE showed that plaintiff was able to perform essential job demands with no restrictions. Plaintiff returned to work on August 16, 2006, and has been able to perform his job duties since that time.

Although plaintiff was assigned to a position that was less physically demanding than the position he had been performing before he was injured, plaintiff did this voluntarily and he suffered no loss in pay. Moreover, at the time plaintiff was injured, he had only been in that position for six months and, since he began to work for Allied in 2002, he had worked in three different positions. Thus, the fact that defendant was assigned to a different position upon his return is not particularly significant in this Court's analysis.

Plaintiffs only argument regarding his inability to lead his normal life is that he was unable to work at certain times. During the time he was recuperating, plaintiff could care for himself and tend to his house-hold chores without assistance. His relationship with his fiancée/wife was unaffected. And he was able to enjoy his recreational activities without interruption. By plaintiffs own admission, his life was "normal" with some "occasional aching" that was not aggravated by any activities, including standing or prolonged walking. It is fair to say that by August 2006 plaintiff had fully recovered from his broken ankle. Because only plaintiffs ability to work was affected and because this only lasted, at most, 17 months, the lower courts did not err in concluding that the impairment did not affect plaintiffs general ability to lead his normal life and, therefore, that plaintiff did not meet the "serious impairment of body function" threshold.

E. STARE DECISIS

The majority overrules Kreiner while paying its usual lip service to stare decisis. My fundamental disagreement with the majority's application of the stare decisis doctrine is quite easily summarized. In Robinson v Detroit, 462 Mich 439, 464; 613 NW2d 307 (2000), this Court drew on past caselaw and identified several relevant considerations in determining whether a case should be overruled under stare decisis. As explained herein, Kreiner was the first occasion on which this Court was called upon to interpret the 1995 amendments to MCL 500.3135. Kreiner gave effect to the legislative intent as expressed in the language of the amended statute and was not, in my judgment, wrongly decided. Nonetheless, my disagreement with the majority on this point is not the thrust of this section. Rather, it is to remind the majority "that there are larger issues at stake in this case: the rule of law, respect for precedent, the integrity of this Court, and judicial restraint. Accordingly, larger institutional issues are implicated in this case." Paige v Sterling Hts, 476 Mich 495, 543; 720 NW2d 219 (2006) (CAVANAGH, J., concurring in part and dissenting in part).

Indeed, the author of the majority opinion, as one who subscribes to the doctrine of legislative acquiescence, has often argued that principles of stare decisis are especially strong in matters of statutory interpretation. Accordingly, his own words are relevant here:

"[T]he majority does not adequately explain why it disregards the doctrine of stare decisis in a matter of statutory interpretation when the Legislature itself has not seen fit in [six] years to correct [ Kreiner's] allegedly incorrect interpretation." Id. at 536. To be fair, it is not only the author of the majority opinion, but all the justices who comprise the majority who should more clearly recognize the consequences of what they are doing. Even a cursory analysis of the majority's treatment of precedent since it ascended to power in January 2009 reveals a lack of sufficient regard for recent precedents that is directly contrary to their own previous assertions of the need not to needlessly overrule cases on account of stare decisis. Past complaints on their part that cases should not be overruled when the only thing that has changed is the membership of the Court have gone by the wayside.

1. MAJORITY AND PRECEDENT IN 2009

The new majority assumed power in January 2009, and wasted little time in beginning its efforts to "undo" decisions of the previous majority. On December 29, 2008, the former majority issued its opinion in United States Fidelity Ins Guaranty Co v Mich Catastrophic Claims Ass'n, 482 Mich 414, 417; 759 NW2d 154 (2008). Soon after Justice HATHAWAY replaced former Chief Justice TAYLOR on January 1, 2009, the plaintiffs filed motions for rehearing. The new majority granted the plaintiffs' motions for rehearing, and the cases were resubmitted for decision "without further briefing or oral argument." 483 Mich 918 (2009). Then, in United States Fidelity Guaranty Co v Mich Catastrophic Claims Ass'n (On Rehearing), 484 Mich 1, 46; _ NW2d (2009), the new majority reversed the former majority's decision.

