Opinion
SC: 161974 COA: 347274
11-05-2021
Douglas S. TOUMA, Personal Representative of the Estate of Garylyn S. Langell, Plaintiff-Appellee, v. MCLAREN PORT HURON, f/k/a Port Huron Hospital, Defendant-Appellee, and Physician Healthcare Network, PC, and Michael Paul, M.D., Defendants-Appellants, and Partridge Family Physicians, PC, and Timothy Horrigan, M.D., Defendants.
Order
On order of the Court, the application for leave to appeal the July 30, 2020 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
Viviano, J. (dissenting).
This Court has a largely discretionary docket. That means we have to exercise discretion in choosing the cases we hear. As the last word on Michigan law, we try to choose cases presenting complicated and far-reaching legal issues. And we are the only court that can determine whether our precedent has been overruled or superseded when the matter is in any doubt. See Associated Builders & Contractors v. Lansing , 499 Mich. 177, 191-192, 880 N.W.2d 765 (2016). Thus, when a case like this one comes along, posing a significant question of law in which the Court of Appeals has reached a conclusion seemingly at odds with our precedent, we should hear the case. Unfortunately, the majority today declines to do so, and therefore I must dissent.
The issue in this case is whether a decedent's estate may recover lost-earning-capacity damages under the wrongful death act (WDA), MCL 600.2922. The current version of the statute resulted from a merger of our older survival act and death act. See Hawkins v. Regional Med. Labs., P.C. , 415 Mich. 420, 430, 329 N.W.2d 729 (1982). Under the survival act, a decedent's claim survived his or her death and entitled the estate to whatever the decedent could have recovered. See Lincoln v. Detroit & M. R. Co. , 179 Mich. 189, 196, 200-202, 146 N.W. 405 (1914) ; McCormick, Handbook on the Law of Damages (1935), p. 336. Under the death act, by contrast, a cause of action was created for the survivors whom the decedent was obligated to support, limited to the losses they sustained due to the decedent's death. Baker v. Slack , 319 Mich. 703, 715, 30 N.W.2d 403 (1948).
In Baker , we addressed the present question under a prior version of MCL 600.2922(2), which stated in relevant part:
Every such action shall be brought by, and in the names of, the personal representatives of such deceased person, and in every such action the court or jury may give such damages, as, the court or jury, shall deem fair and just, with reference to the pecuniary injury resulting from such death, to those persons who may be entitled to such damages when recovered .... [1948 CL 691.582.]
We explained that the 1939 legislation merging the survival and death acts altered the damages previously available in actions under the survival act. Baker , 319 Mich. at 713, 30 N.W.2d 403. Subsection 2 of the merged statute (quoted above) "limits damages to," among other things, "what the court or jury shall deem fair and just with reference to pecuniary injuries to the surviving spouse or next of kin ...." Id. Accordingly, Baker held that the loss of "probable future earnings, without diminution for cost of maintenance," was not available under the statute. Baker , 319 Mich. at 711, 30 N.W.2d 403. The statute limited recovery to what the decedent would have owed as support to the plaintiff. Id. at 712, 30 N.W.2d 403.
The Legislature has made some changes to the WDA since Baker . As currently written, MCL 600.2922(6) allows the following damages:
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 estate 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.
Under this language, the Court of Appeals has found that lost-earning-capacity damages are allowed. See Denney v. Kent Co. Rd. Comm. , 317 Mich.App. 727, 896 N.W.2d 808 (2016). The prevailing theory in that case was relatively straightforward. As this Court has noted, MCL 600.2922 "permit[s] a decedent's estate to recover everything that the decedent would have been able to recover had she lived." Shinholster v. Annapolis Hosp. , 471 Mich. 540, 564, 685 N.W.2d 275 (2004). Accordingly, Denney held that if a decedent could have obtained lost-earning-capacity damages, then so can his or her estate through the WDA. See Denney , 317 Mich.App. at 731-732, 896 N.W.2d 808. Denney also noted that "[t]he word ‘including’ in MCL 600.2922(6) ‘indicates an intent by the Legislature to permit the award of any type of damages, economic and noneconomic, deemed justified by the facts of the particular case.’ " Id. at 731, 896 N.W.2d 808, quoting Thorn v. Mercy Mem. Hosp. Corp. , 281 Mich.App. 644, 651, 761 N.W.2d 414 (2008).
Denney ’s logic suggests that the damages available under the WDA generally reflect those available under the prior survival act. But we rejected that very conclusion in Baker . The question thus arises whether Baker remains viable law. This is a question only we can answer. See Associated Builders & Contractors , 499 Mich. at 191-192, 880 N.W.2d 765. Plaintiff argues that Baker focused on the term "pecuniary injury," which a later amendment replaced with the phrase "under all of the circumstances." 1971 PA 65. According to plaintiff, this amendment, together with Denney ’s reading of the word "including" in MCL 600.2922(6), undermines Baker .
For their part, defendants contend that the removal of the term "pecuniary injury" simply made clear that nonpecuniary damages, like loss of companionship, were available. On this point, defendants find some support in the statutory history. The removal of the term "pecuniary injury" came about as a result of our decision in Breckon v. Franklin Fuel Co. , 383 Mich. 251, 174 N.W.2d 836 (1970), overruled by Smith v. Detroit , 388 Mich. 637, 202 N.W.2d 300 (1972), which held that loss-and-companionship damages were not compensable under the WDA. Subsequently, the Legislature passed 1971 PA 65 in response to Breckon , specifically allowing for such damages. That amendment also replaced the phrase "with reference to the pecuniary injury" with "under all of the circumstances." 1971 PA 65. It is not clear that this removal reinstated the full scope of recovery available under the older survival act. Even after the 1971 amendment, we have stated that the "wrongful death act damages focus upon the financial loss actually incurred by the survivors as a result of their decedent's death." Miller v. State Farm Mut. Auto. Ins. Co. , 410 Mich. 538, 561, 302 N.W.2d 537 (1981). One present textual indication of this focus appears in MCL 600.2922(3), which states that "the person or persons who may be entitled to damages under this section shall be limited to any of the following who suffer damages and survive the deceased...." (Emphasis added.) See also MCL 600.2922(6)(d) (providing for the default distribution of proceeds, with the residuum after various expenses to go "to those persons designated in subsection (3) who suffered damages and to the estate of the deceased for compensation for conscious pain and suffering, if any, in the amount as the court or jury considers fair and equitable considering the relative damages sustained by each of the persons and the estate of the deceased."). This might be read to suggest that the individuals entitled to bring a WDA action must still themselves suffer damages.
In sum, the statute appears to contain a tension between allowing the same recovery the decedent would have obtained and limiting the recovery to losses sustained by the survivors. This case presents a significant and recurring question of law involving a complicated statute. Determining the statute's meaning requires a careful examination of its text in light of its lengthy history. And it requires our state's highest Court to determine whether Baker remains good law. That important question has not been addressed and it cannot be resolved until we take up this issue. I believe it is incumbent upon us to do so now. I therefore dissent.
It is true that we declined to review this issue when the defendants in Denney sought leave to appeal here. But the defendants did not address Baker until their reply brief in this Court and did not present the historical tensions in the statute that help to explain the potential conflict between Denney and Baker .
Zahra, J., joins the statement of Viviano, J.