Kik v. Sbraccia
726 N.W.2d 450
Mich. Ct. App.
2007
Check Treatment

*1 App 388 388 KIK v SBRACCIA April 25, Lansing. Docket No. 256419. Submitted at Decided 10, 2006, appeal sought. October at 9:05 a.m. Leave to Kik, individually personal corepresenta- Rebecca and as Robert and daughter, Kik, brought tives of of their the estate deceased Sharon Chippewa against an John-Christopher action in the Circuit Court EMS, Township Charter Kinross and Kinross Charter Township. township by township A ambulance em- driven EMS ployee transporting Kik, overturned Sbraccia while Rebecca who pregnant. prematurely Kik Sharon was born and the died day. plaintiffs sought damages, including damages same The for society companionship daughter the loss of and the of their and damages for Kik’s loss of Robert consortium with Rebecca Kik. partial summary disposition, The defendants moved contend- ing plaintiffs’ that the for loss of and consortium by governmental court, immunity. the like were barred The Lambros, J., motion, Nicholas J. denied the and the defendants appealed. Appeals, EJ., The of Court and and Sawyer O’Connell, JJ., regard against affirmed with to all claims Sbraccia Murphy, regard plaintiffs’ society and with to the claims for loss of companionship, given wrongful that the action awas death action. regard loss-of-consortium-type against With to Robert township township EMS, however, panel the the the reversed required holding because it was to followthe in Weschev Mecosta App (2005), damages Co Rd 274 loss brought consortium are not recoverable in an action under MCL immunity. the motor-vehicle to panel The ordered the trial court to enter order on remand granting summary disposition to the obligated EMS on those claims. Had it not been to follow however, would have concluded that MCL 691.1405does right not limit recover for derivative such (2005). App as a claim for consortium. 268 Mich The Appeals special panel Court of convened a to resolve the conflict part prior between this case and Wescheand III of vacated its this case. Mich KikvSbraccia Opinion of the Court Appeals special panel, the Court After consideration held,-. in this case. The prior panel correct conclusion reached the The case, prior opinion analysis in this reasoning right does not limit MCL 691.1405 concluded that which *2 arising loss-of-consortium-type from a damages claims for recover adopted Part III of the Wesche bodily injury, and reinstated. opinion is overruled. Summary disposition case remanded. order vacated and adopt part EJ., dissenting, instead would provide an does not hold that MCL 691.1405 Wesche immunity governmental for loss-of-consortium exception to bodily injury from his Kik’s claims arises of Robert claims. None required damage, under a narrow construction as they statutory exception. are instead derivative Because injuries, court erred the trial from Rebecca summary disposition denying EMS on these claims. Exception —Loss Immunity Consortium. Vehicle —Motor

Governmental immunity governmental does not The motor vehicle damages such as right for derivative to recover limit the (MCL injury consortium, bodily arising from a for loss of 691.1405). Petrucelli, Waara), L. (by Jonny & P.C. Petrucelli plaintiffs. L. Henn Roegge (by Rice & William Haughey Smith Bickel) for the defendants. and Mark P. SMOLENSKI, CAVANAGH, WILDER, EJ., and

Before: Borrello, Schuette, Zahra, Hood, Fort JJ. BORRELLO, convened to panel conflict was J. This portion of inconsistency the vacated between resolve Mich in Kik prior opinion Court’s (2005) (Kik I), vacated 708 NW2d App earlier (2005), and this Court’s App Comm, 267 Mich Rd v Mecosta Co decision Wesche (2005). In accordance with 274; 705 NW2d 136 App 272 Opinion of the Court 7.215(J)(1), panel MCR in Kik I required precedent Wesche, follow the which held that loss-of- consortium claims are not included in the motor-vehicle exception to governmental immunity found MCL 691.1405 and that such claims were therefore barred governmental immunity. Were it not for Wesche 7.215(J)(1), MCR panel in Kik I would af- have firmed the decision of the lower court that derivative claims were available in an action brought pursuant to the motor-vehicle exception, MCL 691.1405.

