AYESHA HAQUE, as Personal FOR PUBLICATION
Representative of the Estate of August 20, 1999
SAZZADUL HAQUE, Deceased, 9:20 a.m.
Plaintiff-Appellant,
v No.207270
Oakland Circuit Court
OAKLAND PROBATE JUDGE, LC No.97-000686 AS
Defendant-Appellee,
and
WILLIAM BEAUMONT HOSPITAL,
Intervening Appellee.
AYESHA HAQUE, as Personal
Representative of the Estate of
SAZZADUL HAQUE, Deceased,
Plaintiff-Appellant,
v No.207274
Oakland Probate Court
WILLIAM BEAUMONT HOSPITAL, LC No.97-260625 IE
Intervening Appellee.
Before: Bandstra, C.J., and Whitbeck and Talbot, JJ.
WHITBECK, J.
Plaintiff-appellant Ayesha Haque (“Haque”) appeals as of
right an Oakland County Probate Court (the “Probate Court”) order
vacating appointment of fiduciary and an Oakland County Circuit
Court (the “Circuit Court”) order denying superintending control.
We affirm in part, reverse in part and remand for further
proceedings.
I. Basic Facts And Procedural History
On October 16, 1997, Haque filed a petition for commencement
of proceedings1 with the Probate Court requesting that her
decedent’s2 will be admitted to probate and that administration
be granted to her as the personal representative named in the
will. The petition indicated that Haque’s decedent died on April
25, 1995, at the age of forty-three. The petition further
indicated that on the date of his death, Haque’s decedent was a
resident of Columbus, Indiana, and was survived by his
wife—Haque—and a nineteen year-old son and a fourteen-year-old
daughter, all of whom, at the time the petition was filed,
resided in California. Most importantly, the petition stated
that Haque’s decedent “left an estate to be administered in this
County” and inserted the phrase “Cause of action wrongful death”
in the line following the category “Personal estate.”3 According
to Haque, the statute of limitations on any wrongful death claim
would expire at the end of the day on October 17, 1997. Haque
further stated that she sought appointment as personal
representative “so that she might file a wrongful death claim
that day in the []Circuit Court.”
On the same day that the petition was filed, October 16,
1997, the Probate Court, issued restricted letters of authority,
appointing Haque as “temporary personal representative” of her
decedent’s estate. However, the Probate Court included the
following restriction on the letters of authority:
The temporary personal representative has authority
ONLY to give notice to interested parties of a hearing
to determine whether Oakland County is the proper venue
in which to open this estate.
On October 17, 1997, according to intervening appellee William
Beaumont Hospital (“Beaumont”), Haque filed a wrongful death
action in the Circuit Court, Oakland County Circuit Court Docket
No. 97-000541-NH, with Beaumont as defendant. The parties give
this Court no further information with respect to this action and
its status is basically irrelevant to the issues here.
On October 20, 1997, the Probate Court issued an order
vacating appointment of fiduciary. This order stated that it
denied “the request for Judicial Review to accept venue in this
matter,” that it vacated the appointment of Haque as temporary
personal representative and that it vacated the “Acceptance of
Trust and Restricted Letters of Authority.”
On October 22, 1997, Haque filed a complaint for
superintending control in the Circuit Court. Haque averred that
she and her decedent were domiciled in Columbus, Indiana, on
April 25, 1995, but that between April 17, 1995 and April 25,
1995, her decedent was a patient in Beaumont. Haque alleged
that, as a result of treatment received at Beaumont, her decedent
died on April 25, 1995. She further alleged that at the time of
her decedent’s death, no probate proceedings were instituted in
Indiana because Haque had full rights of survivorship regarding
all of her decedent’s property. Haque alleged that her attempt
to institute probate proceedings in the Probate Court was in
conformity with the Michigan wrongful death act, MCL 600.2922;
MSA 27A.2922, and the Revised Probate Code, MCL 700.21; MSA
27.5021, but that, nevertheless, the Probate Court refused to
allow Haque to open an estate. Haque further alleged that the
effect of the Probate Court’s October 20, 1997 order was to deny
a non-resident plaintiff access to Michigan courts and to
improperly limit the jurisdiction of the Probate Court. On
October 29, 1997, the Circuit Court entered an order denying
superintending control. Haque appeals the Probate Court’s
October 20, 1997 order vacating appointment of fiduciary and the
Circuit Court’s October 29, 1997 order denying superintending
control.
