Wrongful Death

In Michigan, if a person is killed because of the negligence of another person or company, a legal claim can be made for certain damages. However, the only person who can formally bring a legal claim for damages is the Personal Representative of the Estate. For someone to be named the Personal Representative, a Petition has to be filed in a Probate Court, asking the Judge to appoint a Personal Representative to pursue wrongful death litigation.

Under law, there is a priority as to which person should be appointed the Personal Representative, and at times there is a disagreement as to whom the Judge should appoint.

The Personal Representative, for example, may be the surviving spouse. That person would be a claimant under the Wrongful Death Act and, if appointed, also be the Personal Representative of the Estate. The Personal Representative has the right to hire attorneys to represent the Estate in any type of wrongful death litigation. The Personal Representative and any attorney retained to represent the Estate is legally and ethically the representative of any claimants under the Wrongful Death Act.

In other words, if there are other surviving claimants (brothers, sisters, grandparents, for example) the attorney and the Personal Representative bring legal claims to obtain compensation, based upon the facts and evidence, for all claimants under the Act. A jury may then award damages to such claimants if there is a trial. If there is a settlement, the claimants can agree upon a distribution of settlement proceeds (subject to court approval if a minor or legally incapacitated claimant is involved). If there is a dispute about distribution of the proceeds, neither the Personal Representative nor the attorney for the estate can decide or argue about how best to distribute the proceeds.

Rather, each claimant separately can obtain an attorney to argue to the Judge how the proceeds should be divided and the Judge will do so. A Probate Judge will decide distribution issues if the case is settled without a lawsuit being filed; a Circuit Judge (or Federal Judge) will decide distribution issues if a lawsuit is filed in state or federal court.

Below are sections of the Michigan Wrongful Death Act, which outline some of the statutory procedures that have to be followed in order to pursue a wrongful death claim in Michigan:

600.2922 Death by wrongful act, neglect, or fault of another; liability; action by personal representative; limitation; notice; approval or rejection of proposed settlement; award and distribution of damages; presentation of claim for damages; advising attorney for personal representative of material facts; applicability of MCL 700.3924 to distribution of proceeds.
Sec. 2922.

(1) 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.

(2) Every action under this section shall be brought by, and in the name of, the personal representative of the estate of the deceased. Within 30 days after the commencement of an action, the personal representative shall serve a copy of the complaint and notice as prescribed in subsection (4) upon the person or persons who may be entitled to damages under subsection (3) in the manner and method provided in the rules applicable to probate court proceedings.

(3) Subject to sections 2802 to 2805 of the estates and protected individuals code, 1998 PA 386, MCL 700.2802 to 700.2805, 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:

(a) The deceased’s spouse, children, descendants, parents, grandparents, brothers and sisters, and, if none of these persons survive the deceased, then those persons to whom the estate of the deceased would pass under the laws of intestate succession determined as of the date of death of the deceased.

(b) The children of the deceased’s spouse.

(c) Those persons who are devisees under the will of the deceased, except those whose relationship with the decedent violated Michigan law, including beneficiaries of a trust under the will, those persons who are designated in the will as persons who may be entitled to damages under this section, and the beneficiaries of a living trust of the deceased if there is a devise to that trust in the will of the deceased.

[There are other applicable sections and many cases have been decided about issues under this Act.]