KEVIN SHENKMAN V JAMES B BRAGMAN DO
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
KEVIN SHENKMAN, Personal Representative of
the Estate of SAMUEL PRYOR, Deceased,
FOR PUBLICATION
March 30, 2004
9:00 a.m.
Plaintiff-Appellant,
v
No. 243942
Oakland Circuit Court
LC No. 00-024196-NM
JAMES B. BRAGMAN, D.O., d/b/a JAMES
BENNETT BRAGMAN, D.O., P.C.,
Defendant-Appellee.
Updated Copy
June 18, 2004
Before: Sawyer, P.J., and Saad and Bandstra, JJ.
BANDSTRA, J.
This matter has been remanded to us from the Supreme Court for consideration as on
leave granted. 467 Mich 873 (2002). Plaintiff is the personal representative of his grandfather's
estate and brought this wrongful death action against defendant without employing an attorney to
do so. The lower court concluded that plaintiff was thus engaged in the unauthorized practice of
law and, as a result, dismissed the complaint without prejudice. The sole issue before us is,
therefore, whether plaintiff was engaged in the unauthorized practice of law under these facts.
We conclude that he was and affirm the lower court order dismissing his complaint.
This case involves the construction of a statute, the wrongful death act, MCL 600.2922.
Thus, it involves a question of law that we review de novo. In re Kubiskey Estate, 236 Mich
App 443, 447-448; 600 NW2d 439 (1999). When construing a statute, this Court must consider
the object of the statute and apply a reasonable construction that best accomplishes the purpose
of the statute. Marquis v Hartford Accident & Indemnity (After Remand), 444 Mich 638, 644;
513 NW2d 799 (1994). Moreover, in doing so we must read each statutory provision in the
context of the entire statute, so as to produce a harmonious whole. Macomb Co Prosecutor v
Murphy, 464 Mich 149, 159; 627 NW2d 247 (2001).
Plaintiff relies heavily on language from the statute indicating that a wrongful death
action "shall be brought by, and in the name of, the personal representative" of the decedent's
estate. MCL 600.2922(2). This language has never been construed in any precedent considering
the question or facts at issue here. Further, we find totally inapposite the few cases that the
litigants claim are analogous or otherwise helpful.
-1-
Instead, we find some guidance in the statutory scheme into which this language fits:
(1) Whenever the death of a person or injuries resulting in death 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, 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 person. 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. [MCL 600.2922.]
Under these provisions, a person or corporation who would otherwise be liable for a
death remains so even though the "party injured" is no longer able to "maintain an action," being
deceased. MCL 600.2922(1). That person or corporation is liable to the heirs of the decedent's
estate who suffer damages as a result of the death. MCL 600.2922(3). However, subsection
2922(3) does not authorize those heirs to themselves bring an action. Instead, subsection
2922(2) says that the action "shall be brought by, and in the name of, the personal representative
of the estate . . . ."
Viewed in this context, the subsection 2922(2) language appellant relies on is best
understood as merely establishing the process by which liability for damages, preserved
notwithstanding the death that gives rise to the operation of the statute, must be pursued. The
estate, not the heirs, may bring an action and, as with other matters involving the estate, the duly
-2-
appointed personal representative acts for, or represents, the estate. See, e.g., MCL 700.3703(1)
(a personal representative is a fiduciary who must act to advance the best interests of the estate).
It is in that sense that the estate's action is "brought by, and in the name of," the personal
representative. That the estate's cause of action is "brought by, and in the name of," the personal
representative does not mean, however, that the cause of action transfers over to, or becomes the
right of, the personal representative.
We note that this analysis comports with MCR 2.201. Although actions must generally
be "prosecuted in the name of the real party in interest," MCR 2.201(B), a "personal
representative . . . may sue in his or her own name without joining the party for whose benefit the
action is brought," MCR 2.201(B)(1). These provisions more clearly state what the statute
contemplates, albeit less clearly, that a personal representative is a separate entity from the estate
served and that the estate, not the personal representative, remains "the real party in interest . . .
for whose benefit the action is brought." MCR 2.201(B), MCR 2.201(B)(1).
And this presents the fatal flaw in appellant's argument. That argument is premised on
his constitutional right as a nonlawyer to represent himself "in his own proper person . . . ."
Const 1963, art 1, ยง 13. We acknowledge that right. However, under the statute as we analyze
it, appellant is not the true plaintiff here; the estate is. Appellant is not, in other words,
representing himself in this litigation. Instead, he is representing a client, the estate. Thus, he is
engaged in the unauthorized practice of law. MCL 600.916. The trial court did not err in so
concluding.
We affirm.
/s/ Richard A. Bandstra
/s/ David H. Sawyer
/s/ Henry William Saad
-3-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.