Wesche v. Mecosta County Road Commission

Kelly, J.

(concurring in part and dissenting in part). These two cases require us to decide two issues. The first concerns the spouse or parent of an individual who sustains bodily injury in a motor vehicle collision. The issue is whether that person can recover damages from a governmental agency for loss of consortium under the motor vehicle exception to governmental immunity.1 The majority decides that a person cannot recover these damages. I disagree. When a loss of consortium claim arises directly out of bodily injury suffered in a collision, I would hold that such damages are recoverable. Accordingly, I dissent from the part of the majority opinion that holds to the contrary.

The other issue is whether a claim for loss of consortium can be asserted against a governmental employee. The majority decides that the employee is liable for such damages “if the plaintiff can satisfy all the requirements set forth in the gross-negligence exception to the governmental immunity of employees.”2 Because I agree that governmental employees can be held liable for loss of consortium, I concur in the result reached in that part of the majority opinion.

FACTS

WESCHE v MECOSTA COUNTY ROAD COMMISSION3

Plaintiff Daniel Wesche stopped his vehicle at a red light. He was then struck from behind by a Gradall hydraulic excavator owned by defendant Mecosta *98County Road Commission. As a result of the collision, he suffered injury to his spine. Plaintiff Beverly Wesche, Daniel’s wife, was not present when the incident occurred.

Plaintiffs brought suit against defendant, asserting numerous causes of action. Among their claims was one brought by Beverly for loss of consortium. Defendant moved for summary disposition on this claim. The trial court granted the motion, concluding that the claim was barred by governmental immunity. In a published opinion, the Court of Appeals affirmed the decision.

KIK v SBRACCIA4

A pregnant Rebecca Kik was being transported in an ambulance owned by defendant Kinross Charter Township. Defendant John-Christopher Sbraccia, an employee of defendant Kinross Charter Township Emergency Medical Services, was driving the ambulance. He lost control of it and overturned in a ditch. As a result of the crash, Rebecca sustained numerous injuries. She also went into premature labor, causing her to deliver her daughter, Sharon Kik. Sharon died the same day.

Plaintiffs Rebecca and Robert Kik, who is Rebecca’s husband and Sharon’s father, brought suit against the township, the emergency medical service, and Sbraccia. Included among the causes of action were claims for loss of consortium. One was filed on behalf of Robert seeking damages for the injuries suffered by his wife. And one was filed on behalf of Robert and Rebecca because of the death of their daughter.

Defendants moved for summary disposition, claiming that governmental immunity barred the loss of consortium claims. The trial court denied the motion. The *99Court of Appeals reversed with respect to the denial of summary disposition for the governmental agencies on Robert’s loss of consortium claim arising out of the injuries suffered by his wife. The Court determined regarding this claim that it was bound by its prior decision in Wesche and had to reverse the denial of summary disposition to the governmental agencies.5 But the panel also concluded that Wesche had been incorrectly decided and declared that it would have decided the issue differently were it not for Wesche.6 The panel reasoned that Wesche had confused the concepts of liability and damages.7 It concluded that the Wesche panel had erred because, once a plaintiff has shown bodily injury, liability is established and the plaintiff may recover whatever damages arise from the bodily injury.8 And it would have found that loss of consortium is one such damage.9

After the Kik I panel determined that Wesche had been incorrectly decided, a special panel of the Court of Appeals was convened. A majority of the special panel concluded that Wesche had been incorrectly decided and overruled it.10 In Kik II, the majority expressly adopted the Kik I panel’s reasoning as its own.11

ANALYSIS

After the special panel issued its decision in Kik II, we granted leave to appeal in both Kik and Wesche and *100directed that the two cases be argued together.12 Now, the Court decides that loss of consortium is unavailable to the spouse or parent of an individual injured in a collision under the motor vehicle exception to government immunity. The majority also decides that a governmental employee whose gross negligence causes bodily injury is subject to personal liability for loss of consortium. I agree with the second decision, but I part company with the majority on the first.

The motor vehicle exception to governmental immunity provides: “Governmental 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 of which the governmental agency is owner . . . ,”13

Contrary to the majority decision, this exception does not state that plaintiffs can recover damages only for bodily injury or property damage.14 Instead, the exception provides that governmental agencies are “liable for bodily injury and property damage.” Importantly, the statute speaks of liability, but it says nothing about damages. In Kik I, the Court of Appeals correctly recognized this point and aptly summarized its effect:

[The motor vehicle exception] concerns the issue of liability and describes one of the conditions for which the government does not enjoy immunity: when the negligent operation of a motor vehicle owned by a governmental agency causes bodily injury or property damage. The statute does not limit or otherwise establish the types of damages that are recoverable from the government when *101liability is established. For that matter, the statute does not address, in either terms of inclusion or exclusion, who may recover damages arising from such bodily injury. In other words, the appropriate reading of MCL 691.1405 is that the government is not immune from suit when the negligent operation of a government-owned motor vehicle results in bodily injury. Once such liability is established, the statute is silent regarding damages, meaning that the plaintiff may recover whatever damages arise from the bodily injury.[15]

