The Ultimate Michigan

Wrongful Death Lawsuit Handbook

A Practical Guide to Understanding The Michigan
Wrongful Death and Accidental Death Lawsuits

by
Michigan Wrongful Death Attorney
Lawrence J. Buckfire

Copyright 2016 by Lawrence J. Buckfire

All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written
permission of the author.

Printed in the United States of America.

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Who I am and why I wrote this book

I am attorney Lawrence J. Buckfire and I'm a partner at the law firm of Buckfire & Buckfire,
P.C. I have an undergraduate degree in economics from the University of Michigan and a law
degree from the Wayne State University School of Law. Our law firm has helped injury and
accident victims for the last 50 years throughout the entire state of Michigan.

As an attorney, I have won numerous awards and accolades in the legal profession for skill,
integrity, and success in the courtroom. These include:

"Best Detroit Personal Injury Lawyer" by DB Magazine

"Best Michigan Personal Injury Attorney" by American Lawyer Academy

Earned highest rating of 10.0 by AVVO, the top Internet Lawyer Rating Service

Top AV Peer Rating for Skill & Integrity by Martindale-Hubbell

Best Lawyer by U.S. News & World Report

Best Law Firms in Michigan

Selected as a "Super Lawyer"

Named by The Best Lawyers in America

Top 100 Trial Lawyers in Michigan

Top 100 Litigation Lawyers in Michigan by American Society of Legal Advocates

10 Best Michigan Law Firms by American Institute of Personal Injury Lawyers

National League of Renowned Attorneys

If you are looking for a lawyer with integrity, who possesses significant knowledge of the
complex insurance and liability laws relating to wrongful death, you should seriously consider
choosing my law firm for your case. We have a staff of top-rated lawyers and an excellent legal
support team. I have achieved excellent results for my clients and will do the same for you.

I wrote this book to help you understand your legal rights if a family member died from an
accidental death, intentional act, or from negligence. The laws in Michigan that apply to fatal
accidents and wrongful death are very complicated. This book was written to make these laws
easy to understand for someone who is not a lawyer or judge.
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This book may not answer all of your questions and simply cannot cover every aspect of the
Michigan wrongful death laws. I am very proud to say that I have personally helped hundreds of
people, just like you, with their cases since 1989. To learn more about my record of success,
please visit my firm's website for some examples of the great settlements and jury verdicts that I
have obtained for my clients.

I always look forward to sharing my expertise with new clients and gladly speak with all persons
who call my office. If you know someone who would benefit from this book, please have them
call me and I will send them a copy free of charge.

Legal advice
I am not allowed to give legal advice in this book and you should not take the information in the
book as legal advice. It is intended to be informative and to provide you and your family with a
basic understanding of your rights. If you hire my firm to represent you or a family member for a
case, I will fully explain to you your legal rights under Michigan law and assist you in filing your
claims. If you have already hired a lawyer before reading this book, you should contact your
lawyer with specific questions about your rights and benefits.

Lawrence J. Buckfire, Attorney at Law

BUCKFIRE & BUCKFIRE, P.C.
larry@buckfirelaw.com
Specializing in Wrongful Death Claims & Lawsuits
www.BuckfireLaw.com
Toll-Free: (800) 606-1717

Choosing the right lawyer for your case

Do all lawyers in Michigan know how to handle wrongful death cases?

No. The wrongful death laws are complex and this type of case requires an attorney with
the experience, knowledge, and skill of winning these cases.
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The fact that Attorney Ernie drafted a will for your uncle or that Lawyer Linda handled
your cousins divorce case does not make them qualified to handle a wrongful death case. Many
attorneys who claim to be specialists in personal injury cases do not know the intricacies of the
laws relating to wrongful death lawsuits.

While many lawyers will offer to represent you in your case, it is important to choose a
lawyer to represent you that handles wrongful death cases every day and has significant
experience and expertise in representing injury victims. Lawyers without this knowledge and
experience may make crucial mistakes that can cost your opportunity to obtain a settlement in
your case.

How do you find the best lawyer for your case?

The best way to find the right lawyer is to know the right questions to ask before you hire a
lawyer for your case. These questions are a good start:

1.