In Bush v Shabahang, 484 Mich 156, 175 n 34; 772 NW2d 272 (2009), the majority stated that it "question[ed] whether Roberts I [Roberts v Mecosta Co Gen Hosp, 466 Mich 57; 642 NW2d 663 (2002)] and Boodt [v Borgess Med Ctr, 481 Mich 558; 751 NW2d 44 (2008)] were correctly decided . . . ." And, in Potter v McLeary, 484 Mich 397, 424 n 32; 774 NW2d 1 (2009), the majority said: "We question whether Roberts II [Roberts v Mecosta Co Gen Hosp (After Remand), 470 Mich 679; 684 NW2d 711 (2004)] was correctly decided"

The majority's treatment of precedent in the seven-month period from when it took power until the end of the Court's term in July 2009 was well explained in earlier statements of mine and of Justices CORRIGAN and YOUNG. For example, in Henry v Dow Chem Co, 484 Mich 483, 528 n 28; 772 NW2d 301 (2009), Justice YOUNG observed in his partial dissent:

The majority's determination to ignore facts and precedent inconvenient to its desired outcome has become its modus operandi. See, e.g., Vanslembrouck v Halperin, 483 Mich 965 (2009), where the new majority ignored Vega v Lakeland Hospitals at Niles St Joseph, Inc, 479 Mich 243, 244; 736 NW2d 561 (2007); Hardacre v Saginaw Vascular Services, 483 Mich 918 (2009), where it failed to follow Boodt v Borgess Med Ctr, 481 Mich 558; 751 NW2d 44 (2008); Sazima v Shepherd Bar Restaurant, 483 Mich 924 (2009), where it failed to follow Chrysler v Blue Arrow Transport Lines, 295 Mich 606; 295 NW 331 (1940), and Camburn v Northwest School Dist., 459 Mich 471; 592 NW2d 46 (1999); Juarez v Holbrook, 483 Mich 970 (2009), where it failed to follow Smith v Khouri, 481 Mich 519; 751 NW2d 472 (2008); Chambers v Wayne Co Airport Auth, 483 Mich 1081 (2009), where it failed to follow Rowland v Washtenaw Co Rd Comm, 477 Mich 197; 731 NW2d 41 (2007); and Scott v State Farm Mut Auto Ins Co, 483 Mich 1032 (2009), where it failed to enforce Thornton v Allstate Ins Co, 425 Mich 643; 391 NW2d 320 (1986), and Putkamer v Transamerica Ins Corp of America, 454 Mich 626; 563 NW2d 683 (1997).

And, as Justice CORRIGAN stated in her dissenting statement in Beasley v Michigan, 483 Mich 1025, 1029-1030 (2009):

[T]he new majority's failure to abide by Rowland continues a growing and troubling trend. Rather than forth-rightly overruling that decision, it is increasingly becoming the practice of this Court to simply ignore precedents with which it disagrees. . . .

* * *

On this Court, the new majority offers no articulable reasons whatsoever for its apparent detours from stare decisis. Instead, the majority declines to explain whether — and, if so, why — it is overruling precedent despite the obvious appearance that it is doing so. If it intends to alter legal principles embedded in this Court's decisions, then the new majority should explain its reasons clearly and intelligibly. Instead, the new majority overrules by indirection, or at least leaves the impression that it is doing so, thereby sowing the seeds of confusion and making it difficult for. the citizens of this state to comprehend precisely what our caselaw requires. This appears to be an unfortunate return to our predecessors' past practice of "frequently pa[ying] little attention to the inconsistencies among its cases and declin[ing] to reduce confusion in [the Court's] jurisprudence by overruling conflicting decisions." Devillers v Auto Club Ins Ass'n, 473 Mich 562, 571 n 19 [ 702 NW2d 539] (2005).

Additionally, in Petersen, 484 Mich at 313-326, Chief Justice KELLY authored an opinion, joined only by Justice CAVANAGH, in which she indicated that she wanted to overrule Robinson and Lansing Mayor v Pub Serv Comm, 470 Mich 154; 680 NW2d 840 (2004). In my dissent, I stated:

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 reinquire, see Rowland v Washtenaw Co Rd Comm, 471 Mich 197, 223-228; 731 NW2d 41 (2007) (MAEKMAN, 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 NW2d 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 (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 NW2d 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. [ Petersen, 484 Mich at 389-390 (MARKMAN, J., dissenting) (emphasis in the original).]