II. Standard Of Review
A. Subject Matter Jurisdiction
Statutory interpretation and a determination of whether
subject-matter jurisdiction exists are questions of law reviewed
de novo on appeal. Lane v Kindercare Learning Centers, Inc, 231
Mich App 689, 695; 588 NW2d 715 (1998); Smith v Smith, 218 Mich
App 727, 729; 555 NW2d 271 (1996).
B. Superintending Control
“The grant or denial of a petition for superintending
control is within the sound discretion of the court.” In re
Goehring, 184 Mich App 360, 366; 457 NW2d 375 (1990). Absent an
abuse of discretion, we will not disturb the denial of such a
request. Id.
III. Subject Matter Jurisdiction
A. Statement Of The Issue
We consider the first issue on appeal to be whether a
wrongful death cause of action constitutes an “estate” sufficient
to invoke the jurisdiction of the probate court in the county in
which the cause of action accrued.
B. Relevant Statutory Provisions
The statute that defines probate court jurisdiction is MCL
700.21; MSA 27.5021:
The court has exclusive legal and equitable
jurisdiction of all of the following:
(a) Matters relating to the settlement of the estate
of a deceased person, whether testate or intestate, who
was at the time of death domiciled in the county or was
at the time of death domiciled out of state leaving an
estate within the county to be administered, including,
but not limited to, the following proceedings:
(i) The internal affairs of the estate.
(ii) Estate administration, settlement, and
distribution.
(iii) Declaration of rights involving estates,
devisees, heirs, and fiduciaries.
(iv) The construction of a will.
(v) The determination of heirs.
The critical phrase, of course, with respect to a person such as
Haque’s decedent who at the time of his death was domiciled out
of the state in Indiana, is the phrase “leaving an estate within
the county to be administered.” MCL 700.4(6); MSA 27.5004(6)
broadly defines an “estate” as:
the property of the decedent or other person whose
affairs are subject to this act as the property is
originally constituted and as it exists during
administration.
The Wrongful Death Act, MCL 600.2922; MSA 27A.2922 does not
directly tell us whether a wrongful death cause of action is part
of a decedent’s “estate,” as defined in MCL 700.4(6); MSA
27.5004(6). Rather, the Wrongful Death Act simply 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
which would have been liable, if death had not ensued,
shall be liable to an action for damages,
notwithstanding the death of the person injured . . . .
(2) Every action under this section shall be
brought by, and in the name of, the personal
representative of the estate of the deceased person.
We observe that a wrongful death action therefore has two
requirements: (a) a death or injuries causing death caused by
the wrongful act, neglect, or fault of another and (b) that
wrongful act, neglect, or fault was such that, if death had not
ensued, the injured party would have had a cause of action for
damages. We also observe that under the first requirement, there
are two possible scenarios: (1) death, presumably meaning
instantaneous death, or (2) injuries causing subsequent death.
Under the former scenario, the decedent obviously would not be
able to bring suit. Under the latter scenario, the injured party
could, but was not required to, bring suit before that party
died. If the injured party brought suit and the action was
pending at the time of death, under MCL 600.2921; MSA 27A.2921,
known as the Survival Act, the actions “may be amended to bring
it under the next section” (e.g. under the Wrongful Death Act,
MCL 600.2922; MSA 27A.2922). If the injured party did not bring
suit, that party’s “claim” survives death even though there was
no action pending. See Theisen v Knake, ___ Mich App ___, ___;
___ NW2d ___ (Docket No. 210870, issued 6/18/99):
In this case, the plain language of the statute [the
Survival Act] states that “all actions and claims
survive death.” It does not state that all pending
actions and claims survive death. To read the term
“pending” into the statute would amount to judicial
construction where none is warranted. [Emphasis in the
original.]4
In any event, the cause of action granted to the personal
representative of a decedent’s estate by the Wrongful Death Act
is a derivative one in that the personal representative is
required to show that the deceased could have maintained the
action if death had not ensued. Maiuri v Sinacola Constr Co, 382
Mich 391, 396; 170 NW2d 27 (1969).
We also observe that probate courts are courts of limited
jurisdiction and derive their jurisdiction and power from
statutory authority. In re Wirsing, 456 Mich 467, 472; 573 NW2d
51 (1998); Manning v Amerman, 229 Mich App 608, 611; 582 NW2d 539
(1998).
