
    DENNEY v KENT COUNTY ROAD COMMISSION
    Docket No. 328135.
    Submitted October 4, 2016, at Grand Rapids.
    Decided November 15, 2016, at 9:05 a.m.
    Leave to appeal denied 500 Mich 997.
    Plaintiff, Kimberly Denney, as personal representative of the estate of her husband, Matthew M. Denney, brought an action in the Kent Circuit Court against defendant, the Kent County Road Commission, for Denney’s wrongful death. Denney’s death resulted from a motorcycle accident caused when his motorcycle hit two potholes on a road under defendant’s jurisdiction. Defendant had a duty under MCL 691.1402 to maintain the road in reasonable repair so that the road was reasonably safe and convenient for public travel. Plaintiff’s action under the wrongful-death statute, MCL 600.2922, sought economic damages for earnings Denney lost as a result of his death. Defendant moved for partial summary disposition under MCR 2.116(C)(7), claiming that it was immune from liability under the governmental tort liability act (GTLA), MCL 691.1401 et seq., for damages beyond those arising from Denney’s bodily injury. Plaintiff argued that the highway exception to governmental immunity, MCL 691.1402(1), authorized her action to recover Denney’s lost wages. The court, George S. Buth, J., disagreed with plaintiff and granted partial summary disposition in defendant’s favor. Plaintiff appealed by leave granted.
    The Court of Appeals held,'.
    
    1. Plaintiff’s recovery of damages under the wrongful-death statute was limited by the damages available to Denney under the highway exception to the GTLA had he not died from the injuries he sustained in the motorcycle accident. Claims under the wrongful-death statute are derivative claims. The wrongful-death statute authorizes a representative of a decedent’s estate to recover damages for claims the decedent would have had if the decedent had survived. In this case, plaintiff, as the representative of Denney’s estate, was entitled to recover damages to which Denney would have been entitled under the highway exception to the GTLA if his death had not resulted from the wrongful act, neglect, or fault of defendant. Therefore, the resolution of this case rested on which damages recoverable under the wrongful-death statute were also recoverable under the highway exception to the GTLA. MCL 691.1402(1) of the GTLA limits an injured person’s recovery under the highway exception to damages directly arising and naturally flowing from his or her bodily injury. Claims related to Denney's bodily injury that he could have raised had he not died are the claims that survived his death and on which plaintiffs wrongful-death action was based. Denney would have had a claim for lost earnings if he had not died because an inability to work and consequent loss of wages naturally flow from a person’s bodily injury. Defendant attempted to characterize the damages sought by plaintiff as damages related to lost financial support. A claim for lost financial support is a beneficiary’s claim, not a decedent’s claim. Therefore, a claim for lost financial support would not have been available to Denney under the highway exception, and that claim would not have been available to plaintiff under the wrongful-death statute. But a claim for lost financial support is distinct from a claim for lost earnings. Because Denney would have been entitled to recover damages for his lost earnings and because those damages naturally flowed from the bodily injury he sustained in the accident, plaintiff was entitled to recover damages under the wrongful-death statute for Denney’s lost earnings.
    2. The direct distribution of damages to the beneficiaries of a decedent’s estate does not prevent or otherwise affect a plaintiff’s claim under the wrongful-death statute for the decedent’s lost earnings. Lost earnings constitute damages naturally flowing from the bodily injury sustained by the decedent, and the decedent, had he or she survived the bodily injuries, would have had a claim for those lost earnings. The fact that the damages might be distributed directly to a beneficiary does not remove those damages from the purview of the wrongful-death act. That is, distribution of damages directly to a beneficiary does not change the nature of a claim.
    Reversed and remanded.
    
      Gruel Mills Nims & Pylman PLLC (by Thomas R. Behm and Scott R. Melton) for plaintiff.
    
      Henn Lesperance, PLC (by William L. Henn), for defendant.
    Amicus Curiae:
    
      Johnson Law, PLC (by Christopher P. Desmond), for the Negligence Law Section of the State Bar of Michigan.
    
      Before: SHAPIRO, P.J., and HOEKSTRA and SERVITTO, JJ.
   PER CURIAM.

Plaintiff appeals by leave granted the trial court’s April 29, 2015 order granting defendant’s motion for partial summary disposition under MCR 2.116(C)(7). We reverse and remand to the trial court for further proceedings consistent with this opinion.

