ESTATE OF MICHAEL JOHN JAGO II V DEPARTMENT OF STATE POLICE
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STATE OF MICHIGAN
COURT OF APPEALS
LESLEY JAGO, as Personal Representative of the
Estate of MICHAEL JOHN JAGO II, Deceased,
UNPUBLISHED
August 2, 2011
Plaintiff-Appellee/Cross-Appellant,
v
No. 297880
Court of Claims
LC No. 09-000029-MZ
DEPARTMENT OF STATE POLICE,
Defendant-Appellant/CrossAppellee.
Before: MURRAY, P.J., and HOEKSTRA and STEPHENS, JJ.
PER CURIAM.
In this wrongful death action, defendant Department of State Police appeals as of right,
and plaintiff Lesley Jago, as personal representative of the estate of her husband Michael John
Jago II (Jago), cross appeals by delayed leave granted, the trial court’s order granting in part and
denying in part defendant’s motion for summary disposition under MCR 2.116(C)(7). Under the
motor vehicle exception to governmental immunity, a governmental agency is liable only for
“bodily injury” or “property damage.” At issue in this case is whether under Wesche v Mecosta
Co Rd Comm, 480 Mich 75; 746 NW2d 847 (2008), a claim for survivor’s loss benefits is a form
of damages for “bodily injury” or is an independent cause of action. We conclude that survivor’s
loss benefits are damages for the “bodily injury” suffered by a deceased injured person and,
therefore, a governmental agency can be liable for survivor’s loss benefits. We further hold in
answer to the issue raised on cross appeal that a governmental agency, like any other defendant,
is not liable for survivor’s loss benefits incurred in the first three years after the date of the
accident when the deceased injured person was operating his own vehicle and the vehicle was
uninsured. We therefore affirm.
I. FACTS AND PROCEDURAL HISTORY
Late at night on January 26, 2009, Jago was driving his vehicle southbound on County
Road 403 near Newberry, Michigan. As Jago entered the M-28 intersection, a patrol vehicle,
owned by defendant, broadsided Jago’s vehicle. At the time of the accident, Jago’s vehicle was
not insured under a no-fault insurance policy. Jago died in the accident. His survivors included
plaintiff and a young son.
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In her second amended complaint, plaintiff claimed that defendant was liable under the
motor vehicle exception to governmental immunity for all injuries suffered by Jago and his
estate. She asserted those injuries included trauma resulting in death, “wage loss or actual future
loss of earnings to the extent that such losses are recoverable in excess of the no-fault statutory
monthly and yearly maximums,” and other damages related to the accident to the extent that the
damages are recoverable under the no-fault act or the wrongful death act.
Defendant moved for summary disposition under MCR 2.116(C)(7). It began its
argument with two “fundamentals” regarding a claim against a governmental agency for the
negligent operation of a government-owned vehicle: (1) the plaintiff must satisfy the
requirements of the no-fault act and the motor vehicle exception to governmental immunity and
(2) a plaintiff’s damages are those allowed under the no-fault act and the wrongful death act, as
limited by the governmental tort liability act. Based on these fundamentals, defendant argued
that plaintiff had no right to recover any damages because Jago’s vehicle was not insured at the
time of the accident. To support this conclusion, defendant relied on the fact that under the nofault act, noneconomic damages are not available to a driver injured while operating his own
uninsured motor vehicle. Further, under the no-fault act, survivor’s loss, a form of first-party
benefits, cannot be recovered by the dependents of the deceased injured person if the injured
person would not have been entitled to first-party benefits, and damages recoverable by a
motorist driving his own uninsured vehicle are limited to the damages listed in MCL
500.3135(3)(a) and (e), neither of which concern excess economic damages. Moreover,
defendant maintained the excess economic benefits that plaintiff sought were loss of consortium
damages, and the Supreme Court stated in Wesche that loss of consortium damages cannot be
recovered under the motor vehicle exception to governmental immunity.
In response, plaintiff argued that recovery of damages was governed by the motor vehicle
exception and that the requirements of the exception were met: Jago suffered “bodily injury” as
the result of the negligent operation of a motor vehicle by an employee of a governmental
agency. Because the exception makes liability unconditional when the requirements are met,
plaintiff claimed that Jago’s status as an uninsured motorist was irrelevant. Plaintiff further
argued that even if the no-fault act applied, the act only precludes an uninsured motorist from
recovering noneconomic damages. The act’s prohibition against an uninsured motorist’s
recovery of damages, applies to the recovery of noneconomic damages; the prohibition does not
apply to the recovery of excess economic damages under MCL 500.3135(3)(c). According to
plaintiff, all excess economic damages listed in MCL 500.3135(3)(c) are available to an
uninsured motorist.
