Michigan Wrongful Death Case FAQs
When someone is killed in a car accident, due to another driver’s negligence, it is called a wrongful death. Michigan law allows a cause of action to be brought on behalf of family members of the deceased. A claim may potentially be brought on behalf of anyone who depended upon the deceased for legal support. Therefore, when someone’s death is caused by the negligence of another, any ensuing legal claim is known as wrongful death claim.
Michigan Wrongful Death Lawyers answer Frequently Asked Questions:
When a person has been killed in an automobile accident caused by the negligence of another, there are specific legal recoveries that are not applicable in other personal injury cases. This process can understandably be confusing both for families grieving after the loss of a loved one, and for lawyers unfamiliar with litigating a wrongful death lawsuit. There are also specific laws and statutes that apply and must be followed by any lawyer bring a wrongful death claim. Depending on how the death was caused, there are also important notice provisions that must be complied with or any potential wrongful death claim could be barred. Here are answers to some of the most frequently asked questions regarding a wrongful death cause of action in Michigan:
- Is a wrongful death claim on behalf of someone killed in a car accident that occurs in Michigan different from a wrongful death claim that can be brought in other states?
- Are claims that can be brought following a wrongful death caused by a motor vehicle accident different from claims for injury caused by automobile accidents?
- What about other types of wrongful death claims?
- Are there additional procedures and laws that a lawyer must follow after a wrongful death case that do not apply in ordinary automobile accident and injury cases?
- Who can bring a lawsuit on behalf of someone killed in a car accident?
- How long do I have to hire a lawyer after a family member or loved one has been killed in a car accident in Michigan?
- What types of legal relief are available on behalf of the surviving family and estate of someone killed in an automobile accident in Michigan?
- Are there additional legal rights and legal remedies available to children whose mother or father has been killed in a car accident in Michigan?
- What is Michigan’s Wrongful Death Damages jury instruction?
- How old can a child be in Michigan to recover compensation for a parent killed in a car accident?
- Is a wrongful death claim limited for a parent who has lost a child in an automobile accident in Michigan?
Q. Is a wrongful death claim on behalf of someone killed in a car accident that occurs in Michigan different from a wrongful death claim that can be brought in other states?
A. Yes. Michigan is a no fault law state. Therefore the legal remedies available following a wrongful death caused by a car accident are different than other states without no fault. A wrongful death caused from an automobile accident is limited in Michigan in part due to the constraints of the Michigan No Fault Act.
Q. Are claims that can be brought following a wrongful death caused by a motor vehicle accident different from claims for injury caused by automobile accidents?
A. Yes. When someone has been killed in a car accident as the result of another person’s carelessness or negligence, there are additional legal claims that will be available to the family and loved ones of a person who was killed that are not available to people who have suffered serious injury. The Michigan Legislature has intended these additional remedies to help families and loved ones of those killed in car accidents.
Q. What about other types of wrongful death claims?
A. A wrongful death claim caused by an automobile accident is only one type of claim that can fall within the scope of the Michigan Wrongful Death Act, but there are many others as well. Different laws and notice provisions will apply depending upon how the decedent was killed.
Q. Are there additional procedures and laws that a lawyer must follow after a wrongful death case that do not apply in ordinary automobile accident and injury cases?
A. Yes, a wrongful death case, whether caused by an automobile accident or another type of accident, will almost always involve probate proceedings. The probate process is a frequent source of confusion for personal injury lawyers and family members. Many personal injury lawyers do not fully understand the probate process. It is always recommended that an attorney helping a family after a wrongful death caused by a motor vehicle accident work with an attorney specialized in probate law to ensure that all necessary procedures are followed.
Failure to properly set up an estate or to give proper notice to relatives of a person killed in an underlying wrongful death claim will delay and even jeopardize the settlement of a death claim.
Q. Who can bring a lawsuit on behalf of someone killed in a car accident?
A. Michigan law allows a spouse, children, grandparents and other relatives to serve as a legal representative in a wrongful death lawsuit.
The person who is appointed is referred to as the personal representative of the estate in a wrongful death lawsuit.
Some states are more restrictive on who may serve as a personal representative. For example, some states do not allow recovery to children.
