JOHN B LIZZA V YAMAHA MOTOR CORP USA
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STATE OF MICHIGAN
COURT OF APPEALS
JOHN B. LIZZA, Personal Representative of the
Estate of KYLE KLINSKE,
UNPUBLISHED
January 19, 2010
Plaintiff/Counter-Defendant,
v
YAMAHA MOTOR CORPORATION, U.S.A.,
Defendant/Cross-Defendant,
and
DAVID JAMES KLINSKE,
Defendant/Counter-Plaintiff/CrossPlaintiff-Appellant,
and
ALAN JAMES HAGGARD and KRISTEN
SUZANNE TURTON,
Defendants,
and
TRACY SULLIVAN, RYAN PURDY, and
GRAHAM GEARY,
Appellees.
Before: Wilder, P.J., and O’Connell and Talbot, JJ.
PER CURIAM.
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No. 287274
Oakland Circuit Court
LC No. 2005-069097-NI
Defendant-appellant David Klinske appeals by leave granted from the trial court’s order
distributing the proceeds of a wrongful death action brought by the estate of Klinske’s son, Kyle
Klinske.1 The trial court determined that a fair and equitable distribution was to award all the
proceeds to Kyle’s mother, Tracy Sullivan, and his two surviving half-brothers, Ryan Purdy and
Graham Geary,2 and to not award any proceeds to Klinske. We affirm.
This action arises from the tragic death of eight-year-old Kyle Klinske, who, while
operating a Yamaha motorbike in the front yard of David Klinske’s home, lost control of the
motorbike and proceeded into a public road where he was struck and killed by a passing
motorist. At the time, Klinske was instructing Kyle on how to operate the motorbike, but Kyle
was not wearing a helmet and had not obtained any safety certificate to operate an off-road
vehicle.
The personal representative for Kyle’s estate brought a wrongful death action against
several parties, including Klinske. Settlements were reached with all defendants for a gross
amount of $196,000, of which defendant Klinske contributed $50,000. After the deduction of
attorney fees and costs, a net amount of approximately $120,000 remained to be distributed
among those claimants entitled to damages. Klinske, Sullivan, and Kyle’s half-brothers all
requested a share of the proceeds.
Before conducting an evidentiary hearing to determine how to divide the proceeds, the
trial court denied Klinske’s motion in limine to preclude other parties from offering evidence of
Klinske’s negligence or fault in causing Kyle’s death. In particular, it ruled that MCL
600.2922(6)(d) required it to distribute the proceeds on the basis of what was fair and equitable;
therefore, evidence related to Klinske’s fault in causing Kyle’s death could be offered and
considered to the extent that it was relevant to what was fair and equitable. After conducting a
two-day hearing, the court determined that it would be fair and equitable to divide the proceeds
in the following manner: (1) 55 percent to Tracy Sullivan; (2) 25 percent to Ryan; (3) 20 percent
to Graham; and (4) zero percent to Klinske. In explaining its decision not to award any of the
proceeds to Klinske, the trial court stated:
The Court does not doubt that David Klinske loved and cared for his son
Kyle. However, the equities of this case weigh in favor of an award of zero to
him for the reasons discussed below.
Mr. Klinske was a defendant in the lawsuit for which he now seeks to
benefit from. The Court has already ruled that this fact alone does not completely
bar defendant from recovering a share of the proceeds. However, after examining
all the facts in evidence, the Court finds it would be inequitable for [Klinske] to
1
We will refer to defendant-appellant as “Klinske” and his son as “Kyle” in this opinion.
2
Although occasionally referred to as Kyle’s stepbrothers in the lower court proceedings,
appellees Ryan Purdy and Graham Geary are also Sullivan’s sons and therefore were actually
Kyle’s half-brothers.
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recover when it was his own actions which set in motion the circumstances which
took the life of the decedent. It was [Klinske’s] actions of failing to properly
supervise his eight year old son by allowing him to drive a complicated motorbike
without the proper training and safety equipment. The Court finds that it would
be unfair and inequitable for [Klinske] to now directly benefit from his negligent
actions.
Further, it would appear that Tracy Sullivan sustained a greater loss than
[Klinske] due to the fact that Kyle spent the great majority of his life with her and
her sons. Although [Klinske] may have spent many weekends with Kyle the
Court also notes [Klinske] failed to provide proper support on a regular basis for
his son. At one point, Klinske was five months in arrears and Kyle’s mother was
forced to apply for and obtain food stamps.