One other practice to which the new majority began to adhere in 2009 was requesting that the parties brief whether a decision of the former majority should be overruled. See, e.g., Justice YOUNG's partial dissent in Potter, 484 Mich at 450 n 43, in which he stated:

It is quickly becoming a new favored practice of the majority to flag decisions of the past decade and invite challenges to those decisions. It is difficult to reconcile this practice with the majority's previous claims of fidelity to stare decisis. See, e.g.,. . . Pohutski v City of Allen Park, 465 Mich 675, 712; 641 NW2d 219 (2002) (KELLY, J., dissenting) ("[I]f each successive Court, believing its reading is correct and past readings wrong, rejects precedent, then the law will fluctuate from year to year, rendering our jurisprudence dangerously unstable."); Devillers, supra at 620 (WEAVER, J., dissenting) ("Under the doctrine of stare decisis, it is necessary to follow earlier judicial decisions when the same points arise again in litigation."); Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 278; 731 NW2d 41 (2007) (CAVANAGH, J., dissenting) ("Under the doctrine of stare decisis, principles of law deliberately examined and decided by a court of competent jurisdiction become precedent and should not be lightly departed. Absent the rarest circumstances, we should remain faithful to established precedent."). . . . See also Todd C. Berg, Esq., Hathaway Attacks, Michigan Lawyers Weekly, October 27, 2008, in which Justice HATHAWAY was quoted: "I believe in stare decisis. Something must be drastically wrong for the court to overrule"; Lawyers' Election Guide: Judge Diane Marie Hathaway, Michigan Lawyers Weekly, October 30, 2006, in which Justice HATHAWAY, then running for a position on the Court of Appeals, was quoted: "Too many appellate decisions are being decided by judicial activists who are overturning precedent."

Thus, from January 2009 through July 31, 2009, the new majority reversed an opinion on rehearing, sowed seeds of confusion by questioning three cases decided by the former majority, i.e., Roberts I, Roberts II, and Boodt, failed to follow numerous other precedents, as cited above, and began to issue orders requesting that the parties brief whether decisions made by the former majority should be overruled. And Chief Justice KELLY and Justice CAVANAGH went on record urging the express overruling of two cases: Robinson and Lansing Mayor.

2. MAJORITY AND PRECEDENT IN 2010

In 2010, the majority has accelerated efforts to "undo" numerous cases decided by the former majority through express overrulings and additional orders asking parties to brief whether a case should be overruled.

In People v Feezel, 486 Mich 184; 783 NW2d 67 (2010), the majority expressly overruled People v Derror, 475 Mich 316; 715 NW2d 822 (2006). In Lansing Sch Ed Ass'n v Lansing Bd of Ed, 487 Mich 349; ___ NW2d ___ (2010), the majority overruled Lee v Macomb Co Bd of Comm'rs, 464 Mich 726; 629 NW2d 900 (2001), Crawford v Dep't of Civil Serv, 466 Mich 250; 645 NW2d 6 (2002), Nat'l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608; 684 NW2d 800 (2004), Associated Builders Contractors v Dep't of Consumer Indus Servs Dir, 472 Mich 117; 693 NW2d 374 (2005), Mich, Chiropractic Council v Comm'r of the Office of Fin Ins Servs, 475 Mich 363; 716 NW2d 561 (2006), Rohde v Ann Arbor Pub Sch, 479 Mich 336; 737 NW2d 158 (2007), Mich Citizens for Water Conservation v Nestle Waters North America Inc, 479 Mich 280; 737 NW2d 447 (2007), and Manuel v Gill, 481 Mich 637; 753 NW2d 48 (2008). In Bezeau v Palace Sports Entertainment, Inc, 487 Mich 455; NW2d (2010), the majority expressly overruled the limited retroactive effect of Karaczewski v Farbman Stein Co, 478 Mich 28; 732 NW2d 56 (2007). In Univ of Mich Regents v Titan Ins Co, 487 Mich 289; NW2d (2010), the majority expressly overruled Cameron v Auto Club Ins Ass'n, 476 Mich 55; 718 NW2d 784 (2006). In O'Neal v St John Hasp Med Ctr, 487 Mich 485, 506 n 22; ___ NW2d ___ (2010), the lead opinion authored by Justice HATHAWAY indicated its agreement with Justice CAVANAGH's partial dissent in Wickens v Oakwood Healthcare Sys, 465 Mich 53, 63-67; 631 NW2d 686 (2001), which already had the support of three justices (Chief Justice KELLY and Justices CAVANAGH and WEAVER). And, of course, in the case at bar, the majority has expressly overruled Kreiner. Finally, by amending MCR 2.112 and MCR 2.118 to allow amendments of affidavits of merit to relate back to the of the original filing of the affidavit, the majority effectively overruled Kirkaldy v Rim, 478 Mich 581; 734 NW2d 201 (2007). 485 Mich (2010).

