Catanese v. Heggen
320 N.W.2d 351
Mich. Ct. App.
1982
Check Treatment

*1 1982]

CATANESE v HEGGEN 5, 1981, 45366. Docket No. Submitted November at Detroit. Decided April 1982. Catanese, special Carl A. administrator of the estate of Barbara Catanese, deceased, brought wrongful against A. death action M.D., Heggen, M. Hospital Donald and William Beaumont Circuit Court. Defendants are residents or situ- County. ated in Oakland The acts to constitute the County. action occurred in Oakland Plaintiffs dece- court, Gribbs, J., dent died The Roman S. granted County, holding of venue to Oakland improperly appealed. venue was laid. Plaintiff Held: properly Venue was and the court clearly holding. erred in its vacated case Order remanded. Beasley, J., dissented. Since death statute does specific provision, not contain a venue stat- control the

utes correct forum a The action. not, county ipso fact that a dies in one facto, county make that forum for a action.

Opinion of the Court Wrongful — 1. Venue Death.

Venue in a laid county where the death occurred. Appeal — 2. Venue. Appeals involving reviews decisions claims that was not laid to determine whether the trial ruling court erred that venue or im- properly laid.

[1, [2] Venue of 77 Am Jur 4 Am Jur Am Jur 2d, Appeal 2d, References 2d, Venue 85.§ Death 189. death action. 36 ALR2d 1146. § Error Points § Headnotes by Beasley, Wrongful — 3. Venue Death. not, *2 county plaintiff’s death in the decedent’s The fact of a ipso facto, county for a a venue make death action. Courtney (by Ripple, Steiner, P.C. & Chambers Morgan), plaintiff. E. for Ranger, Bone, for defendant Ward &

Sullivan, Hospital. Beaumont William Beasley E. Gillis, P.J., and P. H. Before: J. Deegan,* JJ. appeal from This arises E. P. Deegan, County. The in filed granted motion for defendants’

trial court a claim that venue was of on venue based improperly laid. decedent, Macomb a resident of

Plaintiff’s County, of the care and treatment under purposes venue, in reside defendants, who, of for County. condition Deterioration Oakland plaintiffs hospitali- eventually to led her

decedent Hospital, Harper located in at zation pa- expired while Plaintiffs plaintiff Harper Hospital. Thereafter, com- tient claiming wrongful death action for menced diag- failure for defendants’ plaintiff’s decedent, af- who was treat nose and with leukemia. flicted upon question are to decide we called

The prop- whether, in a county erly death occurred lies where the alleged underlying county medi- where the place. took cal * Appeals by assignment. judge, sitting Circuit v Opinion of the Court provides 600.1627; MCL MSA 27A.1627 county laid in that in which "all part aor action arose”. hospital

Defendant contends that venue was not proper Wayne County because a wholly placing derivative, action is thus where the deceased have would able to the action on the she had underlying died, in Oakland where the disagree. claim arose. We An death is derivative in representative of the deceased stands Goree, Toth the latter’s shoes. statute, 600.2922; 27A.2922, MSA

MCL establishes that liability death attaches to those who would been liable if have death had not ensued. *3 concept wrongful being aof wholly derivative, in the sense that defendant hospital urges, applied analyzing has underlying the substantive nature of the claim. Co, Thus Maiuri v Sinacola Construction 382 (1969), 391; Mich 170 27 NW2d the Court held that, because decedent would have been barred injuries resulting from an action for in death provisions remedy because of the exclusive compensation act, then-titled workmen’s dece- personal representative dent’s was also bound to remedy that exclusive and could not wrongful an action for v death. See Toth also supra, Goree, resolving procedural issues, however,

In an ac- wrongful tion for death is considered to abe new special remedy. Coury In v General Motors Corp, (1965), 376 Mich involv- ing question the of when the statute of limitations begins running in a the death 301 the Court action for cause of the held therefrom, resulting ac-

death, the The Court stated: occurs. crues that death when Estate, NW Maney’s 251 Mich 461 v Ford [232 1315) (70 under so- [1930], action was the the ALR 393] called survival distinguishing between the statute. acts, made the observation that: the " the act created a State it is held that 'In this law, by the common action unknown to cause of right accruing to the deceased way of a of survival death, a new and at this but as which before had abated the accruing by to who loss remedy those suffer special ” 248, 251. death.’ 709, 713-714; Armstrong, Rhule (1971), opinion construing another of limitations under the the statute operation act, noted that since the Court wrongful death all stipulated death act has resulting in death injuries for death actions death act. under must be rise to recognizing gives the fact which While action is his either imme- which causes thereafter, that: Court held diately or independent "The death act action is an solely the date of and because action which arises wrongfully person’s does not 'sur- injured death. It Id., wrongfully person’s by injured death.” vive law’ 715-716. *4 in cases

