Loss of Services and Economic Loss

F. Loss of Services

§3.22 Loss of services is an important element of damages that is frequently overlooked. See generally 4 Am Jur Proof of Facts 160, 170. For example, the husband-father and wife-mother may perform innumerable services for the family, including cooking, housekeeping, painting, plumbing, chauffeuring, and gardening. See generally 13 Am Jur Proof of Facts 193, 203.

In Thorn v Mercy Mem’l Hosp Corp, 281 Mich 1122, 761 NW2d 414 (2008), the court of appeals held that the statutory language of MCL 600.2922(6) does not provide an exhaustive list of available damages in wrongful death cases and, thus, does not preclude a claim for damages for loss of services. The court further held that loss of services is not a component of a claim for noneconomic damages such as loss of consortium or loss of society and companionship. Rather, loss of services damages are economic damages, which are not subject to the damages cap of MCL 600.1483.

The law clearly permits recovery for loss of services of the husband-father and wife-mother. Sceba v Manistee Ry Co, 189 Mich 308, 155 NW 414 (1915); Gorton v Harmon, 152 Mich 473, 116 NW 443 (1908). In Gorton, the court held that the cost of the wife’s support had to be deducted from the amount of the loss. This deduction is probably no longer applicable because the cost of maintenance has nothing to do with the amount of lost services. The support that family members give each other is a positive noneconomic element, the loss of which is itself recoverable. Thus, you should urge the court not to deduct the cost of maintenance.

In child death cases, the parents can recover for the value of the decedent’s services. Thompson v Ogemaw County Bd of Rd Comm’rs, 357 Mich 482, 98 NW2d 620 (1959); Dauer’s Estate v Zabel, 19 Mich App 198, 172 NW2d 701 (1969). That value, presumably, is at least equal to the amount the parents have paid for support, maintenance, and education. Rohm v Stroud, 386 Mich 693, 194 NW2d 307 (1972). In calculating the loss, you should consider the following factors: the cost of the birth, food, clothing, medicine, education, shelter, and transportation. Rohm v Stroud, 35 Mich App 257, 192 NW2d 388 (1971), aff’d, 386 Mich 693 (1972).

In proving loss of services, you will need testimony on the cost of replacement services. You should ask expert witnesses, such as economists, Michigan Unemployment Insurance Agency personnel, or labor department personnel, to testify about such costs.

G. Loss of Gifts and Valuable Gratuities

§3.23 Loss of gifts and valuable gratuities as an element of damages is not well discussed in the relevant cases and apparently has little applicability. However, it is covered in M Civ JI 45.02 and may be applicable in some cases. For example, a parent may have regularly given valuable gifts to a child on the child’s birthday and at Christmas. If a pattern is established, a jury might well infer a continuation of the gift giving but for the death of the parent and permit recovery. See DeVito v United Airlines, 98 F Supp 88 (EDNY 1951); Dickey v Parham, 331 So 2d 917 (Miss 1976).

H. Loss of Parental Training and Guidance

§3.24 Loss of parental training and guidance as an element of damages may be measured by the loss of nurturance, education, guidance, and discipline provided by a loving parent. See generally 4 Am Jur Proof of Facts 132. The mere presence of an adult may provide important developmental influences to a child, and a proper parental presence might help make a child a healthy and socially functioning human being. Michigan law recognizes the loss of these important factors as an element of damages. Sipes v Michigan Cent RR Co, 231 Mich 404, 204 NW 84 (1925); Westfall v Venton, 1 Mich App 612, 137 NW2d 757 (1965). Walker v Lake Shore & Michigan S Ry Co, 111 Mich 518, 69 NW 1114 (1897).

I. Loss of Expected Inheritance

§3.25 Loss of an expected inheritance might be recoverable in an appropriate case. Grimes v King, 311 Mich 399, 18 NW2d 870 (1945). The Grimes court established the following principle:

The deceased had an established earning capacity as a music teacher and had she lived throughout her expectancy could have added to the worth of her estate in which her heirs at law would participate. Under the statutory provisions … they would also participate in the distribution of the damages assessed and collected.

Id. at 415. But see Baker v Slack, 319 Mich 703, 30 NW2d 403 (1948). Although the Grimes court would permit loss of an expected inheritance as an element of damages, the Baker court found it too speculative. In a sense, any award for future damages is uncertain and speculative to some extent. If the proofs reasonably demonstrate accretions in the decedent’s personal estate, a pattern of thrift, and the accumulation of property for later years, a jury could well find a loss.
Most jurisdictions permit recovery for loss of an anticipated inheritance. Martin v Atlantic Coast Line RR Co, 268 F2d 397 (5th Cir 1959); Salinas v Kahn, 2 Ariz App 181, 407 P2d 120, (1965), modified on other grounds, 2 Ariz App 348, 409 P2d 64 (1965); Annotation, Wrongful Death Damages for Loss of Expectancy of Inheritance from Decedent, 91 ALR 2d 447. In Michigan, however, it is still unclear under what circumstances a wrongful death recovery may include the loss of an expected inheritance. See Brown v Department of State Highways, 126 Mich App 392, 337 NW2d 76 (1983).

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