SUMMARY

Michigan law has a statute governing when someone can sue as a result of a “wrongful death”. All claims under this statute are brought by the Personal Representative of the decedent’s Estate after it is opened in the Probate Court. There are very few situations (dramshop claims and no fault PIP claims are the primary exceptions) where family members can bring a suit in their own name for damages suffered.

The Death statute defines who can collect damages for a death. The class of “Interested Persons” includes basically immediate family members, heirs under a will and children of a spouse. The class isn’t necessarily logical, so the family needs to consult it when a death occurs. Unlike the OJ Simpson case in California, normally only one death claim can be brought to court and the P.R. of the Estate must represent everyone who suffered a loss.

Suit can normally be maintained for all economic losses suffered by reason of the death and for non-economic losses to the maximum of any “cap” that may apply. Non-economic damages are essentially the “loss of the society and companionship of the decedent” during the time the Interested Person would have expected to share with the decedent.

Money recovered by the Interested Persons is normally not available to satisfy creditors of the decedent. “Final expenses” for funeral and burial have priority of payment under the Act.
 

________________________________


WRONGFUL DEATH

The wrongful death act

When someone dies as the result of another person’s wrongful conduct, the potential civil liability of the wrongdoer is defined by statute. Sometimes this statute must be interpreted in conjunction with other laws addressing the particular behavior of the wrongdoer. In other words, one must take into account the wrongful death act and the no fault act or the medical malpractice statutes or the product liability or dramshop acts, to name several sources of liability.

For starters, it must be emphasized that no one is responsible for a death if they are not guilty of some form of wrongful conduct. For example, a lay person who responds to an emergency and accidentally causes a death is probably not responsible for the consequences of his or her rescue attempt, even if it is unsuccessful due to a mistake of the rescuer. That can be true for so-called Good Samaritan professionals, as well.

Compensatory or punitive damages

Michigan almost never imposes punitive damages for a wrongful death. While some states allow punitive damages in an attempt to deter dangerous behavior, Michigan law has long rejected that approach in all but a handful of situations. Normally, Michigan allows only “compensatory” damages for injuries and wrongful death.

Except in the case of the dramshop act (the act governing liability of alcohol sellers), all wrongful death actions must be pursued by the Estate of the decedent, through the Personal Representative. Only under the dramshop act does Michigan allow the individual family members of the decedent to bring a direct action such as is allowed in California, for example. Thus, it would be exceedingly unusual in Michigan to see a situation such as occurred in the “OJ” cases where there are multiple actions by various family members against the same wrongdoer. In Michigan, the Estate must act on behalf of the entire family in a single action. Because the Estate must combine all family members’ claims into a single action, there are due process and notice requirements and the Personal Representative and his or her attorney owe a fiduciary duty to surviving family members who are called “Interested Persons”..

The statute defines which persons can recover damages when there has been a wrongful death. Basically, damages can be broadly defined in three general categories:

damages to the Estate for the person’s suffering before death and for the medical, funeral and burial expenses;

damages suffered by the decedent’s dependents for loss of support in the form of lost wages or other “tangible things of economic value” including domestic services; and,

damages collectible by the immediate family or beneficiaries under the will for loss of the society and companionship of the decedent.

Society and Companionship

While economic damages are fairly straight-forward and subject to measurement, non-economic damages are more vague and difficult to evaluate. As a general rule, they are quantified by the jury after recommendations are made by the adversary attorneys. The attorneys are not allowed to provide them with examples of recoveries in other legal cases. Also, there are no formal “yardsticks” by which non-economic damages are measured, although under certain statutes there are “caps” on the amount of non-economic damages. These caps may vary by the type of cause of action and are frequently indexed to inflation.

The jury is usually informed that it should take into account two basic factors in assessing the loss of the society and companionship of a decedent. The first factor is the “closeness” of the relationship between the survivor and the decedent. This includes both their legal relationship and the factual ties between them. In other words, it a question of consanguinity, but also a question of how often they saw each other and how much the decedent will actually be missed. For example a sibling who lived under the same roof as the decedent might be expected to suffer a greater loss than a sibling who had moved away decades before and rarely had contact.

The second factor which the jury must consider is the amount of time which the premature death has denied to the survivor. A decedent’s grandparent who has a life expectancy of only ten years, for example, would not normally recover as much damages as would a sibling who enjoyed the same quality of relationship, but who would have been expected to enjoy the companionship of the decedent for sixty years. This measurement is calculated using the statistical life expectancy of the survivors and the decedent, normally.

Allocation

If a cases is “settled” before trial, the family members still have the right to a formal decision by the court with regard to allocating the damage recovery among family members or “Interested Persons”. They also have the right to be represented by independent counsel.

We have found that we can usually achieve agreement among family members on how death recoveries should be shared. We believe that every effort should be made by the Estate’s attorneys to assure that a death recovery does not foment a public battle among the Interested Persons. Sometimes agreement cannot be achieved due to divorce or other problems that preceded the death, however, we have found that even in this situation, with careful planning a procedure for allocating the recovery through private arbitration or mediation can be accomplished. Most families ultimately prefer this form of resolution if possible.

Minor family members

When there are minor children who should share in the recovery, the Courts have established certain procedures which must be followed to protect their interest. First, a knowledgeable adult who is independent and has no interest in the recovery must be appointed to represent them. If the children are similarly situated, we do not usually need to appoint separate representatives for each child: usually we can appoint one representative for the entire class. This is also true if the recovery is quite limited and we are making a legitimate effort to minimize the legal expenses. Some courts will allow us to select an experienced attorney to serve in this capacity, and some of our peers work with us to keep expenses to a bare minimum where, for example, there is only a very small insurance policy. Other courts, fearing collusion, insist upon making an independent appointment to represent the minor(s). Unfortunately, this also has a negative impact on our ability to control expenses.

Economic Losses

While they are much simpler to compute and less open to interpretation and argument, economic damages are not always clear-cut. For example, when a car is involved, the measure of lost earnings is “tangible things of economic value” and wages may be computed based on the decedent’s actual earnings history. In most other situations, the court is guided by the “earning capacity” of the decedent. For an unemployed or underemployed student or houseparent, for example, earning capacity may be a much more reasonable measurement.

Usually, there is also a great deal of argument with respect to how domestic services should be valued. Many insurance companies try to divide the decedent’s normal life into very small segments and tasks, and then compensate the family only on the basis of those tasks, as though a replacement could be hired to help the survivors only on an as-needed basis. The insurers might argue, for example, that a mother spent only 5 hours in an average day, total, in getting children off to school, preparing three meals, washing clothes and putting the children to bed at night, even though it would be impossible to hire someone to make several trips to the home to fulfill these various tasks throughout the day.

The wrongdoer may also receive a credit for any personal injury protection benefits, workers compensation, wage continuation or Social Security benefits payable to the family as a result of the death. In some situations, the entity paying these benefits may also be legally entitled to claim a lien on any litigation recovery. Where the law allows such a lien, the insurer or government entity usually has the right to be re-paid first, before the family receives compensation. In practice, we can usually negotiate an arrangement to share the recovery and the legal costs and fees. Most health insurers have a similar lien right written into their insurance contracts with the family or the employer.