Michigan Supreme Court delivers significant ruling in Wrongful Death Act

A Significant Victory for the Michigan Defense Bar:
The Michigan Supreme Court Holds that the Damages
Enumerated in the Michigan Wrongful Death Act are
Exhaustive and Puts to Rest Claims Seeking Damages
for Loss of Earning Capacity, Among Others

The Michigan Wrongful Death Act (“WDA”), MCL 600.2922, is a filter through which an underlying claim involving death may proceed. The damages available in an action under the WDA are enumerated in MCL 600.2922(6):

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. . . .

The statutory language—to be precise, the term “including”—has sparked debate over whether damages for loss of earning capacity are available in an action under the WDA. The debate has been longstanding and particularly spirited in the context of minor decedents, whose earning capacity is often inherently speculative.

The debate is finally over.

A trilogy of cases—Baker v. Slack, 319 Mich. 703 (1948), Denney v. Kent Count Road Commission, 317 Mich. App. 727 (2016), and Daher v. Prime Healthcare Services, 344 Mich. App. 522 (2022), rev’d., ___ Mich. ___ (2024)—forms the crux of the debate.

For the better part of seven decades, Baker reigned supreme. Interpreting the predecessor to MCL 600.2922(6), the Michigan Supreme Court held that damages for loss of earning capacity are not available in an action under the WDA.

Denney threw a wrench in the works. The Michigan Court of Appeals held that damages for loss of earning capacity are available in an action under the WDA. The Michigan Court of Appeals did not analyze or even make a passing reference to Baker, which left the bench and the bar grappling with whether Baker or Denney controlled.

Daher picked up where Denney left off. The Michigan Court of Appeals held that the amendment to the WDA superseded Baker, at least sub silentio, and that the decision in Denney controlled. Focusing on the insertion of the term “including,” the Michigan Court of Appeals reasoned that the amendment to the WDA established that the enumerated damages in the WDA are not exhaustive.

The Michigan Supreme Court disagreed, though. In a unanimous decision, the Michigan Supreme Court overruled Denney and upheld Baker, reaffirming that damages for loss of earning capacity are not available in an action under the WDA.

The Michigan Supreme Court acknowledged that the term “including” has traditionally been construed as a term of enlargement, rather than a term of limitation. But the Michigan Supreme Court observed that in the context of a statute, such as the WDA, the term “including” may be construed as either a term of enlargement or a term of limitation.

After canvassing the statutory history, the Michigan Supreme Court settled the ongoing debate and determined that the term “including” is a term of limitation, rather than a term of enlargement, in the context of the WDA.

[W]e are not persuaded that, by inserting the word “including” into the statute . . . , the Legislature intended to convert what had long been an exhaustive list into an open-ended list of damages types left entirely to the discretion of the jury.

* * *

[W]e do not believe that the insertion “including” demonstrates that the Legislature acted with sufficient clarity to overrule Baker and abrogate the common law.

The Michigan Supreme Court highlighted a few points about the statutory history of the WDA that supported construction of the term “including” as a term of limitation, rather than a term of enlargement:

• The Michigan Legislature added damages for loss of society and companionship in the 1971 amendments, followed by loss of financial support in the 1985 amendments. The amendments show that when the Michigan Legislature wanted to add types of damages to the WDA, the Michigan Legislature knew how to speak with clarity.
• The 1939 amendments limited damages for survival-act claims to the damages expressly enumerated in the WDA. Notwithstanding the insertion of “including,” the structure remained in place with the 1971 amendments.
• In the legal system, the jury determines the amounts of damages but the court determines the types of damages available. Giving the jury complete discretion to determine the types of damages available would drastically depart from the legal norm.
• For purposes of the negative-implication canon of statutory construction (expressio unius est exclusion alterius), damages for loss of earning capacity bear an association with damages for loss of financial support. In the context of the WDA, the express inclusion of damages for loss of financial support implies the exclusion of damages for loss of earning capacity.

Daher has implications beyond claims seeking damages for loss of earning capacity. Claimants have long sought other types of damages that aren’t expressly enumerated in the WDA. In the motor vehicle accident context, for example, claimants have frequently sought damages for pre-impact fright and shock even though the WDA itemizes damages for post-impact conscious pain and suffering. Juries have awarded and appellate courts have upheld such damages, too. See, e.g., Freed v. Salas, 286 Mich. App. 300 (2009).

Daher is a significant development in Michigan law, a surprising decision, and a noteworthy victory for the Michigan defense bar (which has had a rough go in the Supreme Court over the past few years).

Lindsey A. Peck 313-944-1904 lpeck@dmclaw.com

Timothy S. Groustra 313-308-2031 tgroustra@dmclaw.com