Simpson v. BORBOLLA CONSTRUCTION & CONCRETE SUPPLY, INC. , 741 N.W.2d 519 ( 2007 )

741 N.W.2d 519 (2007)

Dennis G. SIMPSON, Plaintiff-Appellee,
v.
BORBOLLA CONSTRUCTION & CONCRETE SUPPLY, INC. and Cincinnati Insurance Company, Defendants-Appellants, and
Fluor Constructors International, Inc. and Travelers Casualty & Surety Company, Defendants-Appellees, and
Silicosis Dust Disease & Logging Industry Compensation Fund, Defendants.

Docket No. 133274. COA No. 264106.

Supreme Court of Michigan.

December 7, 2007.

On November 8, 2007, the Court heard oral argument on the application for leave to appeal the January 25, 2007 judgment of the Court of Appeals. On order of the Court, the application is again considered. MCR 7.302(G)(1). In lieu of granting leave to appeal, we VACATE the opinion of the Court of Appeals because the panel erroneously held that Rakestraw v. Gen. Dynamics Land Sys., Inc., 469 Mich. 220, 666 N.W.2d 199 (2003), does not apply to the facts of this case. We AFFIRM the result reached by the Court of Appeals for the reasons stated in the Workers' Compensation Appellate Commission opinion.

WEAVER, J., concurs and states as follows:

I concur in the order vacating the Court of Appeals opinion but affirming the result of the opinion for the reasons stated in the Workers' Compensation Appellate Commission opinion. Although I dissented in Rakestraw v. Gen. Dynamics Land Sys., Inc., 469 Mich. 220, 234, 666 N.W.2d 199 (2003), my dissent in that case is not inconsistent with the order.

MARILYN J. KELLY, J., concurs in part and dissents in part and states as follows:

I concur in that part of the order affirming the result reached by the Court of Appeals. But I dissent from the order to the extent that it vacates the Court of Appeals decision. I believe that the Court of Appeals panel correctly analyzed the issue, and I would not vacate its published opinion.