The trial court granted in part and denied in part defendant’s motion for summary
disposition. It granted the motion as to plaintiff’s claim for noneconomic damages. It held that,
under Hardy v Oakland Co, 461 Mich 561; 607 NW2d 718 (2000), where the Supreme Court
held the no-fault threshold requirements must be met in order for a plaintiff to recover
noneconomic damages from a governmental agency under the motor vehicle exception, plaintiff
was not entitled to noneconomic damages because Jago’s vehicle was not insured by a no-fault
policy. It denied the motion as to plaintiff’s claim for excess economic benefits. It held that
because plaintiff’s claim for excess economic benefits was not a loss of consortium claim, but
rather a claim for wage loss or future loss of earnings, the claim was not barred by the Supreme
Court’s decision in Wesche.
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II. ANALYSIS
On appeal, defendant argues that because the motor vehicle exception to governmental
immunity permits recovery only for “bodily injury” and “property damage,” and because
survivor’s loss benefits do not compensate the dependents of the deceased injured person for
bodily injury or property damage, the trial court erred in denying its motion for summary
disposition as to plaintiff’s claim for excess economic benefits. On cross appeal, plaintiff argues
that the no-fault act does not limit her right to recovery of damages under the motor vehicle
exception and, therefore, the estate is entitled to collect survivor’s loss benefits from the date of
the accident.
A. STANDARDS OF REVIEW
We review de novo a trial court's decision on a motion for summary disposition under
MCR 2.116(C)(7). Grimes v Dep’t of Transp, 475 Mich 72, 76; 715 NW2d 275 (2006).
Summary disposition is proper under MCR 2.116(C)(7) when the claim is barred by immunity
granted by law. Fane v Detroit Library Comm, 465 Mich 68, 74; 631 NW2d 678 (2001). In
reviewing a summary disposition motion under MCR 2.116(C)(7), we “consider all documentary
evidence submitted by the parties, accepting as true the contents of the complaint unless
affidavits or other appropriate documents specifically contradict them.” Id. “If the pleadings or
other documentary evidence reveal no genuine issues of material fact, the court must decide as a
matter of law whether the claim is statutorily barred.” Holmes v Mich Capital Med Ctr, 242
Mich App 703, 706; 620 NW2d 319 (2000). We review de novo issues of statutory
interpretation. Allen v Bloomfield Hills Sch Dist, 281 Mich App 49, 52; 760 NW2d 811 (2008).
B. BASIC LEGAL PRINCIPLES
The issues raised by the parties in this case require us to address the interplay between the
governmental tort liability act (GTLA), MCL 691.1401 et seq., the no-fault act, MCL 500.3101
et seq., and the wrongful death act (WDA), MCL 600.2922. In interpreting statutes, our goal is
to ascertain and give effect to the intent of the Legislature. Tevis v Amex Assurance Co, 283
Mich App 76, 81; 770 NW2d 16 (2009). If the statutory language is unambiguous, the
Legislature is presumed to have intended the meaning clearly expressed, and we must enforce
the statute as written. Ameritech Publishing, Inc v Dep’t of Treasury, 281 Mich App 132, 136;
761 NW2d 470 (2008).
Under the GTLA, a governmental agency is immune from tort liability when the agency
is engaged in the exercise or discharge of a governmental function. MCL 691.1407(1); Bennett v
Detroit Police Chief, 274 Mich App 307, 315; 732 NW2d 164 (2007). This grant of immunity is
subject to six statutory exceptions, Wesche, 480 Mich at 84, including the motor vehicle
exception, MCL 691.1405. The motor vehicle exception provides:
Governmental agencies shall be liable for bodily injury and property
damage resulting from the negligent operation by any officer, agent, or employee
of the governmental agency, of a motor vehicle of which the governmental
agency is owner, as defined in Act No. 300 of the Public Acts of 1949, as
amended, being sections 257.1 to 257.923 of the Compiled Laws of 1948.
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According to the Supreme Court, the language of MCL 691.1405 is clear: the waiver of
immunity for liability resulting from a governmental employee’s negligent operation of a motor
vehicle is limited to damages for “bodily injury” and “property damage.” Wesche, 480 Mich at
84. “Bodily injury” is “a physical or corporeal injury to the body.” Id. at 85.
