HB-4777, As Passed Senate, November 30, 2005

SUBSTITUTE FOR

HOUSE BILL NO. 4777

     A bill to amend 1961 PA 236, entitled

"Revised judicature act of 1961,"

by amending section 2922 (MCL 600.2922), as amended by 2000 PA 56.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 2922. (1) Whenever the death of a person,  or injuries

resulting in death, or death as described in section 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 section 2922a, 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.

     (4) The notice required in subsection (2) shall contain the

following:

     (a) The name and address of the personal representative and

the personal representative's attorney.

     (b) A statement that the attorney for the personal

representative shall be advised within 60 days after the mailing of

the notice of any material fact that may constitute evidence of any

claim for damages and that failure to do so may adversely affect

his or her recovery of damages and could bar his or her right to

any claim at a hearing to distribute proceeds.

     (c) A statement that he or she will be notified of a hearing

to determine the distribution of the proceeds after the

adjudication or settlement of the claim for damages.

     (d) A statement that to recover damages under this section the

person who may be entitled to damages must present a claim for

damages to the personal representative on or before the date set

for hearing on the motion for distribution of the proceeds under

subsection (6) and that failure to present a claim for damages

within the time provided shall bar the person from making a claim

to any of the proceeds.

     (5) If, for the purpose of settling a claim for damages for

wrongful death where an action for those damages is pending, a

motion is filed in the court where the action is pending by the

personal representative asking leave of the court to settle the

claim, the court shall, with or without notice, conduct a hearing

and approve or reject the proposed settlement.

     (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  person

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:

     (a) The personal representative shall file with the court a

motion for authority to distribute the proceeds. Upon the filing of

the motion, the court shall order a hearing.

     (b) Unless waived, notice of the hearing shall be served upon

all persons who may be entitled to damages under subsection (3) in

the time, manner, and method provided in the rules applicable to

probate court proceedings.

     (c) If any interested person is a minor, a disappeared person,

or an incapacitated individual for whom a fiduciary is not

appointed, a fiduciary or guardian ad litem shall be first

appointed, and the notice provided in subdivision (b) shall be

given to the fiduciary or guardian ad litem of the minor,

disappeared person, or legally incapacitated individual.

     (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.

     (e) If none of the persons entitled to the proceeds is a

minor, a disappeared person, or a legally incapacitated individual

and all of the persons entitled to the proceeds execute a verified

stipulation or agreement in writing in which the portion of the

proceeds to be distributed to each of the persons is specified, the

order of the court shall be entered in accordance with the

stipulation or agreement.

     (7) A person who may be entitled to damages under this section

must present a claim for damages to the personal representative on

or before the date set for hearing on the motion for distribution

of the proceeds under subsection (6). The failure to present a

claim for damages within the time provided shall bar the person

from making a claim to any of the proceeds.

     (8) A person who may be entitled to damages under this section

shall advise the attorney for the personal representative within 60

days after service of the complaint and notice as provided for

under subsection (2) of any material fact of which the person has

knowledge and that may constitute evidence of any claim for

damages. The person's right to claim at a hearing any proceeds may

be barred by the court if the person fails to advise the personal

representative as prescribed in this subsection.

     (9) If a claim under this section is to be settled and a civil

action for wrongful death is not pending under this section, the

procedures prescribed in section 3924 of the estates and protected

individuals code, 1998 PA 386, MCL 700.3924, shall be applicable to

the distribution of the proceeds.