noting that language in homicide statute requiring intent to effect death of the person "or another" incorporates the doctrine of transferred intentSummary of this case from State v. Noble
Submitted October 8, 1998 at Detroit.
Decided April 9, 1999, at 9:35 A.M.
Siemion, Huckabay, Bodary, Padilla, Morganti Bowerman (by Thomas M. Caplis and Michael J. Rinkel), for Safeco Insurance Company, Southfield.
Charfoos, Reiter, Peterson, Holmquist Pilchak, P.C. (by James A. Reiter), for Mindell, Panzer, Mulcahy Malin, P.C., and Continental Casualty Company, Farmington Hills.
Before: KELLY, P.J., and HOLBROOK, JR., and MURPHY, JJ.
Appellant appeals by leave granted from an order of the Worker's Compensation Appellate Commission (WCAC) denying appellant's motion to reinstate plaintiff's petition. We affirm.
Plaintiff was injured in an automobile accident in November 1989. She filed her petition for worker's compensation benefits approximately one year after the accident. Plaintiff suffered a spinal injury that resulted in the loss of use of her upper extremities. Plaintiff also reported that the accident left her suffering from severe headaches and vertigo, as well as unspecified psychiatric and emotional difficulties. At the time of the accident, appellant was plaintiff's no-fault insurance carrier. Appellant filed its intervening petition in October 1992. In an order dated July 26, 1995, the magistrate dismissed plaintiff's petition for lack of progress. MCL 418.205; MSA 17.237(205). In an order dated February 29, 1996, the WCAC denied appellant's motion to reinstate.
Continental Casualty Company (hereinafter Continental) is the worker's compensation insurance carrier for defendant Mindell, Panzer, Mulcahy Malin, P.C., (hereinafter defendant). Continental paid plaintiff's benefits for the first five months of 1990. Continental then terminated those payments, arguing that plaintiff did not have a compensable injury. Thereafter, appellant began paying no-fault insurance benefits to plaintiff.
The parties agree that this matter was adjourned numerous times before trial finally commenced. In her order of dismissal, the magistrate observed that the case "was set for trial 16 times before trial was commenced on 12/14/94," over five years after plaintiff's accident, and four years after plaintiff filed her petition. Then in June 1995, an apparent breakthrough came when a tentative settlement was reached between Continental and appellant. However, when two scheduled redemption hearings failed because of concerns raised by plaintiff, the magistrate ordered the "matter dismissed due to a profound lack of progress."
We review the WCAC's resolution of a motion to reinstate a worker's compensation petition for an abuse of discretion. Vido v. Ford Motor Co, 89 Mich. App. 646, 648; 280 N.W.2d 513 (1979). An abuse of discretion occurs when an unprejudiced person, considering all the facts on which the tribunal acted, would conclude that the decision could not be justified. People v. Ullah, 216 Mich. App. 669, 673; 550 N.W.2d 568 (1996). In other words, an abuse of discretion occurs when the decision is "so palpably and grossly violative of fact and logic that it evidences not the exercise of will but the perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias." People v. Bahoda, 448 Mich. 261, 289, n 57; 531 N.W.2d 659 (1995).
After reviewing the record, we conclude that the WCAC did not abuse its discretion in denying appellant's motion to reinstate the petition. Appellant concedes that the "case has a long and protracted history." However, appellant argues that by dismissing the petition, the WCAC is unfairly punishing appellant for the dilatory actions of plaintiff. We disagree. MCL 418.205; MSA 17.237(205) states that a case may be dismissed "for lack of progress." It does not say that the decision to dismiss must be conditioned on a finding that the petitioner is at fault for the lack of progress. See Coleman v. Gurwin, 443 Mich. 59, 65; 503 N.W.2d 435 (1993) (observing "that a clear and unambiguous statute leaves no room for judicial construction or interpretation"). Therefore, regardless of who is at fault for the course of events in this matter, we conclude that the WCAC's decision to deny appellant's motion does not evidence a perversity of will, a defiance of judgment, or the exercise of passion or bias.