This Court has decided two recently death on medical volving actions based Palmer limitation. malpractice and statutes Hospital, Memorial tree v Genesee App 102 Mich 683; (1981), 302 NW2d 279 this Court held: Cat anese v 305 op the Court identity persons "Given the recover who a death suit and the nature of therein, are which assessed it is held that generally wrongful death cause action not accrue until death 248, Coury occurs. General Corp, 376 Motors Mich (1965). 251; Likewise, NW2d 137 134 in wrongful death grounded cases are medical malprac of tice, regardless of when the cause action accrues, cause of action could e.g., not accrue until death See, occurred. vWeiss Bigman, 487, App (1978), 84 270 5 496; Mich NW2d lv (1979) (Cavanagh, den 405 concurring Mich 820 J., otherwise, it separately). personal representa Were (by tive of the brought) be whom the must suit prescient, would have to would be suit barred period in cases limitation runs before death (Footnote omitted.) Id., occurs.” 687-688. v Seaway Hospital, In Penner 102 App Mich 697; (1981), 302 285 held that a NW2d for wrongful death accrues on the date of medical v Big period applies, limitations Weiss two-year man, (1978) (Cav 84 App 487; Mich 270 5 NW2d J., concurring), lv den 405 anagh, (1979), 820 Mich v Harrison Olijnyk Community Hospital, 80 366; lv den Mich App (1977), NW2d (1978), Castle v Lockwood-MacDonald (1972). Hospital, App In reaching its decision the Court stated: effect, necessary element of necessary the cause of action but also a condition precedent representative’s right to the suit. In Estate, Olney’s 75-78; re Rhule, supra, See also 715-716.” 102 Mich 697, In light of the holding in Rhule subse- decisions of this quent establishing *5 by Beasley, J. Dissent element necessary purposes procedural action, without cause of accrue, we that not hold the cause does properly venue in the instant case was expired because where County the cause of action part that "all or a where 600.1627; MSA 27A.1627. arose”. MCL also have been For venue would the same reason the mal- where properly County, laid Oakland arose, had of action practice of the cause "part” had there or brought the action plaintiff originally change its motion for hospital brought defendant proper grounds. on the In claims that venue was involving cases laid, this review the lower Court must to determine whether court’s in order decision ruling erred clearly court Bros, Inc v laid. improperly or Shock 698-699; Industries, Morbark 311 NW2d case, because had

In the instant County, plaintiff laid action, trial erred court improperly of venue issuing its order laid. venue is vacated and changing

The order Circuit cause remanded proceedings. Court for further Gillis, P.J., H. J. concurred. I

Beasley, (dissenting). J. dissent. respectfully defen- medical both in Oak- either reside in are established dants acts land cases, arose Oakland by Beasley, general rule for the determination of venue is conformity the action be instituted in governing personal with the venue statute exception actions. An to the rule is where specifically a state’s death statute con- *6 provision. Supporting tains a venue these conclu- following sions are the authorities: appli- the absence of a venue statute specifically death, cable to actions to recover for or where particular wrongful death case lacks characteristics making specific applicable, some other venue statute it general would seem to be the rule that a if, if, properly brought death action is and it is in provision dealing accordance with the of the statute (Footnote with the venue of civil generally.” actions omitted.) actions, Anno: Venue of ALR2d 1150. "The form of the action for death is some- expressly provided times by giving for the statute the right provision, of action. the absence of such a the should, said, it action has been be tried in the same governed by general principles manner and be the same practice injured person as it would have if suing had not died and was to recover for the wrongful act.

"If applicable there is a venue statute specifically death, then, course, proper actions requires compliance venue statutory provi- with such sion. But any specifically applica- absent venue statute death, ble to an action for it seems may be, wherever the defendant governing accordance with the venue statute actions personal injuries generally, or civil actions unless the defendant one specifically is as to whom there is a statute, applicable corporation, a re- such as a corporation, carrier, ceiver of a or a case the which setting against corpo- statutes rations, out the venue of actions carriers, corporations, respec- receivers of omitted.) (Footnotes 2d, tively, control.” 22 Am Jur Death, 189, p § by Beasley, Cottengim’s v Adams’ Admin- Appeals Administrator Kentucky stated: istratrix,1 Legislature for the possible reason no "There could be in the actions two to make a distinction which grow of the same state facts out both of which Legisla- think the directly the same victim. We affect personal local making the venue ture in § county in limiting it to 'the injury action resides, cer- injury done’ in which defendant personal well tainly death as as intended to include is done’.” injury phrase in the 'in which contain Our death statute2 specific provision. Therefore, forum for control venue statutes the defendants are action. Oakland respectively and established and where resident occurred, is where venue fact laid.3 The *7 ipso Wayne County not, facto, make died in forum for the action. County.4 Venue I the trial court did not would hold that granting motion for err in defendants’ Therefore, trial to affirm the venue.5 I would vote court’s ruling._ 1953). 637, 638; App, (Ky also 1 255 See SW2d 36 ALR2d (Fla 1979), Service, Kivenas, App,

A-1 Nagy Inc v Truck So 2d (Common Pleas, Swann, Ops 56 Ohio 10 Ohio 3d Misc 1978). 600.2922; 2 MCL MSA 27A.2922. 27A.1627, 27A.1621, 600.1627; 600.1621; MSA 3 MCL MSA MCL (1975). Doe, 465, 467; Hunter v 4 Id. Bros, Industries, 696, 699; Shock Inc v Morbark NW2d 722