What experience do you have handling wrongful death cases?

2.

Have you written a book, like this one, on cases relating to wrongful death laws
and lawsuits?

3.

Have you spoken to groups of other lawyers and professionals about accident
cases and insurance laws?

4.

Do you have a website with information on wrongful death laws?

5.

What kinds of settlements have you received for your clients?

6.

Have you won any large jury verdicts?

7.

Do you have real client reviews and testimonials that I can read and watch?

8.

How my five-star Google Reviews do you have?

Our lawyers at Buckfire & Buckfire P.C. will give you honest answers to these questions.
Our firm has represented injury victims and their families throughout the state of Michigan for
more than fifty years. Our attorneys have the thorough knowledge, expertise, and experience in
handling these cases and understand how to handle difficult cases and best represent our clients.
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Most of our clients are referred to us from other clients who have placed their trust in us
to represent their family members, friends, and colleagues. We also receive many referrals from
other lawyers and from medical professionals who recognize that we are the law firm to best
represent their clients and patients.

What does wrongful death mean anyways?

Wrongful death is a legal term for a civil action in which damages are sought against a
party for causing a death. The claim is brought in a civil lawsuit, usually by close relatives,
against the person, company, governmental agency, business or other entity that was at fault for
causing the death. The lawsuit seeks compensation for the surviving family members of the
person who died.
A wrongful death lawsuit is different than a criminal prosecution against the wrongdoer.
The criminal case is brought by the government after reviewing recommendations from the
police about whether a death resulted from some type of crime. The prosecutor then determines
whether to charge the wrongdoer with a criminal offense. Money damages are not awarded in a
criminal case, except possibly for restitution to the victims family, but this is not intended to
compensate the family for the loss of the loved one.
Many times, there may be a criminal case and a wrongful death lawsuit related to the
same incident. For example, the prosecutor may criminally charge a drunk driver in a fatal
accident and request a prison sentence. The family can still file a wrongful death lawsuit against
the intoxicated driver and any other responsible parties in a civil proceeding.
There are different legal standards for proving each type of case so they are handled
separately; the criminal case by the prosecution and the civil case by a wrongful death lawyer.
Even if the wrongdoer is not charged criminally or is found not guilty at a criminal trial, that
person may still be liable for damages and compensation in the civil lawsuit. The victims
family should pursue a case, even if the prosecutor decided not to proceed with criminal charges.

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What are the most common types of wrongful death cases?

A wrongful death case can be filed for any type of accidental or intentional death of a
person. Most cases are related to fatal accidents or medical negligence, but cases can also be
brought for intentional shootings, assaults, and other criminally reckless conduct.
The most common types of wrongful death lawsuits arise from these incidents:

Motor vehicle accidents, like auto, motorcycle, truck, bicycle, and pedestrian.

Commuter accidents, like plane crashes, train accidents, and bus accidents.

Medical negligence, like cases against doctors and hospitals.

Nursing home negligence for falls, choking, pressure sores, and other abuse.

Dangerous products (products liability).

Slip and fall, and defective premises.

Poisonings, like carbon monoxide, lead poisoning, and food poisoning.

Fires, electrical injuries and explosions.

Dog bites and attacks.

Recreational accidents, like drowning, water sports, and hunting.

Police shootings and beatings.

Shootings, both intentional and accidental.

Construction accidents.

Work-related injuries.

There are many other types of incidents that can cause an accident or intentional death
and many can give rise to the filing of a wrongful death lawsuit.

What is the Michigan Wrongful Death Statute?