The motor vehicle exception provides a broad statement of liability. Hardy, 461 Mich at
565. But this broad statement of liability is controlled by restrictions contained in the no-fault
act. Id.
MCL 500.3135, which sets forth when a person is subject to tort liability arising from the
ownership, maintenance, or use of a motor vehicle, provides in pertinent part:
(1) A person remains subject to tort liability for noneconomic loss caused
by his or her ownership, maintenance, or use of a motor vehicle only if the injured
person has suffered death, serious impairment of body function, or permanent
serious disfigurement.
(2) For a cause of action for damages pursuant to subsection (1) filed on or
after July 26, 1996, all of the following apply:
***
(c) Damages shall not be assessed in favor of a party who was operating
his or her own vehicle at the time the injury occurred and did not have in effect
for that motor vehicle the security required by [MCL 500.3101] at the time the
injury occurred.
(3) Notwithstanding any other provision of law, tort liability arising from
the ownership, maintenance, or use within this state of a motor vehicle with
respect to which the security required by [MCL 500.3101] was in effect is
abolished except as to:
***
(c) Damages for allowable expenses, work loss, and survivor’s loss as
defined in [MCL 500.3107 to MCL 500.3110] in excess of the daily, monthly,
and 3-year limitations contained in those sections. . . .[1]
In Hardy, the plaintiff was injured when his vehicle was rear-ended by a patrol vehicle
driven by a sheriff’s deputy. He argued that because of the broad statement of liability contained
in the motor vehicle exception, he was not required to show serious impairment of body function
1
The damages referred to MCL 500.3135(3)(c) are generally referred to as excess economic
damages.
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before the governmental agency was liable for noneconomic damages. The Supreme Court
disagreed. Hardy, 461 Mich at 565-566. It stated that the apparent conflict between MCL
500.3135(1) and MCL 691.1405 was resolved by the plain language of MCL 500.3135(3).2 Id.
at 565. It explained:
Subsection 3135([3]) of the no-fault act, which contains the partial abolition of
tort liability, opens with the introductory clause, “Notwithstanding any other
provision of law . . . .” On its face, therefore, this measure reflects the
Legislature’s determination that the restrictions set forth in the no-fault act control
the broad statement of liability found in the immunity statute. [Id.]
Accordingly, the Supreme Court held that in order for a plaintiff to recover noneconomic
damages from a governmental entity he must show serious impairment of a body function. Id. at
566.
An action for injuries that result in death shall be prosecuted under the WDA. MCL
600.2921; Wesche, 480 Mich at 89. The WDA provides:
(1) Whenever the death of a person, injuries resulting in death, or death as
described in [MCL 600.2922a] 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 [MCL 600.2922a], and although the death
was caused under circumstances that constitute a felony.
***
(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 WDA acts as a “filter” through which the underlying claim proceeds. Wesche, 480 Mich at
88. Thus, any statutory limitations on the underlying claim apply to the wrongful-death action.
Id. at 89. And specifically, the WDA “does not waive a governmental agency’s immunity
2
At the time of the accident in Hardy, the language of MCL 500.3135(3) was found in MCL
500.3135(2). Hardy, 461 Mich at 565 n 10.
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beyond the limits set forth in the underlying statutory exception.” Id. at 87. At the same time,
damages that would have been available in the underlying action must be recognized in the
wrongful-death claim. Thorn v Mercy Mem Hosp Corp, 281 Mich App 644, 659; 761 NW2d
414 (2008).
C. DEFENDANT’S APPEAL
Defendant argues that because the waiver of governmental immunity in the motor vehicle
exception is limited to “bodily injury” and “property damage,” and because survivor’s loss does
not compensate surviving dependents for physical injuries or for property damage, plaintiff’s
claim for excess economic benefits, i.e., survivor’s loss incurred three years beyond the date of
the accident, does not fall within the motor vehicle exception to governmental immunity. We
disagree.
