Boling v. Renaud

Jansen, J.

(dissenting). I respectfully dissent. Contrary to the conclusion of the majority, I do not believe that "it was the intent of the Legislature to create a class of recipients under subsection 3(a) of the wrongful death act that would not *592also be entitled to take under our laws of intestacy.” Ante at 590. Neither the legislative history nor a plain reading of the wrongful death statute compels such a result.

Although it is true that appellant could not recover as an heir pursuant to MCL 700.110(3); MSA 27.5110(3) because she had been adopted, she was still a lineal descendant of the decedent. Therefore, appellant should be allowed to collect wrongful death proceeds pursuant to subsection 3(a) of the wrongful death statute as a descendant.

I find the reasoning and holding of In re Mooney Estate, 154 Mich App 411; 397 NW2d 329 (1986), to be persuasive. In Mooney at 412, this Court held that a child who has been given up for adoption remains a lineal descendant of its natural parent and is entitled to preferred inheritance tax treatment pursuant to MCL 205.202; MSA 7.562. In Mooney at 414-415, this Court concluded that the natural children were considered to be the lineal descendants of the decedent even though the children were adopted by the stepfather because the adoption could not alter the biological relationship between the children and their natural father. This Court specifically rejected the claim by the Department of Treasury that because the decedent died intestate, the two natural children could not inherit as heirs pursuant to the Adoption Code and the children were therefore not within the class intended by the Legislature to obtain preferential tax treatment.

Like this Court in Mooney, I believe that appellant in the instant case is a descendant under subsection 3(a) of the wrongful death statute under a plain reading of that statute. Moreover, the legislative history of the wrongful death statutory amendments does not compel the majority’s result. *593The House Legislative Analysis, HB 4486 and 4487, July 22, 1985, states the following:

While the decision [of Crystal v Hubbard, 414 Mich 297; 324 NW2d 869 (1982)] effectively allows almost any relative who suffers a loss to sue to recover damages, there is concern that it expanded the class of persons entitled to recover beyond what is reasonable, and what attorneys and courts can reasonably handle. What is needed is a clearer definition of those entitled to recover damages in a wrongful death action, which reflects both kinship and suffering due to the loss of a loved one.
The Crystal decision made the class of persons entitled to recover damages too large and unwieldy. The bills resolve this problem by stating exactly who may recover damages for the wrongful death of another. More importantly, the bills recognize that the purpose of the wrongful death statute is to allow those who suffer a loss to recover for that loss.

In amending the wrongful death statute, and in purposely limiting the class of persons entitled to recover wrongful death proceeds, the Legislature still used the term "descendant” as part of the class of persons who could recover wrongful death proceeds. Thus, the legislative history does not compel the conclusion that appellant, an adopted child, could not recover wrongful death proceeds, especially in considering the Legislature’s stated purpose behind the wrongful death statute: "to allow those who suffer a loss to recover for that loss.” Surely, the loss of appellant’s natural father is included within that stated purpose.

Accordingly, I would reverse the probate court’s order denying appellant a claim in the share of the wrongful death proceeds of her natural father’s estate and remand for the probate court to *594include appellant in the class of recipients and distribute the wrongful death proceeds in a fair and equitable manner. MCL 600.2922(6); MSA 27A.2922(6).