The Michigan Wrongful Death Statute is the law that controls lawsuits. It is formally
known as the Michigan Wrongful Death Act. The Michigan Wrongful Death Act, MCL
600.2922, states:
(1) Whenever the death of a person or injuries resulting in death shall be
caused by wrongful act, neglect, or fault of another, and the act, neglect, or
fault is such as would, if death had not ensued, have entitled the party
injured to maintain an action and recover damages, the person who or the
corporation that would have been liable, if death had not ensued, shall be
liable to an action for damages, notwithstanding the death of the person
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injured, and although the death was caused under circumstances that
constitute a felony.
The Michigan Wrongful Death Act is detailed with respect to the requirements of filing a
lawsuit. Specifically, the act states:
1. Who can file a Michigan Wrongful Death Act Lawsuit.
2. Which family members have priority to file a Michigan Wrongful Death lawsuit.
3. The legal procedures for notifying other family members that a claim has been
filed and their legal rights in a Michigan Wrongful Death Act lawsuit.
4. The types compensation that can be sought and obtained in a lawsuit.
5. The legal procedures and requirements for filing the lawsuit.
6. The legal procedures and requirements for settling the lawsuit.
7. The procedures for disbursing the settlement proceeds to the family members.
All wrongful death lawsuit cases in Michigan are controlled by this act and procedures
must be followed from start to finish, or the court will not permit a settlement or distribution of
the settlement money. Lawyers experienced with these cases understand all of these
requirements and follow them closely.

Who can bring a wrongful death lawsuit in Michigan?

Michigan law specifies who may file a wrongful death lawsuit. The person who files the
wrongful death case must first be appointed or authorized by the probate court. This person is
known as a personal representative. Essentially, this person acts on behalf of the deceased
persons estate and is given authority by the court to file suit for the purpose of recovering
damages as a result of decedents wrongful death.
The personal representative is usually a close relative of the decedent, like a parent, child,
or spouse. If the decedent had a will or trust, that document may specify the identity of the
personal representative. There are times when the court will appoint a trustee or other
administrator who is not a family member to the position.
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The person who brings the wrongful death case has a legal obligation to the other
interested parties in the action (like other family members or beneficiaries) to act in good faith in
pursuing the case. This means that he or she has an obligation to protect the interests of the
estate and all beneficiaries who may have a legal right to recover damages in the lawsuit. The
personal representative does not get to keep the settlement proceeds and the shares of any
settlement are determined by the trial judge at the end of the cases.

Who sets up the probate estate with the court?

Most times, there is no probate estate opened at the time the attorney is hired to pursue
the wrongful death lawsuit. In these situations, our firm will pay a lawyer specializing in probate
cases to prepare all the necessary paperwork to open the estate and have the personal
representative appointed. We also pay the costs associated with opening the estate.

What are the steps to file a Michigan wrongful death lawsuit?

To commence a wrongful death lawsuit, you must file documents (also called pleadings)
with the court, along with a fee paid to the court clerk. These pleadings are called the summons
and Complaint. The summons informs the person being sued that a lawsuit was filed and that a
response to the lawsuit is due within a certain period of time. The complaint describes the
particular cause of action or legal theory that is being alleged against the person or company
being sued, along with a description of the facts that support the claim.
The wrongful death complaint will usually identify the parties, the facts or circumstances
surrounding the decedents death, and the specific laws which support or authorize the wrongful
death cause of action.
The person who files a wrongful death lawsuit is called the plaintiff. The person or party
that is being sued is called the defendant. Usually the plaintiff must arrange to serve personally a
copy of the summons and complaint on each defendant. The lawsuit is usually divided up into
different stages: (1) information gathering or discovery phase, (2) pre-trial preparation stage, (3)
pre-trial settlement or alternative dispute resolution stage, and (4) trial. The length of each of
these stages or phases will depend on the complexity of the case as well as the laws of the
jurisdiction where the case is being prosecuted.

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Are there time deadlines for filing a wrongful death lawsuit?

The wrongful death lawsuit must be filed in court within a certain period of time. This
period or deadline is called the statute of limitations. This is why it is extremely important to
consult with an experienced wrongful death attorney in the actual jurisdiction where the case
must be filed.
In Michigan, the statutes of limitations for different case types are:
Motor vehicle accident

(3 years)

Defective premises

(3 years)

General negligence

(3 years)

Dog attack

(3years)

Products liability

(3 years)

Medical negligence

(2 years)

Nursing home neglect

(2 years)

Governmental liability

(2 years)

Some case types have exceptions to these deadlines and it may be possible to extend the
period for filing a lawsuit, like medical negligence cases. Many case types, like those against
governmental entities, require other forms of written notice in a very short time after the death in
order to purse a case. It is very dangerous to wait too long after the death to contact a lawyer to
begin investigating your case because missing a deadline will destroy your case.
Another reason to contact a lawyer quickly is because important evidence in the case may
be lost or destroyed. Witness memories can fade over time, or important witnesses may move
and not be easily located. Generally, the more time that elapses following a wrongful death, the
greater the likelihood that important evidence may be lost or destroyed.

