In Re Kubiskey Estate

600 N.W.2d 439 (1999) 236 Mich. App. 443

In the Matter of the ESTATE OF Matilda Mary KUBISKEY, Deceased.
Richard Kubiskey, Personal Representative of the Estate of Matilda Mary Kubiskey, Deceased, Petitioner-Appellee,
v.
Kim Munson, Respondent-Appellant.

Docket No. 208130.

Court of Appeals of Michigan.

Submitted March 3, 1999, at Grand Rapids. Decided June 25, 1999, at 9:55 a.m. Released for Publication October 5, 1999.

Jensen & Stuart (by D. Scott Stuart and Joseph L. Milanowski), Grand Rapids, for petitioner.

Hollander & Tocco, PLC (by Stuart J. Hollander), Suttons Bay, for respondent.

Before HOLBROOK, P.J., and MURPHY and TALBOT, JJ.

PER CURIAM.

Respondent appeals as of right from a probate court order granting petitioner leave to distribute the proceeds of a wrongful death settlement. We affirm.

Matilda Kubiskey died intestate at West Shore Hospital on December 28, 1996, after medication intended for another patient was inadvertently administered to her. This case involves the distribution of the $143,000 proceeds of a wrongful death settlement resulting from the hospital's alleged medical malpractice. Petitioner Richard Kubiskey, son of the deceased, was appointed personal representative of the estate. On September 22, 1997, petitioner, as personal representative of the estate, sought leave of the court to settle the wrongful death claim and to distribute the proceeds. The petition identified the persons who might be entitled to a share of the damages, including respondent, and set forth the relative shares that petitioner proposed be awarded to each. Petitioner proposed that $500 be awarded to each of the deceased's seven great-grandchildren, that $1000 be awarded to six of the deceased's grandchildren, and that the balance of the proceeds be divided equally between the deceased's three living children.

The deceased bore four children during her lifetime. Her eldest child, Carol Munson, died in 1976. Respondent Kim Munson is the daughter of Carol Munson and granddaughter of the deceased. Petitioner proposed that respondent receive no share of the proceeds of the wrongful death settlement. On October 3, 1997, respondent filed an affidavit with the probate court in which she requested that she be awarded twenty-five percent of the proceeds. In her affidavit, respondent explained that she left the city of Manistee for California in 1979 to pursue a career in the film industry. She kept in touch with the deceased (who gave her money on occasion) until 1983, when an argument severed their relationship. Because she had recently renewed a relationship with one of her cousins, respondent believed that she would also have renewed her relationship with her grandmother were it not for her grandmother's untimely death.

A hearing regarding the petition for leave to settle the wrongful death claim and distribute the proceeds was held on October 16, 1997. During the hearing, petitioner testified that he discussed the distribution of the proceeds at great length with his two surviving siblings. With regard to respondent's share, petitioner testified as follows in response to questions asked by petitioner's counsel:

Q. And you've also indicated that one of the grandchildren, Kim Munson, is not to receive any money.

A. Yes.

Q. Since that is going to be a subject of contention here today, I ask that you explain this briefly to the Judge, why it is that you have decided on behalf of the estate and on behalf of the family not to give any money to Kim Munson?

A. I believe it was my mother's wishes. She had no contact from 1983 when my father passed away. They had an argument. Kimmy wanted more money. My mother wouldn't send her any. That was the last she heard from her. There were no cards, no birthday cards, no Christmas cards, nothing. And, I know Kimmy was here in town over the years. She spent a month here but there was no contact.

Q. What's your basis for saying that you didn't think that your mother would want Kimmy to get any money?

A. She didn't want Kimmy notified that she was in the hospital.

The deceased's sister-in-law also testified regarding the breakdown of the relationship between respondent and the deceased.

Respondent presented no evidence at the hearing. Instead, respondent's counsel moved to amend respondent's objection to the proposed distribution to request one hundred percent of the proceeds. Relying on subsection 222(f) of the Revised Probate Code (RPC), M.C.L. 700.222(f); MSA 27.5222(f), respondent's counsel argued that respondent was the only interested party entitled to receive a share of the proceeds, because she was the only person to have presented a formal claim for damages to the personal representative. Petitioner's counsel explained in response that he had been working with the family for "eight or ten months," and that "the distribution was developed through some serious long negotiations." He then offered to call every one of the proposed recipients to the witness stand to testify that they wished to "claim" a share of the proceeds. He also argued that formal claims were not necessary because "just about every family member" had formally consented to the petition for leave to settle the claim and distribute the proceeds and waived notice of the hearing.^[1] After considering the parties' arguments, the probate court admitted that it was not familiar with the statute at issue and decided to take respondent's motion under advisement. Petitioner's proffered witnesses were never called. One month later, the probate court issued an opinion rejecting respondent's argument. The court reasoned that "written" claims for damages were "not necessary considering the waivers and consents filed after notice of the intended distribution."

On appeal, respondent first argues (1) that a formal claim for damages is required to receive a distribution of the proceeds of a wrongful death settlement under § 222 of the RPC, and (2) that the probate court erred in its determination that the actions of the personal representative and the other interested persons satisfied the requirements of the statute. We disagree. The first part of respondent's argument on appeal presents a question of statutory interpretation to be reviewed de novo. See Rose Hill Center, Inc. v. Holly Twp., 224 Mich.App. 28, 32, 568 N.W.2d 332 (1997).

