Wrongful-Death Damages In The Denney Era

• Published date: 08 February 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury
• Law Firm: Collins Einhorn Farrell
• Author: Mr Michael J. Cook and Trent B. Collier

Damages in wrongful-death cases experienced a tectonic event in 2016--the Court of Appeals held that estates can recover the decedent's lost earning capacity. Denney v Kent Co Rd Comm, 317 Mich App 727; 896 NW2d 808 (2016). That was new. And with new rules come new questions.

This article assumes that Denney is controlling (though there's an argument that it isn't) and explores the next battlefront: personal consumption and tax reductions. Had they lived, decedents would have necessarily incurred expenses (personal consumption and taxes on their income). Can estates standing in their shoes recover the entirety of the decedents' future earning capacity? Or, do we account for the expenses that the decedents won't incur?

Michigan's wrongful-death act

Statutes are always a good starting point. Michigan has a survival statute. MCL 600.2921. It says that all 'actions and claims' survive death, but it says nothing about damages. And when it comes to wrongful-death claims, the survival statute points to 'the next section'Michigan's wrongful-death act, MCL 600.2922.

The wrongful-death act says that if the decedent could have 'recover[ed] damages,' the person who caused their death remains 'liable to an action for damages.' MCL 600.2922(1). It doesn't say the 'same' damages or even 'those' damages. It just says, 'damages.'

Scrolling down, the wrongful-death act has a damages provision. MCL 600.2922(6). That provision allows damages that are 'fair and equitable, under all the circumstances including' a couple specific categories of damages. It doesn't mention the decedent's personal consumption or use terms like gross or net earning capacity. So it doesn't directly answer our entirety-versus-reduction query.

We're left to glean and infer. The phrase 'under all the circumstances' favors considering personal consumption; it certainly doesn't prohibit it. But is awarding the entirety of the decedent's earning capacity 'fair and equitable'?

The rationale for the entirety

Some say that the estate should recover everything the decedent could have recovered if he had lived. Awarding less, the argument goes, would be inequitable because the wrongdoer would pay less if he killed someone than if he didn't.

This argument essentially compares a deceased plaintiff to a permanently incapacitated plaintiff. Because the incapacitated plaintiff could recover the entirety of his earning capacity (not to mention substantial medical expenses and noneconomic damages), the estate...