Where does the wrongful death lawsuit get filed?

The courthouse location where a wrongful death lawsuit is filed is also stated in a
Michigan statute. Typically, the lawsuit is filed in the original county where the injury or
accident occurred. This may be different than the county where the person died.
In certain circumstances, the case can be filed in the county in which a defendant resides,
has a place of business, or conducts business, or in which the registered office of a defendant

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corporation is located. In other circumstances, it may be possible to file the lawsuit where the
plaintiff resided prior to death.
The court where the lawsuit is filed may also depend on the type of lawsuit and if either
party was a resident of another state. These facts can determine if the case will be filed in a state
court or a federal court. They can also determine if the suit will be filed in Michigan or in
another state. The parties often dispute the proper location for the lawsuit and it is ultimately the
judges determination of the proper courthouse for the case.

What is the process after the lawsuit is filed?

The first step is to notify all heirs and interested parties of the lawsuit as required by the
statute. The next step is to serve the lawsuit on the defendants. Once the Complaint is served,
the defendants will have to file a written answer to complaint stating responses to the allegations
in the lawsuit.

The discovery phase

The next step is called the discovery process. This is the part of the case where each
party tries to learn more about each others position in the case and to obtain all evidence to both
prove and defend the case. This process can take anywhere from six months to a year or more,
depending on the schedule set by the court.
There are many different forms of discovery. One form of discovery may entail sending
or answering written questions, called interrogatories. There may also be written requests for
production of documents and other tangible materials that are relevant to the claims being made
in the action. There may be limits to the number of written questions or requests that may be
exchanged, depending on the local discovery rules.
Our attorneys will assist you in answering all of these questions and tracking down the
information to give the responses. When the interrogatories and requests for production are
answered and completed, the personal representative must execute a document stating the
answers and responses are true and accurate. This must be witnessed by a notary public.
Another form of discovery may include a deposition. A deposition is a face-to-face
meeting where the attorneys are allowed to ask a witness questions under oath while a court
reporter transcribes the session. Any witness who may offer testimony at trial can be deposed,
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including the personal representative, a beneficiary, the decedents doctor, the medical examiner
or coroner, other family members, eyewitnesses, and experts involved in the case.
The deposition is a very important legal proceeding that should almost always involve
preparation on the part of the wrongful death attorney and the person who is going to be deposed,
particularly if that person is the personal representative or a surviving relative. The persons
performance at the deposition can have a huge influence on the value or success of the wrongful
death case, usually because these individuals are very important in communicating and
establishing the extent of the losses caused by the wrongful death.
In addition to interrogatories, requests for production, and depositions, each sides lawyer
may also be permitted to issue a subpoena for the collection of documents or items in another
partys control. For instance, the wrongful death attorney may wish to subpoena the medical
examiners records for the purpose of establishing the cause of death. Other documents, like
financial, employment, and medical records may be requested by subpoena to help establish
various elements or issues involved in the case.
In many cases, the sides each hire expert witness to help the jury understand key portions
of the case. Experts are often used to prove liability or cause of death. They also are used to
prove damages, like loss of earnings and support. The attorneys also usually take the depositions
of expert witnesses.