Although Mr. Klinske certainly sustained a significant loss as a result of
the death of his son, the evidence supports a finding that Tracy Sullivan, Ryan
Purdy and Graham Geary sustained a far greater loss due to the amount of time
they spent with Kyle over the years. This fact as well as Mr. Klinske’s failure to
make timely support payments provides a basis to award the estate monies to
Tracy Sullivan and her sons Ryan and Graham.
Klinske now argues that the trial court erred by failing to award him a share of the
wrongful death proceeds. We disagree.
In reviewing a circuit court’s decision concerning the distribution of settlement proceeds
in a wrongful death matter, we review the trial court’s findings of fact for clear error. Reed v
Breton, 279 Mich App 239, 241; 756 NW2d 89 (2008); Hoogewerf v Kovach, 185 Mich App
577, 579; 463 NW2d 160 (1990). “‘A finding is clearly erroneous when, although there is
evidence to support it, the reviewing court is left with a definite and firm conviction that a
mistake has been made.’” Reed, supra at 241-242, quoting McTaggart v Lindsey, 202 Mich App
612, 616; 509 NW2d 881 (1993). Due regard is given to the trial court’s special opportunity to
judge credibility. Hoogewerf, supra. The trial court’s ultimate distribution of the proceeds,
based on its findings, is reviewed for an abuse of discretion. Id.
The distribution of wrongful death proceeds is governed by MCL 600.2922(6)(d), which
provides:
(6) 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.
The proceeds of a settlement or judgment in an action for damages for wrongful
death shall be distributed as follows:
***
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(d) After a hearing by the court, the court shall order payment from the
proceeds of the reasonable medical, hospital, funeral, and burial expenses of the
decedent for which the estate is liable. The proceeds shall not be applied to the
payment of any other charges against the estate of the decedent. The court shall
then enter an order distributing the proceeds to those persons designated in
subsection (3) who suffered damages and to the estate of the deceased for
compensation for conscious pain and suffering, if any, in the amount as the court
or jury considers fair and equitable considering the relative damages sustained by
each of the persons and the estate of the deceased. If there is a special verdict by
a jury in the wrongful death action, damages shall be distributed as provided in
the special verdict.
Klinske argues that it was improper for the trial court to decline to award him a share of
the settlement proceeds on the basis of his fault in causing Kyle’s death because MCL
600.2922(6)(d) does not identify a claimant’s fault in causing a decedent’s death as a factor for
the court to consider when apportioning proceeds in a wrongful death action. To the extent this
issue presents a question of statutory construction, our review is de novo. Reed, supra at 242.
“It is well recognized that legislative intent is determined by first looking at the language
of a statute to ascertain and give effect to the intent of the Legislature.” Thorn v Mercy Mem
Hosp Corp, 281 Mich App 644, 648; 761 NW2d 414 (2008).
Unless defined in the statute, every word or phrase of the statute should be
read in accordance with its plain and ordinary meaning. MCL 8.3a. Language of
a statute must be applied as it is written and nothing should be read into the
meaning of the statutory language that is not within the intent of the Legislature as
determined from the statute itself. In other words, “a court may read nothing into
an unambiguous statute that is not within the manifest intent of the Legislature as
derived from the words of the statute itself.” DLF Trucking Inc v Bach, 268 Mich
App 306, 310-311; 707 NW2d 606 (2005) (quotation marks and citation omitted).
[Id. at 649-650.]
“‘Courts must give effect to every word, phrase, and clause in a statute and avoid an
interpretation that would render any part of the statute surplusage or nugatory.’” Jenkins v Patel,
471 Mich 158, 167; 684 NW2d 346 (2004), quoting State Farm Fire & Cas Co v Old Republic
Ins Co, 466 Mich 142, 146; 644 NW2d 715 (2002).
Klinske correctly observes that a claimant’s fault in causing a decedent’s death is not
expressly mentioned in MCL 600.2922(6)(d) as a factor for a court to consider when distributing
proceeds in a wrongful death action. However, nothing in the statute expressly prohibits a trial
court’s consideration of fault either. Rather, MCL 600.2922(6)(d) directs the court to distribute
proceeds to designated persons who suffer damages “in the amount as the court or jury considers
fair and equitable considering the relative damages sustained by each of the persons and the
estate of the deceased.” It is apparent from the use of the phrase “fair and equitable” that the
Legislature intended to vest courts with broad discretion with respect to the distribution of
wrongful death proceeds: when the terms “fair” and “equitable” are given their plain and
ordinary meanings, a court has broad discretion to consider a variety of factors in making its
determination. Among the definitions of “fair” is “free from bias, dishonesty, or injustice.”
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Random House Webster’s College Dictionary (2001). Black’s Law Dictionary (8th ed) defines
“equitable” as “[j]ust; consistent with principles of justice and right.”