Defendant’s argument is premised on Wesche, 480 Mich 75, where the Supreme Court
addressed the issue whether the motor vehicle exception allows a claim for loss of consortium
against a governmental agency. In Wesche, a governmental employee rear-ended the plaintiffhusband’s vehicle, injuring the plaintiff-husband’s spine. The plaintiff-wife, who was not in the
vehicle at the time of the accident or at the accident scene, asserted a claim of loss of consortium
as a result of her husband’s injury. The Supreme Court held that the motor vehicle exception did
not waive the governmental agency’s immunity for the loss of consortium claim. Id. at 85. First,
the Supreme Court reasoned that a loss of consortium is not a physical injury to a body; rather, it
is a claim for loss of society and companionship. Id. Second, the Supreme Court explained that
a loss of consortium is not merely an item of damages. It stated that a claim for loss of
consortium, while derivative of the underlying bodily injury, has long been recognized as a
separate, independent cause of action. Id. In reaching its conclusion, the Supreme Court
rejected the argument that the motor vehicle exception creates a threshold that, once met, permits
recovery for loss of consortium. It reasoned that nothing in MCL 691.1405 “state[s] or
suggest[s] that governmental agencies are liable for any damages once a plaintiff makes a
threshold showing of bodily injury or property damage.” Id. at 85-86 (emphasis in original).3
Pursuant to Wesche, whether a governmental agency is liable under the motor vehicle
exception for excess survivor’s loss depends on whether survivor’s loss is an item of damages
for “bodily injury” or whether a claim for survivor’s loss is an independent cause of action. To
determine whether survivor’s loss is a form of damages for “bodily injury” or an independent
cause of action, we must examine the nature and purpose of survivor’s loss.
Under the no-fault act, an insurer is liable to pay personal protection insurance benefits to
its insureds for accidental bodily injury arising out of the ownership, operation, maintenance, or
use of a motor vehicle as a motor vehicle. MCL 500.3105(1). “Bodily injury” includes death
3
Although plaintiff contends that Wesche was wrongly decided, this Court is bound by the rule
of stare decisis to follow the decisions of the Supreme Court. Tenneco Inc v Amerisure Mut Ins
Co, 281 Mich App 429, 447; 761 NW2d 846 (2008).
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resulting from the injury. MCL 500.3105(3); Belcher v Aetna Cas & Surety Co, 409 Mich 231,
243; 293 NW2d 594 (1980).
“Personal protection insurance benefits are payable to or for the benefit of an injured
person or, in case of his death, to or for the benefit of his dependents.” MCL 500.3112.4 The
personal protection insurance benefits payable to the injured person are listed in MCL 500.3107.
Belcher, 409 Mich at 247. These benefits include work loss. MCL 500.3107(1)(b). The
personal protection insurance benefits payable to the deceased injured person’s dependents are
listed in MCL 500.3108, Belcher, 409 Mich at 247, and are known as survivor’s loss.
MCL 500.3108(1) provides:
Except as provided in subsection (2), personal protection insurance
benefits are payable for a survivor’s loss which consists of a loss, after the date on
which the deceased died, of contributions of tangible things of economic value,
not including services, that dependents of the deceased at the time of the
deceased’s death would have received for support during their dependency from
the deceased if the deceased had not suffered the accidental bodily injury causing
death and expenses, not exceeding $20.00 per day, reasonably incurred by these
dependents during their dependency and after the date on which the deceased died
in obtaining ordinary and necessary services in lieu of those that the deceased
would have performed for their benefit if the deceased had not suffered the injury
causing death. . . . [T]he benefits payable for a survivors’ loss . . . is not payable
beyond the first three years after the date of the accident.
In Belcher, 409 Mich at 249, the Supreme Court recognized that survivor’s loss benefits
“may fairly be regarded as a partial substitute for work-loss benefits which were or would have
been paid to the injured person during his lifetime.” It explained:
A survivor’s loss of support does not accrue until after the injured person’s death.
Prior to the injured person’s death, any loss of support a dependent suffers as a
result of the injury is neither recognized nor expressly compensated for by the act.
Rather, benefits are paid to the injured person for loss of work-related income.
The Legislature could have fairly contemplated that in most instances the injured
person would use a portion of his work-loss benefit to provide support for his
dependents. Benefits paid for a survivor’s loss of support can thus be regarded as
a close substitute for funds likely to have been received out of the work-loss
4
A dependent is a person who was receiving support and services from the deceased injured
person before the person’s death. Belcher, 409 Mich at 244. The spouse of the deceased person
and the deceased person’s children under the age of 18 are generally conclusively presumed to
be dependents. MCL 500.3110(1)(a)-(c).