Mediation or facilitation
When discovery is finally completed, and each side generally knows what evidence will
likely be offered at trial, the parties may then begin to conduct settlement discussions. Many
counties have a process called case evaluation, in which three attorneys, appointed by the court,
review written summaries and discuss the case with the attorneys for each party. The panel then
places a non-binding settlement recommendation amount for the case. This can help the parties
either settle the case or at least get settlement negotiations moving forward.
Many times, the trial judge may also order the parties to attend a private mediation, also
called facilitation. In these situations, a private attorney or even a retired judge spends several
hours with the parties trying to negotiate a final settlement. Everything that is said to the
mediator is completely confidential and will not be shared with the opposing party unless
permission is given to the mediator. These meetings often result in the case being settled.
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Trial
If the case does not settle after a mediation or settlement conference, the case may
proceed to trial. Usually, the case is tried before a jury with the judge presiding. In some cases,
the judge may sit as the sole decision maker for the lawsuit.
Going to trial in a wrongful death case requires a tremendous amount of resources, time
and preparation. The wrongful death attorney usually has to invest a substantial amount of
money and time in the case to conduct depositions, hire and prepare experts, create trial exhibits,
and draft and prepare the necessary documents that must be filed in court. Of course, the other
side has to do the same things in order to defend the case.
The wrongful death trial is usually more complex than a typical accident claim.
Typically, there are more experts and other witnesses involved, which means the wrongful death
trial can easily take weeks or months to conclude. The wrongful death trial is usually much more
physically and emotionally exhausting. The case by its very nature involves a terrible fact: a
persons life was lost due to someone elses negligence. As a result, peoples emotions usually
run very high, especially among the surviving relatives and family members.
Insurance companies that defend these lawsuits have no emotion whatsoever. To the
company, it is simply about money and the amount it will cost to either settle the case or to
defend the case at trial. They may attempt to dangle a small settlement in front of the family to
get the case resolved before the trial starts or just after the start of the trial. This is why it is
preferable that the wrongful death case is handled by an experienced and competent attorney
who not only has the expertise to pursue the claim but also the financial resources to take the
case all the way to trial if necessary.
Many people want to avoid going to trial. They are stressful and can cause additional
emotions and anxiety for everyone involved. Usually a trial is the last resort to resolve the claim.
However, the insurance company and the defendant must know that a party is not afraid to go
through with a trial, or else they will never offer the true settlement value of the cases. This is
usually why it is extremely important that the wrongful death claim be handled by an attorney
who has experience with wrongful death cases.
The jury decides at the end of the trial which party prevails. If the plaintiff, or family, is
the winner, the jury then determines the amount to award for each type of damages. This amount

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then becomes a judgment that must be paid. The losing party can file an appeal if the trial judge
made errors before or during the trial and this process can take years to get a decision.

How is compensation determined in a Michigan wrongful death lawsuit?

One of the most important concerns of a wrongful death claimant is obtaining some
reasonable estimation of the amount of compensation that might be received if a case was filed.
It is often difficult to estimate this amount at the outset of the case because there are many
unknowns about the case until the discovery process is completed. Factors include how the
death occurred, the strength of the liability or negligence, how the negligence caused the death,
and impact on the family, and even the amount of insurance policy limits available to pay a
settlement or jury verdict.
First, there is no amount of money that can actually compensate for the loss of a family
member. Money is not an adequate compensation. It does not make the situation fair or
right." If someone is responsible for totally destroying your car, the car can be replaced. There
is no replacement for a lost child, parent, spouse or sibling. The laws of each state form a basis
for compensation, but compensation is not a fair or right substitute for what is lost.
Second, the value of a wrongful death claim is not the value of the deceased person.
Claimants must distinguish the difference between the value of a claim and the value of a
person. Many clients frustrated with a lawsuit settlement often ask, Is that all they think my
loved one is worth? It is shocking to survivors to deal with the difference between the value of
a person verses the value of the claim.
There are many factors that are used to determine the amount of a settlement, including:
1.

The potential damages that can be awarded under Michigan law. These will be

discussed in the next section of the book. Factors include the amount of suffering the decedent
had before death, the relationship the person had with other family members, and whether there
was economic loss to the family members resulting from the death.
2.

The amount of insurance or funds available to pay your claims. Many drivers,

and doctors, have low or minimal insurance policy limits to pay a claim. In fact, many people
are uninsured at the time of the incident.
3.

The degree of fault of the wrongdoer and the facts regarding the incident that

caused death. If the at-fault party was reckless, or if the jury is angered by the conduct of the
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defendant, it will often result in a higher jury verdict. This can put pressure on an insurance
company to pay a higher settlement before a trial to avoid this risk.
4.

The degree of fault, if any, of the person who died or was killed. Under Michigan

law, a damage award can be reduced by the percentage of negligence of the decedent. For
example, if a pedestrian is hit by a car crossing against a walk signal at night, a jury can reduce
the award by a percentage that it determines should be assigned to the victim.
5.