The conflict at issue involves whether damages for derivative claims such as loss of consortium are avail- able in brought pursuant actions to the motor-vehicle exception. MCL 691.1405. In a of this Court held that because loss-of-consortium claims do not encompass bodily injury or property damage, they are not included in the motor-vehicle exception to immunity. Wesche, supra at 278-279. *3 Therefore, this Court affirmed the trial ruling court’s plaintiff the wife’s loss-of-consortium claim was by governmental barred immunity. Id. at 279-280. In I,Kik this Court held that panel’s the decision in Wesche was inapplicable wrongful to cases, death I,Kik supra at 706-707, n therefore, Wesche did not apply plaintiffs’ to claim for loss of society and compan- ionship for the death of their daughter. However, the in Kik I concluded that the claim for loss of consortium brought by plaintiff husband against defen- dants Kinross Charter Township and Kinross Charter (but Township EMS not the driver of the ambulance, individually), relating injuries to the suf- fered by plaintiff accident, wife in the did fall squarely within scope the of Wesche. Id. at I, 707. In Kik panel opined “that Wesche was incorrectly decided” and 7.215(J) stated that “were we not obligated by MCR to Kik v Sbraccia Dissenting by Opinion E J. conclu- reach a different Wesche, we would follow it was con- However, because at 711. ...Id. sion followed 7.215(J), this Court MCR do so strained summary denial of the trial court’s reversed and Wesche claim husband’s regarding plaintiff disposition and injuries wife’s out of his arising consortium entry of court for to the trial the matter remanded and the in favor summary disposition claim. Id. at 711-712. on that township’s EMS of the analyses Following due consideration conflict issue regarding viewpoints competing in accordance I, the conflict Kik we resolve Wesche are persuaded in Kik I. opinion We panel’s with Kik I opinion reasoning part the panel’s there- as our own. We reasoning analysis its adopt III of the panel’s part and reinstate expressly adopt fore III of the Wesche in Kik I and overrule opinion. granting its order the trial court to vacate direct

We in favor summary disposition husband’s plaintiff respect EMS with township’s wife’s of consortium claim loss injuries. con- proceedings for further and remanded

Vacated jurisdiction. retain do not opinion. with this We sistent JJ., concurred and Fort Hood, Smolensk, Cavanagh, J. Borrello, with dissent. We respectfully (dissenting). PJ. We WILDER, decision Wesche III of this Court’s adopt part

would 278-280; Rd Mecosta Co does not 691.1405 (2005), and hold that MCL NW2d *4 immunity governmental provide claims. loss-of-consortium 272 MICH APP

Dissenting Opinion EJ. statutory review de novo issues of interpretation. We Creek, 611, v 614; Stanton Battle 466 Mich 647 NW2d The rule primary statutory interpreta- to give tion is effect to the intent of the Id. Legislature. task, at “To this 615. achieve we must first examine the If the language. language statute’s is clear and unam- biguous, we the Legislature plain assume intended its meaning, and the statute is enforced as Id. written.” (citation omitted). In determining govern- whether a entity tort, mental is in principle liable we follow the immunity governmental that “the conferred upon agen- broad, cies and the statutory exceptions thereto are to narrowly be construed.” v Nawrocki Macomb Co Rd (2000) 143, 158; 463 Mich 615 NW2d 702 in (emphasis original). “ [g]overnmental

Pursuant to MCL agen- cies shall be liable for bodily injury and dam- age resulting the negligent operation by any officer, agent, employee or agency, case, of a motor vehicle . ...” In plaintiffs alleged in Rebecca Kik a pregnant passen- ger in an being ambulance driven defendant Sbraccia and that his negligent grossly negligent operation of ambulance, in resulting accident, a rollover caused plaintiff Rebecca Kik to be “thrown about the back of ambulance, sustaining injuries which subsequently resulted the premature birth and death of her daughter....” Plaintiffs sought recovery also for a number including of consor- tium and society loss of and companionship. noted Wesche,

As since 1960, at least loss of consortium has been a separate construed as cause of action at Michigan. 279, supra citing Wessels Inc, Way, Garden 689 NW2d “ (2004). However, claim ‘[a] of loss consortium is *5 KlK V SBRACCIA Dissenting Opinion by E J. injured contingent upon recovery derivative ” Id., injury.’ recovery spouse’s 88, 94; Corp, K mart Berryman quoting Thus, loss-of-consortium 483 NW2d 642 damage, or but bodily injury property encompass do not spouse’s from the damages deriving other encompass Robert by plaintiff claims asserted injury. None from his defendants arises against Kik rather, they are damage; bodily injury plaintiff Rebecca immu- Therefore, because the injuries. a under in MCL nity exception provided Robert construction, not apply does narrow conclude that claims, we would Kik’s loss-of-consortium defen- denying court erred the trial summary disposition. partial motion for dants’ WILDER, EJ. SCHUETTE, JJ., concurred with Zahra.