Kik v. Sbraccia
Kik v. Sbraccia
Opinion of the Court
This conflict panel was convened to resolve an inconsistency between the vacated portion of this Court’s prior opinion in Kik v Sbraccia, 268 Mich App 690; 708 NW2d 766 (2005) (Kik I), vacated in part 268 Mich App 801 (2005), and this Court’s earlier decision in Wesche v Mecosta Co Rd Comm, 267 Mich App 274; 705 NW2d 136 (2005). In accordance with
The conflict at issue involves whether damages for derivative claims such as loss of consortium are available in actions brought pursuant to the motor-vehicle exception. MCL 691.1405. In Wesche, a panel of this Court held that because loss-of-consortium claims do not encompass bodily injury or property damage, they are not included in the motor-vehicle exception to governmental immunity. Wesche, supra at 278-279. Therefore, this Court affirmed the trial court’s ruling that the plaintiff wife’s loss-of-consortium claim was barred by governmental immunity. Id. at 279-280. In Kik I, this Court held that the panel’s decision in Wesche was inapplicable to wrongful death cases, Kik I, supra at 706-707, 712 n 42; therefore, Wesche did not apply to plaintiffs’ claim for loss of society and companionship for the death of their daughter. However, the panel in Kik I concluded that the claim for loss of consortium brought by plaintiff husband against defendants Kinross Charter Township and Kinross Charter Township EMS (but not Sbraccia, the driver of the ambulance, individually), relating to the injuries suffered by plaintiff wife in the accident, did fall squarely within the scope of Wesche. Id. at 707. In Kik I, the panel opined “that Wesche was incorrectly decided” and stated that “were we not obligated by MCR 7.215(J) to
Following due consideration of the analyses of the competing viewpoints regarding this conflict issue in Wesche and Kik I, we resolve the conflict in accordance with the panel’s opinion in Kik I. We are persuaded by the panel’s reasoning in part III of the Kik I opinion and adopt its reasoning and analysis as our own. We therefore expressly adopt and reinstate part III of the panel’s opinion in Kik I and overrule part III of the Wesche opinion.
We direct the trial court to vacate its order granting summary disposition in favor of the township and the township’s EMS with respect to plaintiff husband’s claim for loss of consortium arising from plaintiff wife’s injuries.
Vacated and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
Dissenting Opinion
(dissenting). We respectfully dissent. We would adopt part III of this Court’s decision in Wesche v Mecosta Co Rd Comm, 267 Mich App 274, 278-280; 705 NW2d 136 (2005), and hold that MCL 691.1405 does not provide an exception to governmental immunity for loss-of-consortium claims.
Pursuant to MCL 691.1405, “ [g]overnmental 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 . ...” In this case, plaintiffs alleged in part that plaintiff Rebecca Kik was a pregnant passenger in an ambulance being driven by defendant Sbraccia and that his negligent or grossly negligent operation of the ambulance, resulting in a rollover accident, caused plaintiff Rebecca Kik to be “thrown about the back of the ambulance, sustaining injuries which subsequently resulted in the premature birth and death of her daughter....” Plaintiffs also sought recovery for a number of derivative claims, including loss of consortium and loss of society and companionship.
As noted in Wesche, since at least 1960, loss of consortium has been construed as a separate cause of action in Michigan. Wesche, supra at 279, citing Wessels v Garden Way, Inc, 263 Mich App 642, 648; 689 NW2d 526 (2004). However, “ ‘[a] claim of loss of consortium is
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