C. The Existence Of An Estate
(1) Introduction
In the present case, it is uncontested that Haque’s decedent
was domiciled in Indiana at the time of his death. Therefore,
unless Haque’s decedent had an “estate” in Oakland County at the
time of his death, there was nothing over which the Probate Court
could assume jurisdiction. Haque asserts that a wrongful death
cause of action constitutes “property of the decedent” such that
her decedent could be considered to have had an “estate” in
Oakland County which required administration. We agree.
(2) Findlay and Love
In Findlay v Chicago & Grand Trunk Railway Co, 106 Mich 700;
64 NW 732 (1895), the decedent was killed in an accident upon the
defendant railroad company and the administrator of her estate
sued to recover damages for the death, claiming that the death
was caused by the defendant railroad company. The Michigan
Supreme Court was called upon to consider whether, in
circumstances where the “whole estate” of the decedent consisted
of a right of action against the defendant railroad company, this
right of action constituted assets of the estate. The Wrongful
Death Act then in existence, was known as “Lord Campbell’s Act”
and was frequently referred to as the “death act.” Section 8313
of Howell’s Annotated Statutes, adopted by the Legislature in
1848, stated:
[W]henever the death of a person shall be caused
by wrongful act, neglect or default, and the act,
neglect or default is such as would (if death had not
ensued) have entitled the party injured to maintain an
action, and recover damages, in respect thereof, then
and in every such case, the person who, or the
corporation which would have been liable, if death had
not ensued, shall be liable to an action for damages,
notwithstanding the death of the person injured . . .
.[5]
Section 8314 of Howell’s Annotated Statutes stated:
Every such action shall be brought by and in the
names of the personal representatives of such deceased
person, and the amount recovered in every such action
shall be distributed to the persons and in the
proportions provided by law in relation to the
distribution of personal property left by persons dying
intestate.
Section 5848 of Howell’s Annotated Statutes stated:
If such deceased person, at the time of his death,
reside in any other State or country, leaving estate to
be administered in this State, administration thereof
shall be granted by the probate court of any county in
which there shall be estate to be administered.
The Court, after reciting the three sections, then commented:
It is contended by defendant that the right of
action for causing the death of the intestate does not
constitute assets of the estate. We are of the opinion
that the sections of the statute above quoted should be
construed together. Section 8314 clearly contemplates
that an administrator shall institute action, and
distribute the funds received, if any. It could not
have been contemplated by the legislature that the
right to bring this action could be made to depend upon
the question of whether the deceased left other
property. We think it was clearly the purpose to treat
this right of action as assets for distribution, and we
hold, in accordance with the weight of authority, that
it constitutes such assets, within the meaning of
section 5848. [Findlay, supra at 701-702; emphasis
supplied; citations omitted.]
In Love v Detroit, Jackson & Chicago Railroad Co, 170 Mich
1; 135 NW 963 (1912), the Michigan Supreme Court considered the
circumstances of an accident in which a child was severely
injured while attempting to cross a railway track. The child
survived for about eight hours following his injuries and then
died. Id. at 3. After the child’s death, the administrator for
the child brought suit against the defendant railroad company
under the then-existing version of the Survival Act. Id. at 3-4.
The Court observed that the Survival Act applies to rights or
causes of action as well as to actions and then stated:
A right of action is as much property as is a
corporeal possession, and, under the survival act,
vests at once in the injured person upon the inflicting
of the negligent injury, and, upon his subsequent
death, becomes an asset of his estate to be collected
and distributed in accordance with the administration
statutes. [Love, id. at 4-5; citations omitted.]
Although the distribution scheme of the current Wrongful Death
Act differs from that applicable at the time of the Love and
Findlay decisions, those decisions have not been overruled. The
Probate Court in its brief, however, notes that Love was decided
under the Survival Act, not the Wrongful Death Act. Unlike the
Probate Court, however, we do not view this distinction as being
fundamental. In Maiuri, supra at 394-395, the Supreme Court
noted:
The present wrongful death act is an amalgamation
of the remedies previously existing under the wrongful
death and survival acts. It came about due to
difficulties which had arisen under the previous acts
as to the remedy if death resulted but was not known to
have been instantaneous. Where the injuries result in
death, survival and wrongful death actions now, by
direction of the legislature, are to be brought under
the wrongful death act. As a condition to a successful
action under the wrongful death act, it must be shown
that the decedent, if death had not ensued, could have
maintained an action and recovered damages for his
injuries. (RJA § 2922[1]). This is true even though
the wrongful death act creates a new cause of action
permitting recovery for the benefit of certain persons
who had sustained pecuniary injury as a result of the
decedent’s death. The language of the statute
requiring that the decedent must have been able to
maintain the action, “if death had not ensued,” has
remained in the act throughout its legislative history.