3. OVERRULINGS OF PRECEDENT TO COME

The majority's work, however, has apparently only just begun. In orders granting applications for leave to appeal, it has already teed up six more cases for possible overruling. These include: Mich Citizens for Water Conservation v Nestle Waters North America Inc, 479 Mich 280; 737 NW2d 447 (2007); Preserve the Dunes, Inc v Dep't of Environmental Quality, 471 Mich 508; 684 NW2d 847 (2004); Trentadue v Buckler Automatic Lawn Sprinkler Co, 479 Mich 378; 738 NW2d 664 (2007); Griffith v State Farm Mut Auto Ins Co, 472 Mich 521; 697 NW2d 895 (2005); Rory v Continental Ins Co, 473 Mich 457; 703 NW2d 23 (2005); and Rowland v Washtenaw Co Rd Comm, 471 Mich 197; 731 NW2d 41 (2007).

The new majority once purported to be concerned about the stability of the law, but that concern appears to have passed with the passing of the former majority. Indeed, it is difficult to consider anything more destabilizing to the law than to have the majority issue multiple orders continually requesting that the parties brief whether recently decided cases have been properly decided. Justices who once postured as champions of stare decisis now cannot act quickly enough to overrule disfavored precedents. The majority's past claims of fealty to stare decisis were greatly exaggerated, and obviously nothing more than a function of their opposition to particular decisions being decided by the Court at the time.

4. HYPOCRISY AND STARE DECISIS

The majority accuses the dissenting justices of hypocrisy with regard to our stare decisis criticisms of the majority.

The dissenters' stare decisis protestations should taste like ashes in their mouths. To the principles of stare decisis, to which they paid absolutely no heed as they denigrated the wisdom of innumerable predecessors, the dissenters now would wrap themselves in its benefits to save their recent precedent. [ Ante at 209 n 21.]

However, the position of the dissenting justices on stare decisis has not changed a whit since we were in the majority; by contrast, the position of the majority justices is unrecognizable.

It has always been our position that stare decisis is not an "inexorable command,"and that a judge's primary obligation is to the law and the constitution, not to the judgments of his or her predecessors. To that end, we have always asserted that there are multiple judicial values that must be assessed in any case in which previous decisions of the Court are implicated. In every such case, a judge must respectfully consider the interests served by stare decisis — predictability and certainty in the law, and the uniformity of its application. However, in every such case, a judge must also consider the interests served by interpreting the law correctly" regard for the lawmaker, adherence to constitutional dictates concerning the "judicial power" and the separation of powers, and competing predictability and certainty interests that are served where the law means what it plainly says. Robinson, 462 Mich at 464-468. As we explained in Robinson:

[I]t is well to recall in discussing reliance, when dealing with an area of the law that is statutory . . ., that it is to the words of the statute itself that a citizen first looks for guidance in directing his actions. This is the essence of the rule of law: to know in advance what the rules of society are. Thus, if the words of the statute are clear, the actor should be able to expect, that is, rely, that they will be carried out by all in society, including the courts. In fact, should a court confound those legitimate citizen expectations by misreading or misconstruing a statute, it is that court itself that has disrupted the reliance interest. When that happens, a subsequent court, rather than holding to the distorted reading because of the doctrine of stare decisis, should overrule the earlier court's misconstruction. The reason for this is that the court in distorting the statute was engaged in a form of judicial usurpation that runs counter to the bedrock principle of American constitutionalism, i.e., that the lawmaking power is reposed in the people as reflected in the work of the Legislature, and, absent a constitutional violation, the courts have no legitimacy in overruling or nullifying the people's representatives. Moreover, not or fly does such a compromising by a court of the citizen's ability to rely on a statute have no constitutional warrant, it can gain no higher pedigree as later courts repeat the error. [ Id. at 467-468.]

That has been the consistent approach of the dissenting justices, and this continues to be our approach. Respect for stare decisis is a critical judicial value, but so is a regard for the constitutional processes of government by which a judge strives to interpret the law in accordance with its actual language. Balancing these values is sometimes difficult, and reasonable people can often disagree as to how this balance should be struck. Robinson supplies one attempt at identifying the factors that courts have traditionally looked to in striking this balance in a consistent and reasonable manner. Despite suggestions to the contrary, Robinson does not establish a "mechanical" process, but simply attempts to afford reasonable guidance in achieving a fair equilibrium between stare decisis and getting the law right.