The jurisdiction of your case. Simply put, some counties in Michigan are

understood by lawyers and insurance adjusters to have juries that give more favorable awards
than other counties. Settlements are often higher in those counties.
6.

The particular judge and jury you draw. Judges are assigned randomly to cases,

but many judges are more insurance company-friendly than other judges. The judge assigned to
your case will have a huge impact on the settlement value of the case.
7.

Where there are damage caps on the type of case. Lawsuits for medical

malpractice and defective products may have statutory limit amounts on a case.
8.

The skill and reputation of your legal team. Insurance companies and defense

lawyers know who the best lawyers and law firms are in Michigan for wrongful death lawsuits.
They expect to pay more on a settlement if you have a top legal team on your side.
Unfortunately, there is no calculator or settlement guideline book that pinpoints a
particular dollar value of a case. You can see from the above factors that every case is
completely different and each case must be evaluated by its own specific factors. Juries are a
great unknown and having a few bad jurors on a great case can spoil the outcome.

What are the types of damages available in a wrongful death lawsuit?

The Michigan Wrongful Death Act specifies the categories of damages available to
compensate the surviving family members for a wrongful death claim. These are:
1.

Funeral and burial expenses.

2.

Medical expenses incurred from the time of the incident until death.

3.

The amount of income lost due to the death of the family member, past, present

and future. The amount of income for the past and present can be easily calculated by looking at

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paychecks and tax returns. For loss of future earnings, an accountant or economist will testify as
to how much the person lost over his or her remaining work life expectancy due to the death.
For example, if a 40-year-old husband and father earning $ 50,000 per year dies in an
accident, it can be estimated that he would have worked another 25 years before retirement. The
economist will calculate inflation, increased pay raises, work benefits, and other factors to
determine the amount in present dollars that was lost over the work lifetime. This is often the
major part of the damages claim.
The income lost is primarily for the loss of financial support of the family members. If
the decedent left behind a wife and small children who relied upon him for support, the income
loss claim can extend for the lifetime of the wife and often until the children would have no
longer relied on their father for financial support. If the decedent had no dependents relying on
him for financial support, there may be no award for this type of claim.
4.

The reasonable value of the services of which the surviving spouse and children

have been deprived due to the loss of a loved one. This includes help around the home, bill
paying, maintenance, and other service. Although a mother and father do not get paid for being
parents and running a household, there is a huge value to these services that can be calculated by
an economist. In fact, there are government figures that guide these amounts.
5.

The conscious pain and suffering suffered by the person from the time of the

incident until the time of death. This amount cannot be determined with any specificity and
varies case to case. It is often left for a jury to decide, but medical records and doctor testimony
can be used to support this claim.
Our firm had a recent case in which the jury awarded the estate of a 95-year-old woman
the amount of $3 million for her conscious pain and suffering for the 13-day period between the
incident and her death.
6.

The fright and shock suffered by the person just prior to death. Again, this is for

the jury to determine. In a recent case of a pedestrian killed by a public bus, the jury awarded the
amount of $5 million for less than three seconds of fright and shock.
7.

Reasonable value of the society and companionship which the surviving family

members have been deprived. Basically, this is the amount of money awarded for the impact of
the death and how the loss has affected the family. The time spent and activities shared between

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the family members are a major consideration. If the decedent came from a close-knit family,
the settlement amount or jury verdict for this type of damage is often significant. These damages
are proven through the testimony of family members, photographs, and family videos.
A jury awarded the family in one of our lawsuits the amount of $2 million for their loss
of society and companionship of a loved one.

Can a case settle before filing a wrongful death lawsuit?

There may be attempts to settle the claim before a lawsuit is ever filed. This can happen
if the defendant or an insurance company starts settlement discussions before a case is filed with
the court. Even in this situation, a court must still approve the settlement and how the monies are
distributed to the heirs. No person can settle a wrongful death claim without court permission.

How do lawyers evaluate settlement amounts?

