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Denney v. Kent County Road Commission

Court of Appeals of Michigan

November 15, 2016

KIMBERLY DENNEY, Personal Representative of the ESTATE OF MATTHEW MICHAEL DENNEY, Plaintiff-Appellant,
v.
KENT COUNTY ROAD COMMISSION, Defendant-Appellee.

         Kent Circuit Court LC No. 14-009556-NI

          Before: Shapiro, P.J., and Hoekstra and Servitto, JJ.

          Per Curiam.

         Plaintiff appeals by leave granted the trial court's April 29, 2015 order granting defendant's motion for partial summary disposition under MCR 2.116(C)(7). We reverse and remand to the trial court for further proceedings consistent with this opinion.

         Plaintiff alleged that on the morning of May 18, 2014, Matthew Denney (the "decedent"), was riding a motorcycle on Peach Ridge Road N.W. in Kent County. As he crested a hill, his motorcycle struck two potholes in the road, causing him to lose control of the motorcycle and fall onto the pavement. He sustained fatal injuries. For purposes of this appeal only, defendant does not contest these allegations. There is also no dispute that defendant is a governmental agency with jurisdiction and control over the portion of the road on which the incident occurred, and is thus required to maintain that road in reasonable repair so that it is reasonably safe and convenient for public travel. See MCL 691.1401; MCL 691.1402. Plaintiff, as representative of the decedent's estate, sued defendant under the wrongful-death statute, MCL 600.2922[1]. Defendant moved the trial court for partial summary disposition, alleging that it was immune from suit for damages beyond bodily injuries suffered by the decedent, including any loss of financial support, (such as the decedent's lost earnings) under the governmental tort liability act (GTLA), MCL 691.1401 et seq. Plaintiff argued that damages for lost wages/loss of earning capacity fell within the highway exception of the GTLA as provided in MCL 691.1402(1), but the trial court disagreed and granted defendant's motion. We granted leave to appeal that decision.[2]

         "We review de novo a trial court's grant or denial of summary disposition under MCR 2.116(C)(7)." Tarlea v Crabtree, 263 Mich.App. 80, 87; 687 N.W.2d 333 (2004). This Court also reviews issues of statutory interpretation de novo. PNC Nat'l Bank Ass'n v Dep't of Treasury, 285 Mich.App. 504, 505; 778 N.W.2d 282 (2009). The primary goal of statutory construction is to determine the intent of the Legislature by reasonably considering the purpose and goal of the statute. Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich. 511, 515; 573 N.W.2d 611 (1998). To determine the Legislature's intent, this Court first looks at the specific language of the statute. Gauntlett v Auto-Owners Ins Co, 242 Mich.App. 172, 177; 617 N.W.2d 735 (2000).

         "[T]he wrongful death act provides the exclusive remedy under which a plaintiff may seek damages for a wrongfully caused death." Jenkins v Patel, 471 Mich. 158, 164; 684 N.W.2d 346 (2004). The wrongful-death statute states, in relevant part, as follows:

Whenever the death of a person, injuries resulting in death, or death as described in section 2922a shall be caused by wrongful act, neglect, or fault of another, and the act, neglect, or fault is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages, the person who or the corporation that would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured or death as described in section 2922a, and although the death was caused under circumstances that constitute a felony. [MCL 600.2922(1).]

         MCL 600.2922(6) sets forth the damages available in wrongful-death actions. Wesche v Mecosta Co Rd Comm, 480 Mich. 75, 90; 746 N.W.2d 847 (2008). That provision states, in relevant part, 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 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. [MCL 600.2922(6).]

         The 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." Thorn v Mercy Mem Hosp Corp, 281 Mich.App. 644, 651; 761 N.W.2d 414 (2008). Under the wrongful-death statute "the intervention of death neither limits nor precludes the type of damages that could have been recovered by the person had the person survived the injury." Id. at 660. As relevant to this case, our Supreme Court has stated that economic damages include "damages incurred due to the loss of the ability to work and earn money . . . ." Hannay v Dep't of Transp, 497 Mich. 45, 67; 860 N.W.2d 67 (2014). However, "[b]ecause an underlying claim 'survives by law' and must be prosecuted under the wrongful-death act, . . . any statutory or common-law limitations on the underlying claim apply to a wrongful-death action." Wesche, 480 Mich. at 89.

         As stated above, the damages available under the wrongful-death statute, MCL 600.2922(6), include "any type of damages, economic and noneconomic, deemed justified by the facts of the particular case." Thorn, 281 Mich.App. at 651. And, economic damages include "damages incurred due to the loss of the ability to work and earn money . . . ." Hannay, 497 Mich. at 67. Therefore, damages for lost earnings are allowed under the wrongful-death statute. However, as a governmental agency, defendant is immune from tort liability unless an exception under the GTLA applies. MCL 691.1407(1). The GTLA broadly shields and grants to governmental agencies immunity from tort liability and the statutory exceptions are narrowly construed. Moraccini v City of Sterling Hts, 296 Mich.App. 387, 391-392; 822 N.W.2d 799 (2012).

         Plaintiff argues here that the highway exception to governmental immunity permits her claim for lost earnings. It states in relevant part that "[a] person who sustains bodily injury or damage to his property by reason of failure of a governmental agency to keep a highway under its jurisdiction in reasonable repair and in a condition reasonably safe and fit for travel may recover the damages suffered by him or her from the governmental agency." MCL 691.1402(1). Our Supreme Court has defined "bodily injury" as "a physical or corporeal injury to the body." Wesche, 480 Mich. at 84-85. Although the Supreme Court was construing the motor-vehicle exception to the GTLA rather than the highway exception when defining "bodily injury, " both exceptions are part of the GTLA, and "[i]dentical terms in different provisions of the same act should be construed identically[.]" The Cadle Co v Kentwood, 285 Mich.App. 240, 249; 776 N.W.2d 145 (2009). Therefore, the phrase "bodily injury" in the highway exception also means "a physical or corporeal injury to the body." MCL 691.1402(1) does not define the term "damage, " but "when the Legislature uses a word or phrase that has acquired a unique meaning at common law, it is interpreted to have the same meaning when used in a statute dealing with the same subject." Lewis v LeGrow, 258 Mich.App. 175, 184; 670 N.W.2d 675 (2003).

         In Hannay, 497 Mich. at 51, our Supreme Court was called upon to determine whether the phrase "liable for bodily injury" in the motor vehicle exception to governmental immunity (MCL 691.1405) allowed for the recovery of economic damages, such as work-loss damages, and noneconomic damages, such as pain and suffering to a plaintiff who was injured in a motor vehicle accident. In making its determination, the Court stated that "bodily injury" is the category of harm (i.e., the type of injury) for which the government waives immunity ...


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