However, as explained above, the justices now in the majority who were on the Court at the time took a quite different approach to stare decisis when they were in the minority. As Justice YOUNG has explained:

[Our] position on stare decisis has not changed, and the [the majority] attempts to shift focus to [us] in order to avoid confronting [their] own inconsistency. T'he public should understand when justices' positions on important matters shift. And that is the focus of this dissent: when the [majority] justice[s] [were] in the minority, [they] liked stare decisis a lot; now that [they are] in the majority, it is not an issue. That is the "irony" the public should understand. [ Anglers, 486 Mich at 993 (2010) (YOUNG, J., dissenting)]

The majority entirely misapprehends our criticism of its record on stare decisis if it thinks that we are simply counting the number of occasions on which they have overruled precedent over the past term and a half. That is not our intention at all. We freely acknowledge that we too overruled precedents when we were in the majority" although hardly at their remarkable pace. That is not the nub of our critique. Rather, the nub is: (a) that the majority justices have demonstrated a remarkably inconsistent and "flexible" attitude toward stare decisis, in which their views on the subject appear to be nothing more than a function of whether they are in the majority or the minority; and (b) that the majority justices equate their own overrulings of precedent, in which they have widened the distance between the law of the lawmaker and the law of the court, with the previous majority's overrulings, in which we did the opposite.

"[N]o meaningful discussion of a court's attitude to-ward 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." Rowland, 477 Mich at 226 (MARKMAN, J., concurring). The chart set forth in Rowland demonstrates, we believe, that the overrulings of precedent that occurred between January 1, 2000, until Rowland was decided on May 2, 2007, "overwhelmingly came in cases involving what the justices in the majority [at that time] view[ed] 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. That is, these overrulings of precedent sought more closely to equate our state's caselaw with our statutes, while the overrulings of precedent of the present majority have achieved exactly the opposite.

Thus, the present majority has regard neither for precedent nor for the most significant competing value that would sometimes warrant overturning a precedent, to wit, that it is not in accord with the words of the lawmaker. In the end, the majority's approach to stare decisis is empty and incoherent. The majority has unsettled the precedents of this Court at a Guinness world's record pace, and it has done so while disserving both the values of stare decisis and that of a court acting in accordance with the constitutional separation of powers to respect the decisions of the lawmaker. The majority has run amuck in service of values that have no grounding in either stare decisis or any other conception of the "judicial power," other than that they comprise an arithmetical majority of this Court. In this regard, the majority confuses power and authority. The majority unsettles and confuses the law both in its disregard for this Court's previous decisions and in its equal disregard for the language of the law. It compounds the confusion it fosters in one realm with the confusion that it fosters in the other. There is no saving grace in its overrulings of precedent, no balancing of difficult judicial principles, no apparent recognition of the values served by either of the competing considerations involved where precedents are at issue, and no thoughtful effort to articulate even the roughest principles for its actions. In its destructive march through the caselaw of this state to identify surviving and straggling decisions that need to be "taken out," the majority furthers no discernible legal value of any kind, other than litigation and still more litigation. In the end, there is no legal core to the majority's approach to stare decisis, and it is left with nothing other than a feeble effort to equate its own actions with those of the dissenting justices when they were in the majority. "We are no worse than you" is the majority's banner, when in truth the majority has not the slightest conception of our approach to stare decisis, and not the slightest conception of the damage that their own approach to stare decisis is doing to the citizens of this state who wish to act in accordance with the law and who wish to understand their rights and obligations under that law.

F. UNDOING THE LEGISLATIVE COMPROMISE

As discussed earlier, although virtually all legislation involves some sort of compromise, the no-fault act, in particular, entailed a substantial and well-understood compromise. In exchange for the payment of economic loss benefits from one's own insurance company (first-party benefits), the Legislature limited an injured person's ability to sue a negligent operator or owner of a motor vehicle for noneconomic losses (third-party benefits). Kreiner, 471 Mich at 114-115. As stated in Stephens v Dixon, 449 Mich 531, 541; 536 NW2d 755 (1995): "It was a specific purpose of the Legislature in enacting the Michigan no-fault act to partially abolish tort remedies for injuries sustained in motor vehicle accidents and to substitute for those remedies an entitlement to first-party insurance benefits."