[Citations omitted.]6
Here, presumably, Haque’s decedent did not die instantaneously.
Under the situation that existed at the time Love was decided,
that was the only circumstance under which a suit under the
Wrongful Death Act, as it then existed, could have been
instituted. Nor did Haque’s decedent institute suit while he was
still alive. Under the current situation, such a scenario was
one of the two circumstances under which an action could be
instituted under the Survival Act as it is now “amalgamated” with
the Wrongful Death Act. Rather, Haque, as her decedent’s
personal representative, instituted suit after her decedent’s
death. This scenario is the other circumstance under which an
action can be instituted under the Survival Act as it is now
“amalgamated” with the Wrongful Death Act. In simple terms,
Haque has exercised her option under the Survival Act, MCL
600.2921; MSA 27A.2921, to bring an action under the Wrongful
Death Act, MCL 600.2922; MSA 27A.2922, for injuries which result
in death.7 This is not materially different from the situation
in Love where the plaintiff proceeded under the unamalgamated
Survival Act.8
(3) Additional Statutory Interpretations
Further, statutory interpretation of the probate court
jurisdictional statute, MCL 700.21; MSA 27.5021, and the Wrongful
Death Act, MCL 600.2922; MSA 27A.2922, support this conclusion.
First, a decedent’s cause of action under the Wrongful Death Act
accrues at the date of the wrongful act and an accrued right of
action has long been considered a vested property right. Hawkins
v Regional Medical Laboratories, PC, 415 Mich 420, 436; 329 NW2d
729 (1982) (the mere fact that the legislative scheme requires
that suits for tortious conduct resulting death be filtered
through the Wrongful Death Act does not change the character of
such actions except to expand the elements of damage available
and a plaintiff has a “fully vested cause of action,” if at all,
at the time of the alleged wrongful act); Grubaugh v City of St.
Johns, 384 Mich 165, 170; 180 NW2d 778 (1970) (T.M. Kavanagh, J.)
(“It is axiomatic that the constitutional provision of due
process extends to protect that ‘property’ construed to be a
vested right and that generally an accrued right of action is a
vested property right which may not be arbitrarily impinged.”)
In essence, a decedent’s cause of action under the Wrongful Death
Act—and we again note that the cause of action granted to the
personal representative of a decedent’s estate by the Wrongful
Death Act is a derivative one—is a chose in action. See In re
Thonton, 192 Mich App 709, 712-714; 481 NW2d 828 (1992) (while
the proceeds of a medical malpractice wrongful death suit did not
exist at the time of the decedent’s death, the underlying “chose
in action” did so that the proceeds could be distributed under
the terms of the decedent’s will); Comm’r of Ins v Arcilio, 221
Mich App 54, 64; 561 NW2d 412 (1997) (a tort claim is a “chose in
action” that is an asset).
Second, the Wrongful Death Act specifically provides that
wrongful death proceeds may include recovery for expenses for
which a decedent’s estate is liable, including medical, hospital,
funeral and burial expenses. MCL 600.2922(6); MSA 27A.2922(6).
Further, the estate is eligible to receive damages for a
decedent’s conscious pain and suffering prior to death, thus
increasing the value of the estate. MCL 600.2922(6); MSA
27A.2922(6).
(4) Conclusion
In summary, therefore, we conclude that Haque properly
sought to invoke the Probate Court’s exclusive jurisdiction over
the non-resident decedent’s estate which consisted solely of a
wrongful death cause of action that had accrued to Haque’s
decedent in Oakland County. We hold that a wrongful death cause
of action constitutes an estate sufficient to invoke the
jurisdiction of the probate court in the county in which the
cause of action accrued. Accordingly, the Probate Court erred in
denying jurisdiction to open and administer the estate.
IV. Superintending Control
Haque contends that the Circuit Court erred in denying her
request for superintending control over the Probate Court. We
disagree.