Q. How long do I have to hire a lawyer after a family member or loved one has been killed in a car accident in Michigan?
A. There are strict time frames that Michigan accident lawyers must observe to file a lawsuit after a wrongful death. Therefore, a personal injury lawyer must be hired before the period of time to file a lawsuit, also known as the statute of limitations, expires. The period of time for deaths caused by automobile accidents is generally three years, but there are important exceptions to this rule.
The time frame will vary depending on the type of case that can be brought. For example, a wrongful death claim for medical negligence has very different time requirements compared to a wrongful death claim following a motor vehicle accident. These time and notice requirements must be followed or the right of the estate to receive legal compensation for a wrongful death will be extinguished. The failure to observe these time frames will result in the underlying cause of action being lost forever. Determining how long a family will have to hire a lawyer will therefore depend on who the eventual defendant will be and the cause of action that can be brought.
In wrongful death claims caused by motor vehicle accidents in Michigan, the answer can still vary depending on if a lawsuit can be brought on behalf of the decedent’s own automobile insurance policy. Many people have additional auto insurance coverage that includes uninsured and underinsured motorist protection in an insurance policy. The time limitations for these additional contractual can be shorter than the time to file a lawsuit against the negligent driver.
It is strongly recommended you talk to a Michigan personal injury lawyer who specializes in handling serious injury and death cases so crucial legal rights are not inadvertently extinguished forever.
As mentioned above, the general statute of limitations in Michigan after injury or death in a motor vehicle accident is three years from the date of the accident. However, there is a recent case in Michigan called Eggleston that may have modified this time period. At the time of this writing there are important unanswered questions, such as whether Eggleston will remain good law in Michigan or whether it will be modified or reversed in the future. It is therefore strongly recommended that you contact and discuss any potential wrongful death case with a Michigan personal injury lawyer experienced in handling wrongful death automobile accident cases as soon as possible after the death occurs.
Q. What types of legal relief are available on behalf of the surviving family and estate of someone killed in an automobile accident in Michigan?
A. The Michigan Legislature has clearly intended that the Michigan Wrongful Death Act be liberally construed. The pertinent language of the Wrongful Death Act reads as follows:"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 person 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." See MCLA 600.2922(6); MSA 27A.2922(6).
In addition, the Michigan Wrongful Death Act is part of the Revised Judicature Act (RJA) of 1961. §102 of the RJA states as follows:
"This Act is remedial in character, and shall be liberally construed to effectuate the intents and purposes thereof.”
The Michigan Supreme Court has interpreted the Michigan Wrongful Death Act in in Wood v Detroit Edison Co as follows: "Finally, the wrongful death act is part of the Revised Judicature Act. The Legislature has provided that the RJA is remedial in character and should be liberally construed." MCL 600.102; MSA 27A.102. Wood v Detroit Edison Co, 409 Mich 279, 295 (1980).
Therefore, damages recoverable in a wrongful death lawsuit as a result of an automobile accident in Michigan are not to be limited and strictly construed. Lawyers filing a wrongful death lawsuit are encouraged to use an expansive interpretation of all claims that can be asserted for legal damages and pain and suffering on behalf of an estate.
The Michigan Legislature could have easily limited the damages recoverable to those enumerated in the Wrongful Death Act by using wording such as "including, but expressly limited to" but it did not and neither should Michigan lawyers representing families of those who have been killed in car accidents.
Ultimately, then, claims for damages following a wrongful death lawsuit will always depend upon the skill, creativity, and intelligence of the lawyer handling the claim. The Michigan legislature purposely used broad, expansive language such as "...may award damages as the court or jury shall consider just and equitable, under all the circumstances including ..."
Q. Are there additional legal rights and legal remedies available to children whose mother or father has been killed in a car accident in Michigan?
A. Yes, and this is an area where the experience and skill of the personal injury attorney helping the child who has lost a parent is important as the legal remedies available to children are not specifically enumerated in the Michigan Wrongful Death Act. Whether a wrongful death claim is brought, and what types of damages can be requested and recovered on behalf of a child who has lost a parent will depend upon the skill of the personal injury attorney hired to help the estate.
Q. What is Michigan’s Wrongful Death Damages jury instruction?
A. The Michigan Supreme Court's Standard Jury Instruction Committee has drafted a jury instruction creating additional legal relief that can be requested under the Michigan Wrongful Death Act.
