May 11, 2005, Introduced by Rep. Van Regenmorter and referred to the Committee on Judiciary.
A bill to amend 1961 PA 236, entitled
"Revised judicature act of 1961,"
by amending sections 2922 and 2922a (MCL 600.2922 and 600.2922a),
section 2922 as amended by 2000 PA 56 and section 2922a as amended
by 2002 PA 164.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec.
2922. (1) Whenever If the death of a person, or
injuries
resulting in death, shall be or death as described in
section 2922a is 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 is liable in an action for
damages. , notwithstanding
the
death of the person injured, and although Liability under this
subsection applies regardless of whether 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 are 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 A notice required in by
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 must 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 by the person who
may be entitled to damages and could bar his or her right to any
claim at a hearing to distribute proceeds.
(c)
A statement that he or she the
person who may be
entitled to damages 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 will 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 that the court or jury shall consider
determines
to be 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 has
not
been 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 that the court or jury considers
determines to be 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 bars
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 at
a hearing may be barred by the court if the person fails to advise
the
personal representative as prescribed in required by 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
apply to the distribution of the proceeds.
Sec. 2922a. (1) A person who commits a wrongful or negligent
act against a pregnant individual is liable for damages if the act
results in a miscarriage or stillbirth by that individual, or
physical injury to or the death of the embryo or fetus, regardless
of the gestational age of the embryo or fetus.
(2) This section does not apply to any of the following:
(a) An act committed by the pregnant individual.
(b) A medical procedure performed by a physician or other
licensed health professional within the scope of his or her
practice and with the pregnant individual's consent or the consent
of an individual who may lawfully provide consent on her behalf or
without consent as necessitated by a medical emergency.
(c) The lawful dispensation, administration, or prescription
of medication.
(3) This section does not prohibit a civil action under any
other applicable law.
(4) As used in this section, "physician or other licensed
health professional" means a person licensed under article 15 of
the public health code, 1978 PA 368, MCL 333.16101 to 333.18838.