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benefit which would have been paid to the injured person had he survived. [Id. at
249.]5
With this understanding of the nature and purpose of survivor’s loss benefits, we hold
that survivor’s loss benefits are damages for the “bodily injury” suffered by the person who died
in the motor vehicle accident. It cannot be disputed that a person who dies from injuries suffered
in a motor vehicle accident has suffered “bodily injury.” MCL 500.3105(3). The person has
suffered a physical or corporeal injury to the body. Wesche, 480 Mich at 85. Because the
injuries resulted in death, the no-fault act dictates that benefits, in the form of survivor’s loss, are
to be paid to the deceased injured person’s dependents. MCL 500.3112. Generally, through
survivor’s loss benefits, the dependents are compensated for the economic support they would
have received had the injured person survived. Miller v State Farm Mut Auto Ins Co, 410 Mich
538, 561; 302 NW2d 537 (1981); Belcher, 409 Mich at 249. Accordingly, survivor’s loss
benefits do not compensate the deceased injured person’s dependents for injuries that the
dependents themselves have suffered. Rather, it compensates the dependents for economic loss
suffered by them that resulted from the injured person’s death. Moreover, as defendant
recognizes, a claim for survivor’s loss is not a cause of action separate and independent from the
injured person’s right to receive benefits. The right to benefits belongs only to one party: it
either belongs to the injured person or, in the case of the injured person’s death, it belongs to the
injured person’s dependents. The dependents of the injured person have no right to survivor’s
loss benefits unless and until the injured person has died. Because survivor’s loss is an item of
damages for the “bodily injury” suffered by the deceased injured person, the waiver of immunity
in the highway exception applies to claims for excess survivor’s loss benefits. Accordingly, we
conclude that the trial court did not err in denying defendant’s motion for summary disposition
on plaintiff’s claim for excess survivor’s loss benefits.6
D. PLAINTIFF’S CROSS-APPEAL
5
But the amount of survivor’s loss benefits is not determined solely by the deceased injured
person’s wages and salary. In Miller v State Farm Mut Auto Ins Co, 410 Mich 538, 561; 302
NW2d 537 (1981), the Supreme Court stated:
[T]he measurement of § 3108 survivors’ loss benefits should include the value of
tangible things other than, and in addition to, wages and salary. The dollar value
of such items as employer-provided health insurance coverage, pensions,
disability benefits, and other tangible things of economic value that are lost to the
surviving dependents by reason of the insured’s death must be taken into account.
6
We do not address or decide whether dependents of a deceased injured person are prohibited
from collecting excess survivor’s loss benefits when, because the injured person was driving an
uninsured vehicle, the dependents are not entitled to survivor’s loss benefits in a first-party
action. See Belcher, 409 Mich at 260-261. This issue was not raised by defendant in its brief on
appeal.
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On cross-appeal, plaintiff argues that the trial court erred in holding that defendant could
only be liable for survivor’s loss incurred three years beyond the date of the accident. We
disagree.
As already stated, the restrictions set forth in the no-fault act control the broad statement
of liability found in the motor vehicle exception. Hardy, 461 Mich at 565.7 Because he was the
owner of the uninsured vehicle involved in the accident, Jago, had he survived, would not have
been entitled to be paid personal protection insurance benefits for bodily injury suffered in the
accident. MCL 500.3113(b). When the person who suffered bodily injured is not entitled to be
paid personal protection insurance benefits, his dependents are not entitled to receive survivor’s
loss benefits as a personal protection insurance benefit. Belcher, 409 Mich 260-261. Because
survivor’s loss is a personal protection insurance benefit to be paid for three years after the date
of the accident by a no-fault insurer, MCL 500.3108(1), the trial court did not err in holding that
plaintiff is not entitled to receive survivor’s loss for the three years after the date of the accident
from defendant.
Affirmed.
/s/ Christopher M. Murray
/s/ Joel P. Hoekstra
/s/ Cynthia Diane Stephens
7
Contrary to plaintiff’s assertion, the provision at dispute is not MCL 500.3135(2)(c), which
states that noneconomic damages shall not be assessed in favor of a party who, at the time of the
accident, was operating his or her own uninsured vehicle. The governing provision is MCL
500.3135(3). This provision sets forth the limited circumstances when tort liability arising out of
the use of a motor vehicle has not been abolished; these circumstances include liability for
damages for survivor’s loss beyond the three-year limitation. MCL 500.3135(3)(c). In Hardy,
461Mich at 565, the Supreme Court held that the restrictions of MCL 500.3135(3) control the
liability of a governmental agency under the motor vehicle exception.
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