Plaintiff alleged that on the morning of May 18, 2014, Matthew Denney (the decedent) was riding a motorcycle on Peach Ridge Road NW in Kent County. As he crested a hill, his motorcycle struck two potholes in the road, causing him to lose control of the motorcycle. He sustained fatal injuries. For purposes of this appeal only, defendant does not contest these allegations. There is also no dispute that defendant is a governmental agency with jurisdiction and control over the portion of the road on which the accident occurred and is therefore required to maintain that road in reasonable repair so that it is reasonably safe and convenient for public travel. See MCL 691.1401 and MCL 691.1402(1). Plaintiff, as personal representative of the decedent’s estate, sued defendant under the wrongful-death statute, MCL 600.2922. Defendant moved for partial summary disposition, alleging that under the governmental tort liability act (GTLA), MCL 691.1401 et seq., it was immune from liability for damages beyond bodily injuries suffered by the decedent, including immunity for any loss of financial support (such as the decedent’s lost earnings). Plaintiff argued that damages for lost wages and loss of earning capacity fall within the highway exception to the GTLA as provided in MCL 691.1402(1). The trial court disagreed and granted defendant’s motion. We granted leave to appeal that decision.

“We review de novo a trial court’s grant or denial of summary disposition under MCR 2.116(C)(7).” Tarlea v Crabtree, 263 Mich App 80, 87; 687 NW2d 333 (2004). This Court also reviews de novo issues of statutory interpretation. PNC Nat’l Bank Ass’n v Dep’t of Treasury, 285 Mich App 504, 505; 778 NW2d 282 (2009). The primary goal of statutory construction is to determine the intent of the Legislature by reasonably construing the purpose and goal of the statute. Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511, 515; 573 NW2d 611 (1998). To determine the Legislature’s intent, this Court first looks at the specific language of the statute. Gauntlett v Auto-Owners Ins Co, 242 Mich App 172, 177; 617 NW2d 735 (2000).

“[T]he wrongful death act provides the exclusive remedy under which a plaintiff may seek damages for a wrongfully caused death.” Jenkins v Patel, 471 Mich 158, 164; 684 NW2d 346 (2004). The wrongful-death statute states, in relevant part, as follows:

Whenever the death of a person, injuries resulting in death, or death as described in section 2922a 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 injured or death as described in section 2922a, and although the death was caused under circumstances that constitute a felony. [MCL 600.2922(1).]

MCL 600.2922(6) sets forth the damages available in wrongful-death actions. Wesche v Mecosta Co Rd Comm, 480 Mich 75, 90; 746 NW2d 847 (2008). That provision states, in relevant part, as follows:

In every action under this section, the court or jury may award damages as the court or jury shall consider fair and equitable, under all the circumstances including reasonable medical, hospital, funeral, and burial expenses for which the estate is liable; reasonable compensation for the pain and suffering, while conscious, undergone by the deceased during the period intervening between the time of the injury and death; and damages for the loss of financial support and the loss of the society and companionship of the deceased. [MCL 600.2922(6).]

The word “including” in MCL 600.2922(6) “indicates an intent by the Legislature to permit the award of any type of damages, economic and noneconomic, deemed justified by the facts of the particular case.” Thorn v Mercy Mem Hosp Corp, 281 Mich App 644, 651; 761 NW2d 414 (2008). Under the wrongful-death statute, “the intervention of death neither limits nor precludes the type of damages that could have been recovered by the person had the person survived the injury.” Id. at 660. Relevant to this case, our Supreme Court has stated that economic damages include “damages incurred due to the loss of the ability to work and earn money. . . .” Hannay v Dep’t of Transp, 497 Mich 45, 67; 860 NW2d 67 (2014). However, “[bjecause an underlying claim ‘survives by law’ and must be prosecuted under the wrongful-death act, . . . any statutory or common-law limitations on the underlying claim apply to a wrongful-death action.” Wesche, 480 Mich at 89.

As previously stated, the damages available under the wrongful-death statute, MCL 600.2922(6), include “any type of damages, economic and noneconomic, deemed justified by the facts of the particular case.” Thorn, 281 Mich App at 651. And economic damages include “damages incurred due to the loss of the ability to work and earn money . . . .” Hannay, 497 Mich at 67. Therefore, damages for lost earnings are allowed under the wrongful-death statute. However, as a governmental agency, defendant is immune from tort liability “when. . . engaged in the exercise or discharge of a governmental function,” unless an exception under the GTLA applies. MCL 691.1407(1). The GTLA broadly shields government agencies from tort liability and grants immunity to those agencies. The statutory exceptions are narrowly construed. Moraccini v Sterling Hts, 296 Mich App 387, 391-392; 822 NW2d 799 (2012).

