Shaheen v. Schoenberger , 92 Mich. App. 491 ( 1979 )

92 Mich. App. 491 (1979) 285 N.W.2d 343

SHAHEEN
v.
SCHOENBERGER

Docket No. 78-2979.

Michigan Court of Appeals.

Decided September 20, 1979.

Abood & Abood, P.C., for plaintiffs.

Willingham, Cote, Hanslovsky, Griffith & Foresman, P.C. (by John A. Yeager), for defendant.

Before: DANHOF, C.J., and V.J. BRENNAN and H.R. CARROLL,^[*] JJ.

V.J. BRENNAN, J.

On April 8, 1977, Michael L. Shaheen was riding as a passenger in Michael Mahon's automobile in Florida. At approximately 4:40 a.m., the automobile crossed the center lane of US-1 and collided head-on with a semitrailer truck. Both Mahon and Shaheen were killed.

On July 5, 1978, the parents of Michael L. Shaheen filed a wrongful death action in the Ingham County Circuit Court. As part of their damages they alleged: (1) mental pain and suffering of the deceased passenger; (2) pecuniary damages to the passenger; and (3) loss of support, services and companionship by the parents.

In response, defendant filed a motion for partial summary judgment to limit the elements of damages on the grounds that under the Florida wrongful death statute the deceased's cause of action abated; the parents could recover for pain and suffering only if the deceased were under 18; no action for loss of companionship existed; and the only action open to the parents was for funeral expenses. All parties to this action are Michigan residents.

In reliance upon Abendschein v Farrell, 382 Mich 510; 170 NW2d 137 (1969), the trial judge ruled that lex loci delicti controls, and the amount of damages is to be determined by the Florida statute. Plaintiffs appeal by leave granted.

The case presents one pertinent inquiry: whether the lex fori or the lex loci delicti controls the elements of damages recoverable in a wrongful death action.

Michigan has traditionally followed the lex loci delicti rule in conflict of laws cases. Abendschein v Farrell, supra, at 516, fn 3. However, developments in the law since Abendschein warrant an individualized approach to the question based on the particular circumstances of the case. Branyan v Alpena Flying Service, Inc, 65 Mich App 1, 7; 236 NW2d 739 (1975).

In Branyan, the Court was faced with a question similar to the case at bar, involving whether limitation of damages was to be determined by the wrongful death statute of the lex fori (Michigan) or the lex loci delicti (Virginia). The Court addressed the particular issue and policy considerations involved pointing out that limitations of damages primarily concerns compensation of survivors. Since the survivors in Branyan were Michigan residents, Michigan has the greatest interest in their well-being. Further, Michigan has an enunciated public policy against limitation of damages in wrongful death actions. The Branyan Court then held that Michigan law applied.

The defendant points out that Branyan relied on an airplane crash exception to the lex loci delicti rule set forth in Abendschein and argues that Branyan is inapplicable to automobile crash cases. However, in Sweeney v Sweeney, 402 Mich 234; 262 NW2d 625 (1978), the Supreme Court took a second look at the "hard and fast" rule of Abendschein. After careful analysis the Court held that application of the lex loci delicti (Ohio) which bars suit between a parent and child (based on an automobile accident) would frustrate announced Michigan public policy where the litigants were Michigan residents. Clearly the approach set forth in Branyan was impliedly approved in Sweeney in determining any individual exceptions to the lex loci delicti rule. Thus both Branyan and Sweeney are applicable to the question presented herein. See Storie v Southfield Leasing, Inc, 90 Mich App 612; 282 NW2d 417 (1979).

As set forth above the case at bar involves the elements of damages available to survivors in a wrongful death action. Since the survivors are Michigan residents, Michigan has the greatest interest in their well-being. MCL 600.2922; MSA 27A.2922, sets forth the elements of damages recoverable for wrongful death. The statute embodies the state's public policy in this regard. This policy, coupled with Michigan's interest in the survivors' well-being, operates under the facts in this case to except the elements of damages from the lex loci delicti rule.

The lower court's ruling to the contrary is reversed and the cause is remanded. We retain no further jurisdiction. Costs to be paid to plaintiffs.

NOTES

[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.