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No Loss of Consortium Claim when Michigan Car Accident is Caused by Government Employee

April 11, 2008 by Steven M. Gursten

On April 3rd, 2008, the conservative, 4-justice majority of the Michigan Supreme Court, referred to as the “Gang of Four” by many Michigan personal injury lawyers, wiped out all lawsuits and legal claims based on consortium in any car accident caused by government employees. Parents, children and spouses are now barred from making any claim for loss of society, companionship, or consortium for the injury or death to a loved one if the car accident has been caused by a governmental employee. This terrible decision is still limited to lawsuits against a governmental entity based upon the negligence of a governmental employee in causing a motor vehicle accident. Michigan lawyers can still bring a loss of consortium claim for personal injury or death to a parent, spouse or child after car accidents not been caused by a governmental employee.

Wesche v. Mecosta County Road Commission:
The decision, Wesche v. Mecosta County Road Commission was authored by Justice Corrigan, the same justice who has ironically called herself a “champion of children,” despite authoring such previous travesties as Cameron v. ACIA. Justice Corrigan ruled in Wesche that the parents of an unborn child killed in a car accident caused by a negligent driver employed by the government, cannot recover anything for the loss of society and companionship of their child.

Negligent Government Drivers are Now Immune:
Justices Corrigan, Young, Markman and Taylor have decided that the government is now immune. The decision wipes out all loss of consortium claims for any injury or death to any parent of a child caused by a car accident involving a negligent governmental employee. Consortium claims will continue to be a viable claim for legal recovery in car accidents not involving governmental employees.

No Legal Logic:
In her decision, Corrigan denies these and future parents any legal relief by finding that a consortium claim is “an independent, albeit derivative claim.” How a claim can be both independent and derivative is devoid of any legal logic. It is like calling a woman pregnant, albeit not pregnant.

The opinion next says that since a loss of consortium claim is neither a legal claim involving bodily injury nor property damage, and therefore, loss of consortium is no longer a claim that will be allowed under the motor vehicle exception to government immunity under Michigan law.

Lesson for Michigan Car Accident Lawyers:
All claims for consortium, including claims made by lawyers on behalf of children for the loss or serious injury of a parent, and any legal claim made on behalf of a spouse for injury or death of a loved one, in any car accident caused by a governmental employee, is now wiped out.

What is the Motor Vehicle Exception to Governmental Immunity?
This decision is based upon the motor-vehicle exception to governmental immunity, found in MCL 691.1405, which allows lawyers to bring a claim on behalf of a person injured in any motor vehicle accident against a governmental agency. The motor-vehicle exception under Michigan law permits recovery of personal injury damages for “bodily injury caused by a motor vehicle accident.”

The Michigan Supreme Court has now found that a loss of consortium is not a physical injury to the body. Moreover, by finding that any claim for loss of consortium is “independent, albeit derivative,” the Court has ruled that the government is now immune from any such claim based upon the motor-vehicle exception.

Michigan Wrongful Death Act: No Longer Permits Claims against Government Agency
In the companion case that was decided alongside Wesche, the four-justice majority also determined that the Michigan Wrongful Death Act, found in MCL 600.2922, no longer permits a loss of consortium claim against a governmental agency.

The availability of a wrongful death action hinges on whether the injured party would have been entitled to maintain an action and recover damages had a death not ensued. Because the motor vehicle exception would not have permitted plaintiffs to pursue a loss of consortium claim if their daughter’s death had not ensued, the plaintiffs are also barred from pursuing such a claim in their wrongful death action on behalf of their daughter who was killed by the negligent driving of a governmental employee.

Only Exception – Gross Negligence:
The lone exception seems to be if a plaintiff can prove gross negligence, meaning willful and wanton, or reckless disregard on part of the Defendant. In such narrow and extremely difficult to prove circumstances, liability for loss-of-consortium damages still exists.

The truly sad thing about this case is that a decision as terrible and ridiculous as this one should be the lead story on the six o’clock news and the headline of every one of the following day’s newspapers.

The case is Wesche v. Mecosta County Rd. Comm’n. (Michigan Supreme Court) (Michigan Lawyers Weekly No. 06-66135 – 32 pages) (Corrigan, J., joined by Taylor, C.J. and Young and Markman, JJ.) (Weaver, J., concurring in part and dissenting in part, joined by Cavanagh, J.) (Kelly, J., concurring in part and dissenting in part, joined by Cavanagh, J.)

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