Burchett v. Rx Optical ( 1999 )

Neff, P.J.,

([concurring in part and dissenting in part). I concur with the majority that the trial court properly granted defendant’s motion for summary disposition with respect to plaintiff’s attempt to seek redress on Jacob’s behalf under the Whistleblowers’ Protection Act, MCL 15.361 et seq.; MSA 17.428(1) et seq. However, I would hold that plaintiff is entitled to proceed under the Civil Rights Act (CRA), MCL 37.2101 et seq.; MSA 3.548(101) et seq., and the Michigan Handicappers’ Civil Rights Act (hcra), MCL 37.1101 et seq.; MSA 3.550(101) et seq., and write separately to address the issue of derivative liability, which, because of the unique relationship between an unborn child and its mother, and the particular allegations set forth in plaintiffs complaint, is critical to the resolution of this case.

Although the concept of derivative liability is not always clearly articulated, it generally refers to a claim in which the plaintiff seeks damages for a wrong done to the plaintiff that is proximately caused by a wrong done to another. Generally, the inquiry whether a claim is “derivative” focuses not on how the injury occurred but on whether the claimed damages are based on the plaintiffs own injury, or that of another.

A common example of derivative liability is that of loss of consortium, which cannot exist without a prior injury to a spouse. See Berryman v Kmart Corp, 193 Mich App 88, 94; 483 NW2d 642 (1992). The alleged damages are separate and distinct from any damages to the physically injured spouse, yet they are dependent both legally and causally on the latter. Our Supreme Court has recognized that a claim for loss of consortium is derivative “but only in the sense that it does not arise at all unless the other, impaired spouse has sustained some legally cognizable harm or injury,” and treats such a claim not as an item of damages, but as a separate cause of action. Eide v Kelsey-Hayes Co, 431 Mich 26, 29; 427 NW2d 488 (1988).

The facts alleged in the present case do not fit neatly into a recognized category. Unlike a loss of consortium claim, plaintiffs complaint on Jacob’s behalf does not seek compensation for damages suffered by or on account of an injury to plaintiff. Neither is Jacob a mere assignee of plaintiff’s cause of action. Rather, plaintiff in her representative capacity seeks to recover for various injuries allegedly sustained by Jacob as a result of statutory violations involved in the termination of plaintiff’s employment. Plaintiff alleges that defendant’s violation of the CRA and hcra resulted in injuries and damages to both plaintiff and Jacob and gave rise to two separate and distinct claims. Viewed in this light, Jacob’s independent claim is not truly derivative because it is based on his own separate and distinct injuries, not those of plaintiff.

However, Jacob’s claim is not entirely independent. This is not a situation where, for example, an unborn child is injured by a violent blow to the mother’s abdomen, or where a mother and her unborn child are both injured simultaneously by breathing toxic fumes. See, e.g., Hitachi Chemical Electro-Products Inc v Gurley, 219 Ga App 675; 466 SE2d 867 (1995); Ransburg Industries v Brown, 659 NE2d 1081 (Ind App, 1995). In these examples, the injury to the unborn child is direct. In contrast, the claimed injury to Jacob allegedly flowed, both temporally and causally, from the alleged injuries to plaintiff caused by defendant’s alleged statutory violations. That is, defendant caused no direct physical harm to Jacob in útero; rather, defendant’s alleged statutory violations caused plaintiff to suffer stress which, in turn, allegedly caused Jacob’s premature birth and resultant injuries. Jacob’s injuries allegedly would not have existed absent plaintiff’s status as defendant’s employee; therefore, plaintiff’s action on Jacob’s behalf “derives” from her own injury. Accordingly, Jacob’s claim is independent insofar as it seeks redress for his own injuries, but is also derivative because it depends on plaintiff’s status as defendant’s employee and defendant’s alleged violation of the cra and the hcra.

Regardless of the term used to describe it, whether a cause of action exists under these circumstances rests on the issue of duty. See Heurtebise v Reliable Business Computers, Inc, 452 Mich 405, 426; 550 NW2d 243 (1996) (as a general rule, “where a statute imposes upon a person a specific duty for the protection or benefit of others, neglect or refusal to perform the duty creates a liability for any injury or detriment caused by such neglect or refusal, if the injury or hurt is of the kind which the statute was intended to prevent”). If plaintiff’s claim on Jacob’s behalf were purely derivative, then the alleged violation of defendant’s statutory duties to plaintiff would support the claim on Jacob’s behalf without regard to whether defendant owed any duty to Jacob. On the other hand, if the claim on Jacob’s behalf were entirely independent, then defendant must be shown to have a duty to Jacob as well as to plaintiff, his mother. As previously stated, the unique facts presented here do not fit precisely into either category.

In Eide, supra, the Supreme Court held that nothing in the CRA precludes a derivative cause of action for loss of consortium. Id. at 30. The Court stated that the comprehensive scheme of the cra must be liberally construed “to suppress the evil and advance the remedy.” Id. at 34. The Court further noted that the opening clause of the civil enforcement provision of the CRA, “[a] person alleging a violation of this act ....,” should be read to include claims by nonemployees such as those for loss of consortium. MCL 37.2801(1); MSA 3.548(801)(1); Eide, supra at 34-35. I believe a similar result is required here. Using the analysis set forth by the Supreme Court in Eide, I find nothing in the CRA that would preclude this claim— which is in a sense both derivative and independent— from proceeding.

I would likewise find that summary disposition was erroneously granted regarding plaintiffs claim on Jacob’s behalf under the HCRA. See Milnikel v Mercy-Memorial Medical Center, Inc, 183 Mich App 221, 223-224; 454 NW2d 132 (1989) (holding that, in the absence of any indication of legislative intent to the contrary, a claim of loss of consortium is not precluded by the hcra).

I recognize that plaintiff may have significant problems establishing that defendant’s alleged violations of the CRA and the HCRA proximately caused any of Jacob’s injuries. Nonetheless, on the basis of the allegations contained in plaintiff’s complaint, I conclude that plaintiff should be permitted to proceed under these two statutes. Accordingly, I would reverse the trial court’s grant of summary disposition regarding counts n and m of plaintiff’s complaint.