Loss of Society and Companionship

Loss of Society and Companionship

§3.14 Damages for loss of society and companionship compensate for the destruction of family relationships when one family member dies. This loss is measured by the fact finder’s assessment of the decedent’s relationship with the claimant. This assessment can be made by looking at objective behavior, as indicated by the time and activities shared and the overall characteristics of the relationship between the decedent and the claimant. McTaggart v Lindsey, 202 Mich App 612, 509 NW2d 881 (1993); In re Claim of Carr, 189 Mich App 234, 471 NW2d 637 (1991). In McTaggart, because the court found that the decedent’s father had almost completely shirked his parental duties and, as a result, failed to develop a relationship with his daughter sufficient to permit recovery of damages for the loss of his daughter’s society and companionship, all damages for loss of society and companionship were properly awarded to the decedent’s mother. However, the court remanded the case for a determination of whether an award should be made to the estate for the decedent’s pain and suffering, in which case the father could assert a claim under the laws of intestacy. In Carr, the court upheld the trial court’s award of $20,729 to the somewhat estranged son of the decedent, with the $259,366 remainder of the net proceeds for loss of society and companionship going to the decedent’s spouse.

If the evidence supports it, an instruction allowing future damages for loss of companionship must be given. Lamson v Martin, 182 Mich App 233, 451 NW2d 601 (1990). In Lamson, the court gave the standard jury instruction on loss of companionship in a wrongful death action (now M Civ JI 45.02). However, plaintiff asked the trial court to modify the standard jury instruction on computation of future damages (now deleted) to the effect that these damages could be awarded for “the length of time each probably would have sustained damages as I previously instructed.” Id. at 235. The court denied the request and instead gave the standard instruction on computation of future damages, which allows damages for “the length of time each probably would have received services or other benefits.” Id. at 234. The court of appeals held that the trial court’s denial of plaintiff’s request constituted reversible error. The wording of the standard instruction on future damages as given would probably lead the jury to conclude that future damages were limited to services and other such benefits but, on the facts of this case, the primary element of the plaintiff’s damages was future loss of companionship.

Anyone having a right to make a claim for loss under MCL 600.2922 has a right to have his or her claim submitted to the jury. However, an exception to this rule exists when, in the judgment of the attorney for the estate, submitting the claim could prejudice the estate’s entire case. Roberts v Gateway Motel of Grand Rapids, Inc, 145 Mich App 671, 377 NW2d 895 (1985).

Claims for loss of society and companionship are not limited to the surviving spouse. Courts have consistently upheld significant damages awards to heirs and next of kin for loss of society and companionship. In one case, four adult siblings recovered $500,000 for loss of the love and affection of their sister. Davis v Lhim, 124 Mich App 291, 335 NW2d 481 (1983), remanded on other grounds, 422 Mich 875 (1985). A verdict of $1,145,000, awarded to the parents and three siblings of a 13-year-old boy for loss of his society and companionship, was upheld in May v Grosse Pointe Park, 122 Mich App 295, 332 NW2d 411 (1982). And in Larion v Detroit, 149 Mich App 402, 386 NW2d 199 (1986), the court affirmed an award of $1,200,000 to two minor children for loss of their mother’s society and companionship. In a precap product liability action, the court of appeals upheld an award of $3,150,000 under the WDA for loss of familial consortium to the decedent adult’s brother and 19-year-old son. Kirk v Ford Motor Co, 147 Mich App 337, 383 NW2d 193 (1985).

Evidence of the surviving spouse’s remarriage is inadmissible on the issue of damages recoverable for loss of consortium. Wood v Detroit Edison Co, 409 Mich 279, 294 NW2d 571 (1980). But how are children from a subsequent marriage to be explained? The court of appeals has held that evidence of subsequent births following an undisclosed remarriage may be excluded if the prejudicial effect would outweigh the probative value—for example, if the jury might think the plaintiff was having children out of wedlock. Jones v Sanilac County Rd Comm’n, 128 Mich App 569, 342 NW2d 532 (1983).

The court must distribute compensation awarded for loss of society and companionship in fair and equitable amounts to those persons entitled to damages, considering the relative damages sustained by each. MCL 600.2922(6)(d).

Depending on the theory of the underlying claim, noneconomic damages may be subject to a cap or may be eliminated altogether if the jury finds the plaintiff is more than 50 percent at fault. See §2.3.

A loss-of-consortium claim may not be included in a wrongful death action when the action is based on the motor vehicle exception to governmental immunity. In Wesche v Mecosta County Rd Comm’n, 480 Mich 75, 746 NW2d 847 (2008), the supreme court held that the exception, MCL 600.1405, does not authorize a claim for loss of consortium against a governmental agency because a loss of consortium is not a “bodily injury” under the statute. The court also held that the WDA does not expand immunity in motor vehicle exception cases to include loss of consortium. The court indicated that loss of consortium is the same as loss of society and companionship in a wrongful death claim, but that since loss of consortium is not a “bodily injury” under MCL 600.1405, it cannot be claimed in a motor vehicle exception case.

Subscribe To Our Newsletter!

Subscribe To Our Newsletter!

Join our mailing list to receive the latest news and updates from our firm.

You have Successfully Subscribed!