At least two reasons are evident concerning why the Legislature limited recovery for noneconomic loss, both of which relate to the economic viability of the system. First, there was the problem of the overcompensation of minor injuries. Second, there were the problems incident to the excessive litigation of motor vehicle accident cases. Regarding the second problem, if noneconomic losses were always to be a matter subject to adjudication under the act, the goal of reducing motor vehicle accident litigation would likely be illusory. The combination of the costs of continuing litigation and continuing overcompensation for minor injuries could easily threaten the economic viability, or at least desirability, of providing so many benefits without regard to fault. If every case is subject to the potential of litigation on the question of noneconomic loss, for which recovery is still predicated on negligence, perhaps little has been gained by granting benefits for economic loss without regard to fault.

Regarding the trade-off involved in no-fault acts, 7 Am Jur 2d, Automobile Insurance, § 340, p 1068, contains the following:

"It has been said of one such plan that the practical effect of the adoption of personal injury protection insurance is to afford the citizen the security of prompt and certain recovery to a fixed amount of the most salient elements of his out-of-pocket expenses * * *. In return for this he surrenders the possibly minimal damages for pain and suffering recoverable in cases not marked by serious economic loss or objective indicia of grave injury, and also surrenders the outside chance that through a generous settlement or a liberal award by a judge or jury in such a case he may be able to reap a monetary windfall out of his misfortune." (Footnotes omitted.)

Thus, it is apparent that the threshold requirements for a traditional tort action for noneconomic loss play an important role in the functioning of the no-fault act. [ Cassidy, 415 Mich at 500-501.]

Accordingly, there is no question that the legislative compromise that produced the no-fault act recognized that some injuries would not be considered sufficient to meet the no-fault threshold. While every injury resulting from a motor vehicle accident certainly has adverse consequences, and may involve medical costs, treatment, and bodily pain, not all injuries rise to the level of the no-fault threshold of a "serious impairment of body function." Some injured persons are able to recover noneconomic damages, so that all injured persons are able to recover economic loss benefits regardless of fault. Otherwise, "little has been gained by granting benefits for economic loss without regard to fault." Id. at 500. Indeed, "the excessive litigation of motor vehicle accident cases" would continue, and, yet, economic loss benefits would have to be paid regardless of fault. Id. In other words, plaintiffs would be able to recover economic loss benefits regardless of fault and without having to go to a jury, while these same plaintiffs would also be able to go to a jury and seek noneconomic benefits as well. That is not the compromise reached by the Legislature. In particular, it is a lose-lose proposition for those funding the no-fault system, i.e., all insured Michigan drivers.

In addition, it has been repeatedly recognized that, due to the mandatory nature of no-fault insurance, the Legislature intended that its cost be affordable. Shavers, 402 Mich at 599 ("The Legislature has . . . fostered the expectation that no-fault insurance will be available at fair and equitable rates."). Indeed, because it is mandatory, it must be affordable. Id. at 600 ("We therefore conclude that Michigan motorists are constitutionally entitled to have no-fault insurance made available on a fair and equitable basis."). It is a matter of economic logic that in order to maintain a system in which motor vehicle accident victims are able to receive economic loss benefits regardless of fault, drivers must be required to purchase insurance, and in order to ensure that drivers purchase this insurance, it must be kept affordable. The majority's decision, however, very considerably "lowers the bar" that an injured plaintiff must satisfy in order to meet the serious impairment of body function threshold, making it significantly easier for a plaintiff to recover for noneconomic losses. This means insurance companies that issue no-fault policies will be financially obligated in more cases and, as a result, will be required to pass along their increased costs to policyholders by way of increased premiums charged to Michigan drivers. Today's decision, just as last term's decision by the new majority in United States Fidelity (On Rehearing), will eventually result in a substantial increase in premiums, paid for their mandatory no-fault policies.

