DENNEY v KENT COUNTY ROAD COMMISSION
Docket No. 328135
Court of Appeals of Michigan
November 15, 2016
317 Mich App 727
Submitted October 4, 2016, at Grand Rapids. Leave to appeal denied 500 Mich 997.
Plaintiff, Kimberly Denney, as personal representative of the estate of her husband, Matthew M. Denney, brought an action in the Kent Circuit Court against defendant, the Kent County Road Commission, for Denney‘s wrongful death. Denney‘s death resulted from a motorcycle accident caused when his mоtorcycle hit two potholes on a road under defendant‘s jurisdiction. Defendant had a duty under
The Court of Appeals held:
1. Plaintiff‘s recovery of damages under the wrongful-death statute was limited by the damages available to Denney under the highway exception to the GTLA had he not died from the injuries he sustained in the motorcycle accident. Claims under the wrongful-death statute are derivative claims. The wrongful-death statute authorizes a representative of a decedent‘s estate to recover damages for claims the decedent would have had if the decedent had survived. In this case, plaintiff, as the representative of Denney‘s estate, was entitled to recover damages to which Denney would have been entitled under the highwаy exception to the GTLA if his death had not resulted from the wrongful act, neglect, or fault of defendant. Therefore, the resolution of this case rested on which damages recoverable under the wrongful-death statute were also recoverable under the highway exception to the GTLA.
2. The direct distribution of damages to the beneficiaries of a decedent‘s estate does not prevent or otherwise affect a plaintiff‘s claim under the wrongful-death statute for the decedent‘s lost earnings. Lоst earnings constitute damages naturally flowing from the bodily injury sustained by the decedent, and the decedent, had he or she survived the bodily injuries, would have had a claim for those lost earnings. The fact that the damages might be distributed directly to a beneficiary does not remove those damages from the purview of the wrongful-death act. That is, distribution of damages directly to a beneficiary does not change the nature of a claim.
Reversed and remanded.
Henn Lesperance, PLC (by William L. Henn), for defendant.
Amicus Curiae:
Johnson Law, PLC (by Christopher P. Desmond), for the Negligence Law Section of the State Bar of Michigan.
Before: SHAPIRO, P.J., and HOEKSTRA and SERVITTO, JJ.
PER CURIAM. Plaintiff appeals by leave granted the trial court‘s April 29, 2015 order granting defendant‘s motion for partial summary disposition under MCR 2.116(C)(7). We reverse and remand to the trial court for further proceedings consistent with this opinion.
Plaintiff alleged that on the morning of May 18, 2014, Matthew Denney (the decedent) was riding a motorcycle on Peach Ridge Road NW in Kent County. As he crested a hill, his motorcycle struck two potholes in the road, causing him to lose control of the motorcycle. He sustained fatаl injuries. For purposes of this appeal only, defendant does not contest these allegations. There is also no dispute that defendant is a governmental agency with jurisdiction and control over the portion of the road on which the accident occurred and is therefore required to maintain that
agreed and granted defendant‘s motion. We granted leave to appeal that decision.2
“We review de novo a triаl court‘s grant or denial of summary disposition under MCR 2.116(C)(7).” Tarlea v Crabtree, 263 Mich App 80, 87; 687 NW2d 333 (2004). This Court also reviews de novo issues of statutory interpretation. PNC Nat‘l Bank Ass‘n v Dep‘t of Treasury, 285 Mich App 504, 505; 778 NW2d 282 (2009). The primary goal of statutory construction is to determine the intent of the Legislature by reasonably construing the purpose and goal of the statute. Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511, 515; 573 NW2d 611 (1998). To determine the Legislature‘s intent, this Court first looks at the specific language of the statutе. Gauntlett v Auto-Owners Ins Co, 242 Mich App 172, 177; 617 NW2d 735 (2000).
“[T]he wrongful death act provides the exclusive remedy under which a plaintiff may seek damages for a wrongfully caused death.” Jenkins v Patel, 471 Mich 158, 164; 684 NW2d 346 (2004). The wrongful-death statute states, in relevant part, as follows:
Whenever the death of a person, injuries resulting in death, or death as described in section 2922a shall be caused by wrongful act, neglect, or fault of another, and thе act, neglect, or fault is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages, the person who or the corporation that would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured or death as described in section 2922a, and although the death was caused under circumstances that constitute a felony. [
MCL 600.2922(1) .]
In every action under this section, the court or jury may award damages as the court or jury shall consider fair and equitable, under all the circumstances including reasonable medical, hospital, funeral, and burial expenses for which the estаte is liable; reasonable compensation for the pain and suffering, while conscious, undergone by the deceased
during the period intervening between the time of the injury and death; and damages for the loss of financial support and the loss of the society and companionship of the deceased. [ MCL 600.2922(6) .]