Plaintiff argues that the highway exception to governmental immunity permits her claim for lost earnings. It states in relevant part that “[a] person who sustains bodily injury or damage to his or her property by reason of failure of a governmental agency to keep a highway under its jurisdiction in reasonable repair and in a condition reasonably safe and fit for travel may recover the damages suffered by him or her from the governmental agency.” MCL 691.1402(1). Our Supreme Court has defined “bodily injury” as “a physical or corporeal injury to the body.” Wesche, 480 Mich at 85. Although the Wesche Court was construing the motor-vehicle exception to the GTLA rather than the highway exception when defining “bodily injury,” both exceptions are part of the GTLA, and “[ijdentical terms in different provisions of the same act should be construed identically . . . .” Cadle Co v Kentwood, 285 Mich App 240, 249; 776 NW2d 145 (2009). Therefore, the phrase “bodily injury” in the highway exception also means “a physical or corporeal injury to the body.” Wesche, 480 Mich at 85. MCL 691.1402(1) does not define the term “damage,” but “when the Legislature uses a word or phrase that has acquired a unique meaning at common law, it is interpreted to have the same meaning when used in a statute dealing with the same subject.” Lewis v LeGrow, 258 Mich App 175, 184; 670 NW2d 675 (2003).

In Hannay, 497 Mich at 50-51, our Supreme Court was called on to determine whether the phrase “liable for bodily injury” in the motor-vehicle exception to governmental immunity (MCL 691.1405) allowed a plaintiff who was injured in a motor vehicle accident to recover economic damages, such as work-loss damages, and noneconomic damages, such as pain and suffering. In making its determination, the Court stated that “ ‘bodily injury is simply the category of harm (i.e., the type of injury) for which the government waives immunity under [the motor-vehicle exception] and, thus, for which damages that naturally flow are compensable.” Id. at 64.

Therefore, the legal responsibility that arises from “bodily injury” is responsibility for tort damages that flow from that injury. This conclusion is supported by the fact that the GTLA generally grants immunity from “tort liability,” and to the extent that this immunity is waived, the resulting liability, logically, is liability for tort damages. [Id. at 64-65.]

The Hannay Court continued,

[T]ort damages generally include damages for all the legal and natural consequences of the injury (i.e., the damages that naturally flow from the injury), which may include damages for loss of the ability to work and earn money, as well as pain and suffering and mental and emotional distress damages. [Id. at 65.]

The Court therefore held that a plaintiff may bring a third-party tort action for economic damages, such as work-loss damages, and for noneconomic damages, such as damages for pain and suffering or emotional distress, against a governmental entity if the requirements of the no-fault act have been met. Id. at 51. See MCL 500.3135. The Hannay Court also recognized that while damages that naturally flowed from the injury were compensable, the person seeking such damages must have had a bodily injury. Hannay, 497 Mich at 71-72. Notably, the Hannay Court cited the case of Roberts v Detroit, 102 Mich 64; 60 NW 450 (1894), for this proposition, stating that “[t]he issue was whether the highway exception applied” to a noninjured plaintiffs loss of consortium claim. Hannay, 497 Mich at 71. Discussing Roberts, Hannay continued:

This Court stated, “[s]o far as [the highway exception] is concerned, it limits the liability to cases of bodily injury,” and concluded that:
The plaintiffs case [for loss of consortium] does not fall within [the highway exception] (1) because he has no right to recover for the bodily injury—i.e., pain and suffering, etc—of another; (2) because the statute in terms limits the recovery to the person so injured or disabled. [Hannay, 497 Mich at 71, quoting Roberts, 102 Mich at 67 (first, second, and fourth alterations in original).]

“ ‘[Bjodily injury’ in the motor vehicle exception is not a threshold requirement that opens all doors of potential liability for tort damages; rather, it is a category of injury for which items of tort damages that naturally flow are available, as confined by the limitations of the no-fault act.” Hannay, 497 Mich at 75.

