News & Publications

Litigation and Medical Malpractice Defense Legal Alert:

Lifetime-Lost-Earning-Capacity Under the Wrongful Death Act Upheld for Foreseeable Future

In 2016, the Michigan Court of Appeals issued an opinion in Denney v Kent Co Rd Comm, 317 Mich App 727 (2016). Denney held that, in a wrongful death action, an estate can recover the decedent’s lifetime lost earning capacity regardless whether anyone relied on the decedent for support. In other words, the decedent’s estate can recover everything that the decedent would have been able to recover had there been no death.

Recently, the Michigan Supreme Court denied an application for leave to appeal in Estate of Langell by Touma v McLaren Port Huron (2021). There, the defendants asserted that Denney was wrongly decided and that damages for a decedent’s lost wages were not recoverable in a wrongful-death action as a matter of law. The defendants appealed in the Michigan Supreme Court after the Michigan Court of Appeals decided that Denney remained good law.

Justices Viviano and Zahra dissented from the Court’s denial, asserting that Denney was seemingly at odds with the Court’s opinion in Baker v Slack, 319 Mich 703 (1948), which interpreted a prior version of the Wrongful Death Act. Baker concluded that the loss of probable future earning, without diminution for cost of maintenance, was not available under the Act. The Act limited recovery to what the decedent would have owed as support to the plaintiff. But, after amendments to the Act since Baker , the Court of Appeals in Denney found that lost-earning-capacity damages were allowed regardless of support.

The Michigan Supreme Court’s decision to deny leave in Estate of Langell shuts the door on future challenges to Denney’s jurisprudence, at least for the time being. While Michigan Supreme Court orders are not precedentially binding, the position taken by the dissent, and the fact that five justices came out the other way, indicates that a majority of the Court appears to view Denney as settled law. As a result, the Court will likely be similarly disinclined to take up the issue in subsequent cases.

The practical effect of the Supreme Court’s denial order in Estate of Langell is that, for the foreseeable future, wrongful death plaintiffs will be able to rely on Denney to pursue damages for the decedent’s lifetime lost-earning capacity, regardless whether anyone relied on the decedent for support. This, of course, significantly increases potential liability exposure for any individual or company defending a wrongful-death cause of action.

Should you have questions regarding lifetime lost earning capacity, the Wrongful Death Act, or your potential liability exposure, please contact Smith Haughey attorneys Jonathan Koch or Jeremy Orenstein.

Download the PDF here.