In this case, the trial court properly recognized that Klinske was not barred from
recovering a share of the settlement proceeds as a matter of law because of his fault. Instead, the
trial court, in a proper exercise of its discretion, Hoogewerf, supra, determined that Klinske was
not entitled to a share because after examining all the facts and evidence, it concluded that it
would be unfair and inequitable for Klinske to benefit from his negligent actions. It was not
inappropriate for the trial court to consider Klinske’s role in causing Kyle’s death in the
performance of its statutory function of determining what was fair and equitable under the
circumstances of the case. Further, the trial court did not base its decision not to award Klinske a
portion of the proceeds solely on Klinske’s admitted role in Kyle’s death. The trial court also
noted that Sullivan’s role as Kyle’s primary caregiver, evidence of Klinske’s sporadic child
support payments, and the fact that before his death Kyle had lived with Sullivan and his halfbrothers, not Klinske, indicated that Sullivan, Ryan, and Graham suffered a far greater loss from
Kyle’s death than did Klinske.
Klinske also argues that, to the extent it was proper for the trial court to consider the issue
of fault, the court should have limited its consideration of this factor to the $50,000 settlement
amount that he contributed. Klinske proposes that the trial court should have deducted $50,000
from the amount available to be distributed, and then distributed the remaining balance without
any consideration of fault. We disagree. Again, the trial court is obligated to consider what is
“fair and equitable.” This determination is not governed by any mathematical formulas but
rather by what is fair and just under the circumstances of the case. Again, in this case, the trial
court’s determination that it would be unfair and inequitable for Klinske to receive a share of the
settlement proceeds was not based solely on its consideration of Klinske’s fault in causing Kyle’s
death. The court also considered that Kyle had spent the great majority of his time with Sullivan
and his half-brothers, and that Klinske failed to provide child support for Kyle on a regular
basis.3 The court’s findings are not clearly erroneous and, under the circumstances, its decision
not to award a share of the proceeds to Klinske was not an abuse of discretion.
Finally, Klinske argues that the trial court erred in allowing both the estate’s personal
representative and the attorney for the estate in the wrongful death action to testify at the
evidentiary hearing to determine the distribution of the wrongful death settlement proceeds.
However, Klinske failed to challenge either witness being permitted to testify and, in fact,
intended to call his attorney in the wrongful death action as a witness.4 Because Klinske at least
implicitly, if not explicitly, consented to allowing the estate’s attorney and personal
3
Kyle was born in September 1993. Sullivan and Klinske separated in June 1994, and were later
divorced. Sullivan was awarded custody of Kyle.
4
Klinske’s attorney was unavailable to testify. The record indicates that the parties instead
agreed to submit the parties’ case evaluation summaries in order to give the “view points of each
side” in the wrongful death action.
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representative to testify, we consider this claim of error waived. See Hilgendorf v St John Hosp
& Medical Ctr Corp, 245 Mich App 670, 696; 630 NW2d 356 (2001).
We also disagree with Klinske’s argument that these witnesses’ testimony regarding their
knowledge of the circumstances that led to Kyle’s death was inadmissible hearsay. “Hearsay is
defined as an out-of-court statement offered in evidence to prove the truth of the matter
asserted.” People v Tanner, 222 Mich App 626, 629; 564 NW2d 197 (1997); MRE 801(c).
Hearsay is generally not admissible as substantive evidence unless it is offered under an
exception to the hearsay rule. Tanner, supra; MRE 802. In this case, the witnesses’ testimony
was not offered for the truth of the matters asserted, but rather to show what information the
estate acquired and to explain the estate’s position in the wrongful death action. Thus, it was not
hearsay. Furthermore, there was no dispute that Klinske agreed to contribute $50,000 toward the
settlement for his role in this matter. Klinske also later testified regarding the facts surrounding
Kyle’s death, admitting that he had allowed Kyle to ride the motorbike without having attended a
training course and while not wearing a helmet. For the most part, the witnesses’ testimony
regarding the circumstances of Kyle’s death was cumulative of Klinske’s testimony, which by
itself established his culpability in the matter. Under the circumstances, the trial court did not
abuse its discretion in allowing the challenged testimony from the estate’s attorney and personal
representative. Becker-Witt v Board of Examiners of Social Workers, 256 Mich App 359, 365;
663 NW2d 514 (2003) (“[A] trial court’s decision to admit evidence is reviewed for an abuse of
discretion.”).
Affirmed.
/s/ Kurtis T. Wilder
/s/ Peter D. O’Connell
/s/ Michael J. Talbot
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