Accordingly, under a proper interpretation of the motor vehicle exception, plaintiffs establish liability by showing that the negligent operation of a government-owned motor vehicle resulted in bodily injury. But once that liability has been established, plaintiffs can recover all damages that arise from the bodily injury. “Had the Legislature intended to prohibit the recovery of consequential or incidental damages which arise directly from the infliction of injury to person or property at the hands of the government, it would have affirmatively done so in specific language . .. .”16

Loss of consortium damages derive from “some other legally cognizable harm suffered by the individual whose consortium the plaintiff has lost as a result of that harm.”17 Michigan law has long allowed recovery of these damages for injuries to a spouse.18 And the *102wrongful death act allows parents to bring a claim for loss of companionship based on the death of their child.19

In these cases, the “other legally cognizable harm” from which plaintiffs’ loss of consortium claims derive is the bodily injury suffered by the spouse or child in the motor vehicle collision. In Wesche, plaintiff Beverly Wesche’s loss of consortium claim arose from the injuries suffered by her husband in the motor vehicle collision. In Kik, plaintiff Robert Kik’s loss of consortium claims are based on the injuries to his wife and the death of his child, both of which were caused by the motor vehicle collision. And plaintiff Rebecca Kik’s claim is based on the death of her child. Accordingly, each plaintiff can recover loss of consortium damages because the damages arose directly from the bodily injury suffered in a motor vehicle collision.

The correctness of finding that the motor vehicle exception allows recovery for loss of consortium is confirmed when one examines the motor vehicle exception in light of the highway defects exception. In relevant part, the highway defects exception provides:

A person who sustains bodily injury or deimage to his or her property by reason of failure of a governmental agency to keep a highway under its jurisdiction in reasonable repair and in a condition reasonably safe and fit for travel may recover the damages suffered by him or her from the governmental agency.[20]

This exception expressly limits recovery to the “person who sustains bodily injury or damage to his or her property.” The Legislature used express limiting language in this exception, but did not use such language *103in the motor vehicle exception. This is strong evidence that the Legislature did not intend to limit recovery under the motor vehicle exception to the individual who actually suffered bodily injury.21

Furthermore, the majority’s interpretation of the exception will lead to absurd results. The damages recoverable for loss of consortium, like those for emotional distress and lost wages, can derive from the bodily injury suffered, as in this case, in a motor vehicle collision. Did the Legislature intend to single out loss of consortium damages, of all the damages recoverable for bodily injury from a collision, as excluded from the remedy that the statute confers? Absent any reason to believe that the Legislature intended such a result, this absurd interpretation must be rejected.22

CONCLUSION

I believe that the majority errs by deciding that loss of consortium damages cannot be recovered under the motor vehicle exception to governmental immunity. The exception establishes only a threshold for liability and does not limit the type of damages that may be recovered once liability is established. For that reason, I *104would hold that loss of consortium damages can be recovered in these two cases.

CAVANAGH, J., concurred with KELLY, J.

MCL 691.1405.

Ante at 80.

Wesche v Mecosta Co Rd Comm, 267 Mich App 274; 705 NW2d 136 (2005).

Kik v Sbraccia, 268 Mich App 690; 708 NW2d 766 (2005) (Kik I).

Id. at 711-712.

Id. at 711.

Id. at 709.

Id. at 710.

Id.

Kik v Sbraccia, 272 Mich App 388, 391; 726 NW2d 450 (2006) {Kik ID.

Id.

Wesche v Mecosta Co Rd Comm, 478 Mich 860 (2007); Kik v Sbraccia, 478 Mich 861 (2007).

MCL 691.1405.

This Court reviews issues of statutory interpretation de novo. Brown v Detroit Mayor, 478 Mich 589, 593; 734 NW2d 514 (2007).

15 Kik I, 268 Mich App at 709-710.

Endykiewicz v State Hwy Comm, 414 Mich 377, 389; 324 NW2d 755 (1982). In Endykiewicz, a unanimous Court suggested that the exceptions to governmental immunity should be construed expansively in order to accomplish the legislative purpose of “provid[ing] an opportunity to obtain redress from the responsible governmental agency for those injured as a result of the negligence of the government....” Id. at 388-389. This appears to me to be the appropriate rule when interpreting an exception to governmental immunity.

31 Michigan Law & Practice (2d ed), Torts, § 72, p 179.

See Montgomery v Stephan, 359 Mich 33, 49; 101 NW2d 227 (1960).

MCL 600.2922(6).

20 MCL 691.1402(1).

It could be argued that the difference in the language used in the highway defects exception and the motor vehicle exception can be explained by this fact: The highway defects exception has been amended twice, whereas the motor vehicle exception has never been amended. However, this fact does not explain the difference in language, since each version of the highway defects exception has included language strictly limiting recovery to the person suffering bodily injury.

See McAuley v Gen Motors Corp, 457 Mich 513, 518; 578 NW2d 282 (1998); see also Cameron v Auto Club Ins Ass’n, 476 Mich 55, 78-79; 718 NW2d 784 (2006) (Markman, J., concurring); id. at 103 n 12 (Cavanagh, J., dissenting); id. at 104 n 1 (Weaver, J., dissenting); id. at 109-130 (Kelly, J., dissenting).