This instruction, approved by the Michigan Supreme Court, implements the legislature's intent to broadly construe the damages allowable under the Wrongful Death Act. SJI2d 45.02 entitled "Wrongful Death – Damages."
This jury instruction permits a jury in a wrongful death case to consider awarding damages in addition to those specifically described in the Michigan Wrongful Death Act, including "loss of gifts or other valuable gratuities" and "loss of parental training and guidance."
In addition, the drafters of the instruction left two blanks after "loss of society and companionship." These blanks are to include other elements of damages and loss that can be recovered on behalf of an estate. The Committee's comment indicates:
"Where appropriate, elements of damages such as those listed in M Civ JI 50.02 may be inserted into this instruction. See Taylor v Michigan Power Co., 45 Mich App 453, 457; 206 NW 2d 815, 818 (1973)."
In Taylor v Michigan Power Co., 45 Mich App 453 (1973), the Court of Appeals held it was appropriate for the trial judge to add the words "mental anguish", "fright", and "shock" to the wrongful death jury instruction on the issue of conscious pain and suffering prior to death. The Court specifically held that the Wrongful Death -- Damages jury instruction "can be expanded to include applicable elements from SJI 30.02 which provides among other elements for mental anguish, fright, and shock." Taylor, supra at 457.
Q. How old can a child be in Michigan to recover compensation for a parent killed in a car accident?
A. Many times insurance lawyers defending a wrongful death case in Michigan will cite to a case called Setterington when attempting to limit the damages available in a wrongful death settlement or trial. See Setterington v Pontiac General Hosp, 223 Mich App 594 (1997). In fact, the holding in Setterington liberally construed the damages available under the Wrongful Death Act for children. In Setterington, the defendants claimed that economic losses sustained by the plaintiff's decedent's children should be limited to those losses incurred prior to the child’s eighteenth birthday. The Setterington Court rejected this argument, refusing to put any limitations the language enumerating what damages are available to survivors under the Michigan Wrongful Death Act, stating:
“The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. The first criteria in determining intent is the specific language of the statute. If the language is clear and unambiguous, judicial construction is neither required nor permitted. “
Q. Is a wrongful death claim limited for a parent who has lost a child in an automobile accident in Michigan?
A. No (at this time). Parents who have lost a child due to another’s negligence may face defense arguments to limit wrongful death damages based on the age of a child that was wrongfully killed in a car accident in Michigan. Lawyers defending wrongful death automobile accident cases in Michigan have recently tried to limit the period of time that parents can recover for the wrongful death of a child.
These efforts have been rejected by the courts in Michigan in recent years.
For example, in Thompson v Ogemaw Co Bd of Rd Comm'rs, the Michigan Supreme Court found the damages for pecuniary injuries suffered by the surviving parents of a minor child could extend beyond the child's minority.
The court stated: ‘We do not believe that the age of the child at death (whether before or after majority) is decisive as to consideration of loss of possible future support after the 21st birthday. Nothing in the Michigan statute suggests such a distinction...the language of the Judis and MacDonald cases suggests that the test is reasonable expectation of support rather than any particular age at the time of death.'
In Thompson, the jury awarded economic damages to one family member to the age of 20 and to another to the age of 22. The Court found that the plain statutory language permits recovery by the decedent's heirs of the loss of financial support without regard to age. Moreover, the ‘pecuniary injury' language of the statute construed in Thompson is analogous to the clearer ‘loss of financial support' language in the Michigan Wrongful Death Act. The Legislature is presumed to act with knowledge of appellate court statutory interpretations. [citations omitted]. Therefore, knowing the Supreme Court's interpretation, the Legislature chose not to include any language limiting damages for financial support to the time where children reach the age of majority." (Setterington supra at 606-607), (emphasis added).
This analysis of the statutory language should cause personal injury lawyers hired to represent families in wrongful death cases to oppose defense efforts to limit damages recoverable in traffic fatality and automobile accident death cases. By using the language "loss of financial support", the Michigan legislature has demonstrated no intent to limit the method of calculating economic damages. The legislature could be assumed to act with knowledge that economic damages in tort actions generally for loss of financial support are measured in terms of loss of earning capacity. If the Michigan legislature wanted to exclude damages for loss of earning capacity in wrongful death actions, it would have used language of exclusion, instead of the broad language it chose to use in drafting the damages section of the Michigan Wrongful Death Act.
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