"Death, in Michigan, is not a 'bodily injury' "

  In yet one more example of political activism at the expense of innocent consumers, the Engler majority on the Michigan Supreme Court has denied the victim's family the right to sue a government agency when the government driver negligently kills an innocent person.  They denied mom and dad's right to sue for their daughter's death by negligent operation of an ambulance, and denied a wife's claim for consortium when her husband was read-ended by a Road Commission claim.  Defenses that were universally and thoroughly dismissed by knowledgeable attorneys have now become the law of our state.

     Shakespeare said it most succinctly:  "Methinks he dost protest too much."  In other words, if someone takes too many words to explain their actions or their decision, we become suspicious.  The more baroque or complicated the explanation becomes, the more we wonder about its sincerity.

     I was reminded of this common sense observation last week as I read the opinion authored by the Engler majority in Wesche v. Mecosta and Kik v. Kinross Charter Township.  In these consolidated cases, the four Engler arch conservatives held that the so-called "motor vehicle exception" to governmental immunity allows a victim to sue for "bodily injury" but not for wrongful death.  It eliminated all family member claims arising out of any victim's injury or death, based upon a tortured interpretation of the statutory language and intent.  The opinion overturned the decision of a special panel of the Court of Appeals, which had been convened to address this specific issue and which concluded that immunity had been waived in "bodily injury" cases, including "wrongful death".  Three Justices of the Supreme Court disparaged the lead opinion of the Supreme Court majority as an exercise in judicial activism, placing form over substance. 

     Even the justification offered by the four majority conservatives was suspect:  they noted that the family members who survive a loved one's wrongful death have independent claims that are not a "bodily injury", despite the fact that these "independent" derivative claims cannot be pursued except through the Estate of the victim of a bodily injury.  If this sounds confusing and counter-intuitive, it isn't only a problem with our writing skills:  it is an absurd result that cannot be justified by logic or experience.  Just one more sad day in Michigan jurisprudence.  We used to think that we were overly cynical in our interpretation of the Engler majority's decisions:  the opinion in the Wesche and Kik cases confirms that we were not cynical enough.