Every owner of a car that is driven on a public highway must buy certain basic coverages in order to register the vehicle and obtain license plates. MCL 500.3101(1). The Legislature has provided two incentives to ensure that owners purchase the required insurance. First, it is a misdemeanor to drive a motor vehicle without basic no-fault coverage. Under MCL 500.3102(2), if someone is convicted of driving without basic no-fault insurance coverage, he or she can be fined up to $500, incarcerated in jail for up to one year, or both. Second, the no-fault act precludes receipt of no-fault personal protection insurance benefits if at the time of the accident the person was the owner or registrant of an uninsured motor vehicle involved in the accident. MCL 500.3113(b). Notwithstanding this criminal sanction, and this potential preclusion of no-fault benefits, it is estimated that 17 percent of Michigan's approximately 8 million motor vehicles are still operated without a no-fault policy in effect. With such mandatory policies now becoming even more expensive, one can also reasonably anticipate a corresponding increase in the already large number of uninsured vehicles being driven on our roads and highways.

The majority's decision will not only result in increased automobile insurance premiums, and more uninsured vehicles on our roads and highways, but it will also mean that substantially more lawsuits will be filed, even though an express goal of the no-fault act was to reduce "excessive litigation of motor vehicle accident cases." Cassidy, 415 Mich at 500. Yet, under the majority's opinion, more lawsuits will make their way to juries for the consideration of noneconomic loss benefits, straining our already overburdened courts. As it is, no-fault automobile negligence cases remain a dominant factor in Michigan civil filings every year. Indeed, of the 47, 300 new civil case filings in Michigan circuit courts in 2009, 9,067 "approximately 20 percent of all civil cases — were automobile related. Given that many no-fault claims are settled without the filing of a lawsuit, the number of claims potentially affected by the majority's ruling is even higher.

The majority's decision will also increase the costs incurred by the state of Michigan itself (and, of course, the taxpayers who fund those costs). In the course of arguing that Kreiner should not be overruled because it "clarifies rather than expands the statutory language," the Attorney General's amicus curiae brief warns that if Kreiner is overruled, as a self-insured entity, the state will realize "a direct, significant increase in the cost of its litigation and coverage obligations."

Finally, and as a consequence of all the above, the majority's decision will almost certainly call into question the long-term economic integrity of the present no-fault system in Michigan. By nullifying the legislative compromise that was struck when the no-fault act was adopted — a compromise grounded in concerns over excessive litigation, the over-compensation of minor injuries, and the availability of affordable insurance" the Court's decision today will restore a legal environment in which each of these hazards reappears and threatens the continued fiscal soundness of our no-fault system.

Iv CONCLUSION

The no-fault automobile insurance act, in MCL 500.3135(1), provides that "[a] person remains subject to tort liability for noneconomic loss caused by his or her ownership, maintenance, or use of a motor vehicle only if the injured person has suffered death, serious impairment of body function, or permanent serious disfigurement." The issue here is whether plaintiff has suffered a serious impairment of body function. "`[S]erious impairment of body function' means an objectively manifested impairment of an important body function that affects the person's general ability to lead his or her normal life." MCL 500.3135(7).

In Kreiner, 471 Mich at 132-133, this Court held that in determining whether the impairment affects the plaintiffs general ability to lead his normal life, "a court should engage in a multifaceted inquiry, comparing the plaintiffs life before and after the accident as well as the significance of any affected aspects on the course of the plaintiffs overall life." In addition, Kreiner indicated that certain factors, such as the duration of the impairment, may be of assistance in evaluating whether the plaintiffs general ability to lead his normal life has been affected. Id. at 133.

The majority overrules Kreiner, rejecting these factors and holding that temporal considerations are wholly or largely irrelevant in determining whether an impairment affects the plaintiffs general ability to lead his or her normal life. The majority apparently holds instead that as long as a plaintiffs general ability to lead his normal life has been affected for even a single moment in time, the plaintiff has suffered a serious impairment of body function. This conclusion is at odds with the actual language of the statute and nullifies the legislative compromise embodied in the no-fault act. Because I believe that Kreiner was correctly decided and that temporal considerations are, in fact, highly relevant, and indeed necessary, in determining whether an impairment affects the plaintiffs general ability to lead his normal life, I would sustain Kreiner. By nullifying the legislative compromise over the no-fault act — a compromise grounded in concerns over excessive litigation, the over-compensation of minor injuries, and the availability of affordable insurance — the Court's decision today will revive a legal environment in which each of these hazards reappears and threatens the continued fiscal integrity of our no-fault system.

Because I do not believe that the lower courts erred in concluding that plaintiff has not suffered a serious impairment of body function, I would affirm the judgment of the Court of Appeals.

CORRIGAN and YOUNG, JJ., concurred with MARKMAN.