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.tion.

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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

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

Statutes of Limitation

Whenever the law grants a right to seek recovery for wrongdoing, it also places restrictions on how long the victim has in which to take legal action. If the victim delays too long in seeking compensation, he is said to have "slept on his rights" and his claim will not be heard. These limits are called "statutes of limitations" and they vary depending on the nature of the wrong that was committed. In many cases, there are other limitations on taking legal action, as well.

You can review the time limits here.