Most claims are resolved prior to trial, either during the claims process or during
litigation in the proceedings, such as mediation or facilitation discussed earlier. A fair and
reasonable settlement can be negotiated if your claim is properly documented and presented to
the insurance adjuster and the defense attorney. Many times, the adjuster will have to present
your case to an insurance company committee to get approval for your settlement. First the case
is evaluated by the adjuster and your attorney.
When evaluating a wrongful death claim, I generally consider the following:
1.

The amount I think the case is worth. When doing this I consider all of the above

elements of your claim and my nearly 30 years of experience in handling wrongful death
lawsuits. All of these are combined for the total value.
2.

Verdicts and settlements of cases with similar fact situations. I look at those cases

I have personally handled, discuss the fact situation with colleagues to get their opinion, and look
at the records and verdicts from trials in the state.
3.

What I consider the chance of winning at trial. Although juries are the great

unknown, an experienced lawyer understands the strengths and weaknesses of every case and has
a good idea regarding the likelihood of prevailing at a trial. The defense attorneys does the same
analysis for the other side.

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4.

The amount of insurance coverage that is available. There must be enough

coverage to cover the judgment you are seeking.

5.

The expectations and goals of my client are very important in evaluating the

settlement value of a case. Essentially, finding out what the family members are looking to gain
out of the case is a major factor in getting the case resolved. Every client has different needs and
goals and satisfying the clients expectations is extremely important to me.

What happens if the case goes to a jury trial?

If the parties are unable to agree on a settlement amount, the case will go to trial. The trial
can last up to several weeks. Witnesses will be called to testify for both sides on issues of
liability, cause of death, and damages. Family members will also testify about the life of the lost
family member and how the loss has affected them.
At the end of the trial, the jury will determine the following issues:
1.

Was the defendant negligent? (If no, there is no money award.)

2.

Was the defendants negligence a proximate cause of the death? (If no, then there
is no money award.)

3.

What is the amount of damages for pain and suffering of the decedent from the
time of incident until death? (The jury will put a dollar figure on this amount.)

4.

What is the amount of economic losses resulting from the death? (This will be for
lost income, loss of support, medical expenses, and funeral expenses.)

5.

What is the amount of damages for the loss of society and companionship for the
surviving family members? (The jury will put a dollar figure on this amount.)

If the family wins the lawsuit, the court will enter a judgment stating the amounts
awarded by the jury. The defendant will then be liable to pay this amount, plus interest to the
estate. The defendant can then file briefs after the trial, asking the judge to lower the award or
throw out the verdict on a number of legal grounds. The judge will hold a hearing on these
issues. If the judge denies the request, the defendants can file an appeal.
The defendant can then file an appeal to the Court of Appeals requesting that the verdict
amount be lowered or completely overturned for different legal reasons. This appeals process can
take several years. If the appellate court reverses the verdict, the case will either be completely
dismissed with no money to the estate or a new trial will be ordered and the case will be tried all
over again to a different jury.

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The appeals court decision can also be appealed to the Michigan Supreme Court for
rulings on the same legal issues. The highest state court can also reverse the jury award
completely, lower the award, or order that there be a new trial with a different jury.

Who gets the shares of a wrongful death settlement?

The Wrongful Death Act specifies which family members are allowed to share in the
settlement. This includes the deceaseds spouse, children, descendants, parents, grandparents,
brothers and sisters. A person who is publicly acknowledged by the deceased to be his or her
child, even if not named on the birth certificate and with DNA evidence, may still be entitled to a
share of the settlement.
Adopted children can receive share and often the children of the deceaseds spouse are
entitled to a settlement share. Former spouses are not entitled to a share unless named in a will
that was executed after the divorce was finalized.
If none of these persons survive the deceased, then those persons to whom the estate of
the deceased would pass under the laws of intestate succession determined as of the date of death
of the deceased. This can get complicated and it is up to a probate judge to determine which
persons would share in the settlement.
Those persons who are devisees under the will of the deceased, except those whose
relationship with the decedent violated Michigan law, including beneficiaries of a trust under the
will, those persons who are designated in the will as persons who may be entitled to damages
under this section, and the beneficiaries of a living trust of the deceased if there is a devise to that
trust in the will of the deceased.