In support of her contention that an interested party must present a formal claim for damages to the personal representative in order to receive a share of the proceeds under § 222, respondent relies heavily on the lead opinion released in In re Durbin Estate, 205 Mich.App. 113, 517 N.W.2d 261 (1994). That opinion lacks precedential significance, however, because it was signed by only one judge. Terzano v. Wayne County, 216 Mich.App. 522, 529-530, 549 N.W.2d 606 (1996); see also Fogarty v. Dep't. of Transportation, 200 Mich.App. 572, 574-575, 504 N.W.2d 710 (1993) (explaining that where a majority reaches a decision, but does not agree on the underlying reasoning, no point of law is established by the decision). Accordingly, we are faced with what is, in effect, an issue of first impression.

Because there was no civil action pending under the wrongful death act, the distribution of the settlement proceeds was governed by § 222o the RPC. See M.C.L. § 600.2922(9); MSA 27A.2922(9); Burgess v. Clark, 215 Mich.App. 542, 545-546, 547 N.W.2d 59 (1996). Respondent relies on subsection 222(f), which provides as follows:

A person who may be entitled to damages under this section must present a claim for damages to the personal representative on or before the date set for hearing on the petition for distribution of the proceeds. The failure to present a claim for damages within the time provided shall bar the person from making a claim to any of the proceeds. [MCL 700.222(f); MSA 27.5222(f).]

The goal of statutory interpretation is to identify and to give effect to the intent of the Legislature. Turner v. Auto Club Ins. Ass'n, 448 Mich. 22, 27, 528 N.W.2d 681 (1995); Farrington v. Total Petroleum, Inc., 442 Mich. 201, 212, 501 N.W.2d 76 (1993). The first step in ascertaining such intent is to focus on the specific language of the statute. Turner, supra at 27, 528 N.W.2d 681. The Legislature is presumed to have intended the meaning it plainly expressed. McFarlane v. McFarlane, 223 Mich.App. 119, 123, 566 N.W.2d 297 (1997). Thus, if statutory language is clear and unambiguous, further judicial construction is neither necessary nor permitted, and the language must be applied as written. See Turner, supra at 27, 528 N.W.2d 681; Lorencz v. Ford Motor Co., 439 Mich. 370, 376, 483 N.W.2d 844 (1992).

With respect to subsection 222(f) of the RPC, we agree with the general position advocated by the dissenting judge in Durbin, supra at 119-122, 517 N.W.2d 261 (E.C. Penzien, J. dissenting). The Legislature has plainly provided that the consequence of an interested party's "failure to present a claim for damages within the time provided," is that the interested party is barred from "making a claim to any of the proceeds." (Emphasis added.) "Making a claim" for proceeds is not the same thing as "receiving a distribution" of proceeds, and nowhere in § 222 does it provide that interested parties must "make a claim" in order to receive a distribution of the proceeds. The distribution of proceeds is governed by subsection 222(d):

After a hearing on the petition of the personal representative, the court shall order payment from the proceeds of the reasonable medical, hospital, funeral, and burial expenses of the decedent for which the estate is liable. The proceeds shall not be applied to the payment of any other charges against the estate of the decedent. The court shall then enter an order distributing the proceeds to those persons designated in section 2922(3) of the revised judicature act of 1961, Act No. 236 of the Public Acts of 1961 who suffered damages and to the estate of the deceased for compensation for conscious pain and suffering, if any, in the amount as the court considers fair and equitable considering the relative damages sustained by each of the persons and the estate of the deceased. [MCL 700.222(d); MSA 27.5222(d).]

By the clear language of the statute, the only prerequisites that must be met in order to receive a share of the proceeds are (1) designation in subsection 2922(3) of the Revised Judicature Act, MCL 600.2922(3); MSA 27A.2922(3), and (2) damages. Respondent's interpretation of subsection 222(f) of the RPC would effectively add a third requirement to subsection 222(d), that being the presentment of a claim for damages. See Durbin, supra at 119-120, 517 N.W.2d 261 (E.C. Penzien, J., dissenting). This interpretation does not render subsection 222(f) mere surplusage. By barring interested parties who fail to present a claim within the time provided from thereafter making a claim, subsection (f) lends a substantial degree of finality to the distribution process, because it prevents notified interested parties from making claims for damages after the proceeds have been distributed.

Because we now hold that the presentment of a claim for damages is not a prerequisite to receiving a share of the proceeds of a wrongful death settlement under § 222 of the RPC, we need not address respondent's contention that the trial court erred in its conclusion that the other interested parties satisfied the "requirements" of subsection 222(f).

Respondent next argues that the probate court erred in approving the distribution of proceeds proposed by petitioner. We disagree. An order distributing the proceeds of a wrongful death settlement is reviewed for clear error. See McTaggart v. Lindsey, 202 Mich.App. 612, 615-616, 509 N.W.2d 881 (1993). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Id.

Here, it is undisputed that respondent had no relationship whatsoever with the deceased during the final thirteen years of the deceased's life. Moreover, petitioner testified that during that thirteen year period respondent made no effort to contact the deceased in any way. Respondent presented no evidence at the distribution hearing. Given the circumstances, we cannot say that the probate court's determination was clearly erroneous. Cf. McTaggart, supra at 616-617, 509 N.W.2d 881.

Affirmed.

NOTES

[1] On the day of the hearing, petitioner filed "Waiver/Consent" forms signed by each of the grandchildren and great-grandchildren above the age of majority, including respondent. (Respondent had earlier withdrawn her waiver and consent when she filed the affidavit claiming a right to share in the distribution of the settlement proceeds.) Six of the seven great-grandchildren were minors represented by a guardian ad litem at the distribution hearing. On October 27, 1997, the guardian ad litem filed a statement approving the proposed distribution. Petitioner's two siblings filed "Waiver/Consent" forms at the initiation of the probate proceedings indicating their consent to the appointment of petitioner as the personal representative and waiving notice to "any and all" hearings regarding the estate.