Opinion
No. 134799.
October 3, 2008.
Reported below: 276 Mich App 67.
Summary Dispositions October 3, 2008.
Pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we vacate only that part of the Court of Appeals judgment that held that the trial court properly denied the defendants' request for a hearing concerning attorney fees in the plaintiffs favor as case evaluation sanctions under MCR 2.403(O)(6)(b). Under the facts of this case, such a hearing was necessary. We remand this case to the Oakland Circuit Court for a hearing on the subject of a reasonable attorney fee, consistent with Smith v Khouri, 481 Mich 519 (2008). In all other respects, the application for leave to appeal as cross-appellants is denied, because we are not persuaded that the remaining questions presented should be reviewed by this Court. We do not retain jurisdiction.
I concur in all respects in the Court's order denying leave to appeal and remanding the case for an evidentiary hearing on the attorney fee award. I specifically concur in the denial of plaintiffs application for leave to appeal because the Court of Appeals correctly held that the higher noneconomic damages cap found in MCL 600.1483(1) does not apply to plaintiffs wrongful death action. I disagree, however, with the basis for the Court of Appeals holding. The Court of Appeals held that while the higher noneconomic damages cap may apply to wrongful death actions, in this case plaintiff failed to satisfy the statutory requirements for application of the higher cap.
I continue to adhere to the principles cited in my partial dissenting opinion in Shinholster v Annapolis Hosp, 471 Mich 540, 582-597 (2004), that the plain language of MCL 600.1483(1) prohibits the application of the higher noneconomic damages cap to all wrongful death actions.
CAVANAGH, WEAVER, and KELLY, JJ. We would grant leave to appeal.