874 N.W.2d 359
Mich. Ct. App.2015Background
- Plaintiff Shakeeta Simpson, as personal representative of the estate of Antaun Simpson (a nonviable fetus), sued for wrongful death after an alleged miscarriage at 18.2 weeks caused by defendants' prenatal negligence (failure to perform a cerclage).
- Defendants moved for partial summary disposition under MCR 2.116(C)(8)/(C)(10), arguing dismissal was required because plaintiff alleged an omission, and under MCL 600.2922a liability requires an affirmative act.
- The trial court granted dismissal, concluding the 2005 amendment to MCL 600.2922 incorporated §2922a into §2922 and therefore required alleging an affirmative act.
- Simpson appealed, arguing her claim is a wrongful-death action under MCL 600.2922 for a nonviable fetus and that omissions (neglect) suffice under §2922.
- The Court of Appeals reviewed statutory interpretation de novo and analyzed the interaction between MCL 600.2922 and MCL 600.2922a and applicable precedent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether wrongful-death claim for nonviable fetus must plead an affirmative act under MCL 600.2922a | Simpson: claim is a wrongful-death action under MCL 600.2922; omissions (“neglect”) suffice | Defendants: 2005 amendment requires incorporation of §2922a, which (per Johnson) requires an affirmative act, so omissions insufficient | Reversed: §2922a is separate; wrongful-death actions under §2922 for fetal death need not allege an affirmative act; omissions can establish liability |
| Whether the 2005 amendment to §2922 incorporated §2922a entirely into §2922 | Simpson: amendment only expanded the class of actionable deaths to include embryo/fetus deaths | Defendants/trial court: amendment imported §2922a into §2922 so its requirements apply | Held: amendment only expanded what deaths are actionable; it did not import §2922a’s separate statutory cause or its pleading requirement into §2922 |
| Whether plaintiff’s malpractice-based wrongful-death claim is barred because it alleges failure to act (omission) | Simpson: malpractice-based wrongful-death fits within §2922’s "wrongful act, neglect, or fault" language, allowing liability for omissions | Defendants: reliance on Johnson—claims under §2922a require affirmative acts, so omission-based malpractice fails | Held: §2922’s terms (including "neglect") permit liability for omissions; plaintiff pleaded a viable wrongful-death claim |
| Applicability of Johnson v. Pastoriza to this case | Simpson: Johnson is distinguishable because it addressed pre-amendment events and claims under §2922a, not a post-amendment wrongful-death under §2922 | Defendants: Johnson supports that omissions cannot sustain statutory prenatal injury claims | Held: Johnson does not control; it concerned pre-amendment timing and separate §2922a claims, so it doesn’t require dismissal here |
Key Cases Cited
- Johnson v. Pastoriza, 491 Mich. 417 (2012) (distinguishes §2922 wrongful-death claims from separate §2922a prenatal-injury statute)
- Jenkins v. Patel, 471 Mich. 158 (2004) (wrongful-death act provides exclusive remedy for wrongfully caused death)
- Wesche v. Mecosta Co. Rd. Comm'n, 480 Mich. 75 (2008) (wrongful-death action is a filter for the underlying claim; product of applicable limits)
- Spiek v. Dep’t of Transp., 456 Mich. 331 (1998) (summary disposition reviewed de novo)
- Wade v. Dep’t of Corr., 439 Mich. 158 (1992) (MCR 2.116(C)(8) standard—legal insufficiency only when no factual development could justify recovery)
- Joseph v. Auto Club Ins. Ass’n, 491 Mich. 200 (2012) (statutory interpretation principles; plain meaning controls)
- O’Neill v. Morse, 385 Mich. 130 (1971) (wrongful-death statute’s purpose: permit action when an action would have existed had death not ensued)