HOUSE BILL No. 4524 March 19, 1997, Introduced by Reps. Ciaramitaro, McBryde, Walberg, Law, Kaza, Baade, Harder, Palamara, Griffin, Callahan, Goschka, Birkholz, Horton, McNutt, Green, Dalman, Gernaat, Brown and Lowe and referred to the Committee on Judiciary. A bill to amend 1961 PA 236, entitled "Revised judicature act of 1961," by amending section 2922 (MCL 600.2922), as amended by 1985 PA 93, and by adding section 2922a. THE PEOPLE OF THE STATE OF MICHIGAN ENACT: 1 Sec. 2922. (1) Whenever the death ofa personAN 2 INDIVIDUAL or injuries resulting in deathshall beARE caused 3 by wrongful act, neglect, or fault of another, and the act, 4 neglect, or faultis such aswould, if death had not ensued, 5 have entitled the party injured to maintain an action and recover 6 damages, thepersonINDIVIDUAL who or the corporation which 7 would have been liable, if death had not ensued, shall be liable 8 to an action for damages, notwithstanding the death of the 9personINDIVIDUAL injured, and although the death was caused 10 under circumstances that constitute a felony. 01132'97 VPW 2 1 (2) Every action under this section shall be brought by, and 2 in the name of, the personal representative of the estate of the 3 deceasedpersonINDIVIDUAL. Within 30 days of the commencement 4 of an action, the personal representative shall serve a copy of 5 the complaint and notice as prescribed in subsection (4) upon the 6personINDIVIDUAL orpersonsINDIVIDUALS who may be entitled 7 to damages under subsection (3) in the manner and method provided 8 in the rules applicable to probate court proceedings. 9 (3) Subject to section 251 of the revised probate code,Act10No. 642 of the Public Acts of 1978, being section 700.251 of the11Michigan Compiled Laws1978 PA 642, MCL 700.251, theperson12 INDIVIDUAL orpersonsINDIVIDUALS who may be entitled to dam- 13 ages under this section shall be limited to any of the following 14 who suffer damages and survive the deceased: 15 (a) The deceased's spouse, children, descendants, parents, 16 grandparents, brothers and sisters, and, if none of these 17personsINDIVIDUALS survive the deceased, then thosepersons18 INDIVIDUALS to whom the estate of the deceased would pass under 19 the laws of intestate succession determined as of the date of 20 death of the deceased. 21 (b) The children of the deceased's spouse. 22 (c) ThosepersonsINDIVIDUALS who are devisees under the 23 will of the deceased, except those whose relationship with the 24 decedent violated Michigan law, including beneficiaries of a 25 trust under the will, thosepersonsINDIVIDUALS who are desig- 26 nated in the will aspersonsINDIVIDUALS who may be entitled to 27 damages under this section, and the beneficiaries of a living 01132'97 3 1 trust of the deceased if there is a devise to that trust in the 2 will of the deceased. 3 (4) The notice required in subsection (2) shall contain the 4 following: 5 (a) The name and address of the personal representative and 6 the personal representative's attorney. 7 (b) A statement that the attorney for the personal represen- 8 tative shall be advised within 60 days after the mailing of the 9 notice of any material fact which may constitute evidence of any 10 claim for damages and that failure to do so may adversely affect 11 his or her recovery of damages and could bar his or her right to 12 any claim at a hearing to distribute proceeds. 13 (c) A statement that he or she will be notified of a hearing 14 to determine the distribution of the proceeds after the adjudica- 15 tion or settlement of the claim for damages. 16 (d) A statement that to recover damages under this section 17 thepersonINDIVIDUAL who may be entitled to damages must 18 present a claim for damages to the personal representative on or 19 before the date set for hearing on the motion for distribution of 20 the proceeds under subsection (6) and that failure to present a 21 claim for damages within the time provided shall bar theperson22 INDIVIDUAL from making a claim to any of the proceeds. 23 (5) If, for the purpose of settling a claim for damages for 24 wrongful death where an action for those damages is pending, a 25 motion is filed in the court where the action is pending by the 26 personal representative asking leave of the court to settle the 01132'97 4 1 claim, the court shall, with or without notice, conduct a hearing 2 and approve or reject the proposed settlement. 