The word “including” in
As previously stated, the damages available under the wrongful-death statute,
deemed justified by the facts of the particular case.” Thorn, 281 Mich App at 651. And economic damages include “damages incurred due to the loss of the ability to work and earn money....” Hannay, 497 Mich at 67. Therefore, damages for lost earnings are allowed under the wrongful-death statute. However, as a governmental agency, defendant is immune from tort liability “when... engaged in the exercise or discharge of a governmental function,” unless an exception under the GTLA applies.
Plaintiff argues that the highway exception to governmental immunity permits her claim for lost earnings. It states in relevant part that “[a] person who sustains bodily injury or damage to his or her property by reason of failure of a governmental agency to keep a highway under its jurisdiction in reasonable repair and in a condition reasonably safe and fit for travel may recover the damages suffered by him or her from the governmental agency.”
not define the term “damage,” but “when the Legislature uses a word or phrase that has acquired a unique meaning at common law, it is interpreted to have the same meaning when
In Hannay, 497 Mich at 50-51, our Supreme Court was called on to determine whether the phrase “liable for bodily injury” in the motor-vehicle exception to governmental immunity (
Therefore, the legal responsibility that arises from “bodily injury” is responsibility for tort damages that flow from that injury. This conclusion is supported by the fact that the GTLA generally grants immunity from “tort liability,” and to the extent that this immunity is waived, the resulting liability, logically, is liability for tort damages. [Id. at 64-65.]
The Hannay Court continued,
[T]ort damages generally include damages for all the legal and natural consequences of the injury (i.e., the damages that naturally flow from the injury), which may include damages for loss of the ability to work and earn money, as well as pain and suffering and mental and emotional distress damages. [Id. at 65
The Court therefore held that a plaintiff may bring a third-party tort action for economic damages, such as
work-loss damages, and for noneconomic damages, such as damages for pain and suffering or emotional distress, against a governmental entity if the requirements of the no-fault act have been met. Id. at 51. See
This Court stated, “[s]o far as [the highway exception] is concerned, it limits the liability to cases of bodily injury,” and concluded that:
The plaintiff‘s case [for loss of consortium] does not fall within [the highway exception] (1) because he has no right to recover for the bodily injury—i.e., pain and suffering, etc—of another; (2) because the statute in terms limits the recovery to the person so injured or disabled. [Hannay, 497 Mich at 71, quoting Roberts, 102 Mich at 67 (first, second, and fourth alterations in original).]
“‘[B]odily injury’ in the motor vehicle exception is not a threshold requirement that opens all doors of potential liability for tort damages; rather, it is a category of injury for which items of tort damages that naturally flow are available, as confined by the limitations of the no-fault act.” Hannay, 497 Mich at 75.
What is taken from Hannay is that (1) the tort damages recoverable for
person suffered and (2) the types of tort damages are confined to the limitations of the statute under which the action is brought—the wrongful-death act in this case. Put another way, under
When the decedent lost control of his motorcycle on May 18, 2014, he clearly suffered “a physical or corporeal injury to [his] body“—in other words, he suffered a bodily injury. Wesche, 480 Mich at 84-85. Therefore, if the decedent had not died, he would have been able to recover under
maintained an action against defendant for lost earnings resulting from the bodily injury he sustained on May 18, 2014. Because plaintiff was able to bring this derivative claim under the wrongful-death statute,
Defendant argues that plaintiff‘s claim for damages for lost earnings does not fall under the highway exception to the GTLA because
Defendant attempts to characterize plaintiff‘s claim as one for lost financial support and argues that because а claim for lost financial support can be brought under the wrongful-death statute by beneficiaries of the estate, this claim is not one for damages suffered by the decedent. Rather, defendant contends that plaintiff‘s claim is for damages suffered by the estate‘s beneficiaries and is therefore not allowed under
However, a claim for lost financial support under the wrongful-death statute is not the same as a claim for lost earnings. Specifically, lost earnings are damages that the decedent could have sought on his own behalf had he lived, whereas damages for lost financial support would be sought by one who depended on the decedent for financial support. See, e.g., id. Because the damages are distinct, the fact that the wrongful-death statute allows for recovery of lost financial support dоes not change the character of plaintiff‘s claim for damages for the decedent‘s lost earnings.
Finally, defendant argues that
We reverse the trial court‘s order granting defendant‘s motion for partial summary disposition and remand the case for proceedings in accordance with this opinion. We do not retain jurisdiction.
SHAPIRO, P.J., and HOEKSTRA and SERVITTO, JJ., concurred.