What is taken from Hannay is that (1) the tort damages recoverable for bodily injury under the GTLA’s motor-vehicle exception—and, by extension, its highway exception—are only those damages that the injured person suffered and (2) the types of tort damages are confined to the limitations of the statute under which the action is brought—the wrongful-death act in this case. Put another way, under MCL 691.1402(1), a person who sustains a bodily injury as a result of a governmental agency’s failure to properly maintain a highway may recover from the governmental agency the damages the person suffered as limited by the wrongful-death act. As our Supreme Court stated, “[T]he wrongful-death act is essentially a ‘filter’ through which the underlying claim may proceed.” Wesche, 480 Mich at 88. “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.” Id. at 90 (quotation marks and citation omitted). “ ‘[T]he cause of action of a proper plaintiff under the wrongful death act is a derivative one in that the personal representative of the deceased stands in his shoes and is required to show that the deceased could have maintained the action if death had not ensued....’” Id., quoting Maiuri v Sinacola Constr Co, 382 Mich 391, 396; 170 NW2d 27 (1969).

When the decedent lost control of his motorcycle on May 18, 2014, he clearly suffered “a physical or corporeal injury to [his] body”—in other words, he suffered a bodily injury. Wesche, 480 Mich at 84-85. Therefore, if the decedent had not died, he would have been able to recover under MCL 691.1402(1) damages from defendant for earnings lost as a result of the bodily injury. See MCL 691.1402(1). And, despite the fact that the decedent died, his claim against defendant for lost earnings survived. MCL 600.2922(1). Plaintiff, a representative of the decedent’s estate, brought this claim under the wrongful-death statute. Under the highway exception, MCL 691.1402(1), the decedent could have maintained an action against defendant for lost earnings resulting from the bodily injury he sustained on May 18, 2014. Because plaintiff was able to bring this derivative claim under the wrongful-death statute, MCL 600.2922(2), the trial court improperly granted defendant’s motion for partial summary disposition with regard to plaintiffs claim for damages for the decedent’s lost earnings.

. Defendant argues that plaintiffs claim for damages for lost earnings does not fall under the highway exception to the GTLA because MCL 691.1402(1) allows for damages only for “[a] person who sustains bodily injury” and plaintiffs claim for damages constituted a claim on behalf of the beneficiaries, not the decedent. But, as discussed, this claim was the decedent’s claim for lost earnings, which survived his death and was brought under the wrongful-death statute by the personal representative who stood in his shoes. The claim is permitted under MCL 691.1402(1). See MCL 600.2922(1).

Defendant attempts to characterize plaintiffs claim as one for lost financial support and argues that because a claim for lost financial support can be brought under the wrongful-death statute by beneficiaries of the estate, this claim is not one for damages suffered by the decedent. Rather, defendant contends that plaintiffs claim is for damages suffered by the estate’s beneficiaries and is therefore not allowed under MCL 691.1402(1). Defendant is correct insofar as it argues that damages for lost financial support under the wrongful-death statute are not damages suffered by “[a] person who sustains bodily injury” and, therefore, such damages would not be allowed under MCL 691.1402(1). See, e.g., Setterington v Pontiac Gen Hosp, 223 Mich App 594, 606-607; 568 NW2d 93 (1997). However, a claim for lost financial support under the wrongful-death statute is not the same as a claim for lost earnings. Specifically, lost earnings are damages that the decedent could have sought on his own behalf had he lived, whereas damages for lost financial support would be sought by one who depended on the decedent for financial support. See, e.g., id. Because the damages are distinct, the fact that the wrongful-death statute allows for recovery of lost financial support does not change the character of plaintiffs claim for damages for the decedent’s lost earnings.

Finally, defendant argues that MCL 600.2922(6)(d) indicates that plaintiffs claim was not one for damages suffered by the decedent because MCL 600.2922(6)(d) provides that damages are distributed directly to the beneficiaries rather than to the estate. We fail to see how the distribution of damages affects our analysis— the decedent’s lost earnings resulted from the bodily injury he sustained, and therefore, damages for the decedent’s lost earnings were allowed under MCL 691.1402(1).

We reverse the trial court’s order granting defendant’s motion for partial summary disposition and remand the case for proceedings in accordance with this opinion. We do not retain jurisdiction.

SHAPIRO, P.J., and HOEKSTRA and SERVITTO, JJ., concurred. 
      
       We note that the wrongful-death statute is also often referred to as the “wrongful-death act.”
     
      
       In the trial court, the parties stipulated the scope of the claim for conscious pain and suffering, and plaintiff withdrew all claims for loss of society and companionship. Accordingly, there are no issues related to noneconomic damages before us.
     