3 (6) In every action under this section the court or jury may 4 award damages as the court or jury shall consider fair and equi- 5 table, under all the circumstances including reasonable medical, 6 hospital, funeral, and burial expenses for which the estate is 7 liable; reasonable compensation for the pain and suffering, while 8 conscious, undergone by the deceasedpersonINDIVIDUAL during 9 the period intervening between the time of the injury and death; 10 and damages for the loss of financial support and the loss of the 11 society and companionship of the deceased. The proceeds of a 12 settlement or judgment in an action for damages for wrongful 13 death shall be distributed as follows: 14 (a) The personal representative shall file with the court a 15 motion for authority to distribute the proceeds. Upon the filing 16 of the motion, the court shall order a hearing. 17 (b) Unless waived, notice of the hearing shall be served 18 upon allpersonsINDIVIDUALS who may be entitled to damages 19 under subsection (3) in the time, manner, and method provided in 20 the rules applicable to probate court proceedings. 21 (c) If any interestedpersonINDIVIDUAL is a minor, a dis- 22 appearedpersonINDIVIDUAL as defined in section 4 of the 23 revised probate code,Act No. 642 of the Public Acts of 1978,24being section 700.4 of the Michigan Compiled Laws1978 PA 642, 25 MCL 700.4, or a legally incapacitatedpersonINDIVIDUAL for 26 whom a fiduciary is not appointed, a fiduciary or guardian ad 27 litem shall be first appointed, and the notice provided in 01132'97 5 1 subdivision (b) shall be given to the fiduciary or guardian ad 2 litem of the minor, disappearedpersonINDIVIDUAL, or legally 3 incapacitatedpersonINDIVIDUAL. 4 (d) After a hearing by the court, the court shall order pay- 5 ment from the proceeds of the reasonable medical, hospital, 6 funeral, and burial expenses of the decedent for which the estate 7 is liable. The proceeds shall not be applied to the payment of 8 any other charges against the estate of the decedent. The court 9 shall then enter an order distributing the proceeds to those 10personsINDIVIDUALS designated in subsection (3) who suffered 11 damages and to the estate of the deceased for compensation for 12 conscious pain and suffering, if any, in the amount as the court 13 or jury considers fair and equitable considering the relative 14 damages sustained by each of thepersonsINDIVIDUALS and the 15 estate of the deceased. If there is a special verdict by a jury 16 in the wrongful death action, damages shall be distributed as 17 provided in the special verdict. 18 (e) If none of thepersonsINDIVIDUALS entitled to the 19 proceeds is a minor, a disappearedpersonINDIVIDUAL, or a 20 legally incapacitatedpersonINDIVIDUAL and all of the 21personsINDIVIDUALS entitled to the proceeds execute a verified 22 stipulation or agreement in writing in which the portion of the 23 proceeds to be distributed to each of thepersonsINDIVIDUALS 24 is specified, the order of the court shall be entered in accord- 25 ance with the stipulation or agreement. 26 (7)A personAN INDIVIDUAL who may be entitled to damages 27 under this section must present a claim for damages to the 01132'97 6 1 personal representative on or before the date set for hearing on 2 the motion for distribution of the proceeds under subsection 3 (6). The failure to present a claim for damages within the time 4 provided shall bar thepersonINDIVIDUAL from making a claim to 5 any of the proceeds. 6 (8)A personAN INDIVIDUAL who may be entitled to damages 7 under this section shall advise the attorney for the personal 8 representative within 60 days after service of the complaint and 9 notice as provided for under subsection (2) of any material fact 10 of which thepersonINDIVIDUAL has knowledge and which may con- 11 stitute evidence of any claim for damages. The person's right to 12 claim at a hearing any proceeds may be barred by the court if the 13personINDIVIDUAL fails to advise the personal representative 14 as prescribed in this subsection. 15 (9) If a claim under this section is to be settled and a 16 civil action for wrongful death is not pending under this sec- 17 tion, the procedures prescribed in sections 221 and 222 of the 18 revised probate code,Act No. 642 of the Public Acts of 1978,19being sections 700.221 and 700.222 of the Michigan Compiled Laws20 1978 PA 642, MCL 700.221 AND 700.222, shall be applicable to the 21 distribution of the proceeds. 22 (10) AS USED IN THIS SECTION, "INDIVIDUAL" INCLUDES THE LIVE 23 UNBORN OFFSPRING OF A HUMAN BEING AT ANY TIME OR STAGE OF DEVEL- 24 OPMENT FROM CONCEPTION TO BIRTH. 25 SEC. 2922A. A PERSON WHO WRONGFULLY OR NEGLIGENTLY CAUSES 26 INJURY TO AN UNBORN CHILD IS LIABLE FOR DAMAGES. AS USED IN THIS 27 SECTION, "UNBORN CHILD" MEANS THE LIVE UNBORN OFFSPRING OF A 01132'97 7 1 HUMAN BEING AT ANY TIME OR STAGE OF DEVELOPMENT FROM CONCEPTION 2 UNTIL BIRTH. 01132'97 Final page. VPW