MCR 5.801(B) governs which probate court orders are
appealable of right to this Court. In the present case, the
pertinent provision is MCR 5.801(B)(3)(a), which provides that an
order appointing, removing or denying appointment of a personal
representative is appealable of right to this Court. The
superintending control power of superior courts is governed by
MCR 3.302. In particular, MCR 3.302(D)(2) prescribes and limits
the jurisdiction to issue superintending control orders and
provides that when an appeal is available, a complaint for
superintending control is inappropriate. Therefore, the Circuit
Court properly denied Haque’s request for superintending control.
Affirmed in part, reversed in part and remanded for further
proceedings. We do not retain jurisdiction.
/s/ William C. Whitbeck
/s/ Richard A. Bandstra
/s/ Michael J. Talbot
_______________________________
1 The petition checked the box delineated as “Independent” and
later stated that Haque was seeking “independent administration.”
There are three basic types of probate administration in
Michigan: “supervised,” “independent,” and “small estate.” See
MCL 700.10(5); MSA 27.5010(5), MCL 700.7(2); MSA 27.5007(2), and
MCL 700.101; MSA 27.5101.
2 Ayesha Haque’s decedent was her husband, Sazzadul Haque.
3 The petition calls for an estimated dollar value of two types
of property, “Real estate” and “Personal estate.”
4 We understand that Theisen was not a wrongful death case and
that the plaintiff conceded that she was not alleging that the
defendants’ conduct caused injuries that resulted in death.
Rather, the plaintiff alleged that the defendants’ conduct caused
economic injuries, caused pain and suffering and failed to
prolong the decedent’s life. Thus, the plaintiff’s claim was a
medical malpractice action brought in her own name as personal
representative.
5 See Lincoln v Detroit & Mackinac Railway Co, 179 Mich 189, 198-
199; 146 NW 405 (1914).
6 In footnote 3, the Maiuri Court cited to Jorgensen v Grand
Rapids & Indiana Ry Co, 189 Mich 537, 541; 155 NW 535 (1915).
There, the Supreme Court summarized the then existing distinction
between the Survival Act and the Wrongful Death Act:
Under the law and practice of this State it has
been held that the statute commonly called the “death
act” (3 Comp. Laws, § 10427; 5 How. Stat. [2d Ed.] §
13702) is applicable only to cases of instantaneous
death; that where death is not instantaneous the action
should be brought under the so-called “survival act” (3
Comp. Laws, § 10117, 5 How. Stat. [2d Ed.] § 12761);
and that both rights of action, for the same injury,
cannot exist at the same time. And while the “death
act” is recognized as creating a new right of action,
unknown to the common law, and authorizing damages with
reference strictly to the pecuniary injury, suffered by
certain beneficiaries, the “survival act” is treated as
effecting a continuance of the right of action that had
vested in the decedent, with such damages as he could
have recovered, including the present worth of his
probable future earnings had he lived. [Citations
omitted.]
7 We note that we are not implying, nor should the parties infer,
any conclusion whatsoever as to whether Haque’s decedent suffered
“injuries” at the hands of Beaumont, whether such injuries caused
her decedent’s death or whether these injuries were the result of
the wrongful act, neglect, or fault of another.
8 Our conclusion in this regard is supported by the opinion in
Hawkins v Regional Medical Laboratories, PC, 415 Mich 420; 329
NW2d 729 (1982). There the Court stated:
It is clear . . . that a distinction was drawn as to
whether death from a wrongful act was instantaneous, in
which case the action lay under the “wrongful death”
statute, or whether there was a period of survival,
thus requiring that the action be maintained under the
“survival act.” This distinction was crucial since the
claims were mutually exclusive and the measure of
damages was substantially different.
The strict application of this temporal
distinction not only spawned numerous suits over what
“instantaneous death” meant, but also created pleading
problems where the “time of death” issue was close.
Confusion in the application of these two statutes
was ended when the Legislature, by the enactment of a
new wrongful death act, 1939 PA 297, combined the two
acts, requiring that all actions for injuries resulting
in death be brought thereunder. 1939 PA 297 actually
took the form of an amendment to the existing wrongful
death act and provided for the repeal of any
inconsistent provisions of the “survival act”. . . .
After some initial difficulty in construing this
new statute, it was made unmistakably clear by this
Court . . . that the survival act was not repealed but
was incorporated into the new death act to form a
single ground of recovery in cases where tortious
conduct caused death. [Id. at 430-432; citations
omitted.]
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