How are the shares for each surviving family member determined?
There is no formula to determine the amount of each share for a family member. In most
cases, the family members agree on the amounts that will be given to specific people. Generally,
the surviving spouse and children of a deceased will receive a higher share than a sibling, parent,
or grandparent. Many times, some family members voluntarily waive their share so another
family member can receive more settlement money.
If a family member is a child or incapacitated person, the judge may appoint a guardian
ad litem to investigate whether the proposed shares to those persons is fair and equitable. The
guardian ad litem, most often an attorney, will then make a written recommendation to the court.
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The judge can then decide whether to adopt the recommendation or can assign a different
amount to the person.
The proposed amount of share for each person must be presented to the trial judge or
probate court judge both in writing and at a court hearing. If there are no objections, the judge
will generally grant the exact share amounts requested by the family. If there is a dispute, the
judge may try to get the parties to resolve the amount before the hearing. Otherwise, the judge
will take testimony and determine the share amount for each family member.

What happens if the parties agree on a settlement amount?

If the parties agree to a settlement amount, the next step is to file a Motion to Approve
Settlement with the court. This is a written brief filed by the wrongful death attorney that
provides the trial judge with background information on the case and the proposed settlement
amount. All heirs are notified of the hearing and can appear in court to observe or object.

The judge will have read the brief before the hearing. The personal representative must
be present at the hearing with the attorney. The judge will place the personal representative
under oath and then the attorney will ask the personal representative questions about the case and
the proposed settlement. The personal representative must state a full understanding of the
proceedings, the terms of the proposed settlement, the amount of attorneys fees, and costs, and
an understanding that the settlement is final and binding upon all heirs forever.
The judge may ask the personal representative and the attorney some additional
questions. The defense attorney may also ask some questions to protect the future interests of
the defendants. The judge will then determine if the settlement is in the best interests of the
estate. If the judge believes the settlement is fair, it will be formally approved and finalized.

The proposed distribution of the settlement money is also often addressed at the same
court hearing. If no one objects to the distribution, the court will typically approve of the
request. The judge will then enter a written Order Approving Settlement and Distribution of
Settlement Proceeds.

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What is a release of all claims?

The Release of All Claims is the formal document signed by the personal representative
that releases the defendant of any and all future claims. Once signed, no heir of the estate can
come back at any time in the future to file a claim relating to the same incident against the
defendant. The signed release is then sent to the defendant in exchange for the settlement check.

Why are some wrongful death settlements kept confidential?

Many times, the defendant does not want information about the settlement to be made
public for a number of reasons. In these cases, the release may contain a confidentiality
provision which restricts any heir or person receiving money to disclose to any person
information about the settlement. There are a few exceptions for people involved in the legal
proceeding, tax preparers, and financial advisers. If this provision is violated, the person may
have to return the settlement money to the defendant as a penalty.

How are the settlement checks distributed to the heirs?

After the settlement is approved by the court and the Release of All Claims is signed by
the personal representative, the insurance company or defendant will send a check to the
wrongful death attorney. The settlement check will be made payable to the personal
representative and the law firm. The check will then be deposited into the firms trust account
and when it clears, individual checks will be made payable to each heir for their share as
determined by the court.

Are the settlement shares taxable by the IRS or state of Michigan?

Generally speaking, the settlement amounts to the heirs are not taxable to the heirs.
However, it is important to speak with your CPA or tax preparer to discuss your particular tax
filings to make sure you are not subject to any type of tax on your settlement share. It is best to
disclose your settlement information to your tax preparer before filing your annual tax return just
to make sure you are not missing an important entry on your return.

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What happens to the probate estate after the settlement is complete?

Once the settlement is finalized and the monies are distributed to the heirs, the probate
estate is closed unless there are other assets not related to the lawsuit to distribute to the heirs.

I hope you found this book to be a valuable resource of information on your legal rights
for Michigan wrongful death lawsuits. Of course, you probably have questions that were not
answered in this book or would like a more detailed explanation of the legal options for your
specific case. You can always pick up the telephone and give me a call at 1-800-606-1717 and I
will answer all of your questions and concerns.

Lawrence J. Buckfire, Attorney at Law

larry@buckfirelaw.com
Specializing in Wrongful Death Lawsuits & Cases
www.BuckfireLaw.com
Toll-Free: (800) 606-1717

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