UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

KATHLEEN OWEN, as Personal 

Representative ofthe ESTATE OF 

ZACHARY MURPHY, deceased 

Plaintiff, Case No. 14-13923 

JUN 2 2 2016 

CLERK'S OFFICE 

FLINT 

v. 

HON. TERRENCE G. BERG 

HON. STEPHANIE D. DAVIS 

TOWNSHIP OF REDFORD, et al., 

Defendants. 

ORDER GRANTING IN PART AND RESERVING IN PART PLAINTIFF'S 

MOTION TO APPROVE DISTRIBUTION OF 

REMAINING WRONGFUL DEATH SETTLEMENT PROCEEDS 

AND AWARDING ATTORNEY FEES AND COSTS (DKT. 36) 

In this federal and state law action filed on October 10, 2014, Plaintiff 

Kathleen Owen, the personal representative of her son Zachary Murphy's estate, 

alleges that Defendants were grossly negligent and deliberately indifferent to her 

son's medical needs while he was incarcerated, resulting in his death on August 1, 

2013. (Dkt. 1, ,-r,-r 11, 38-46.) The parties settled these claims and Plaintiff filed a 

motion to approve the settlement pursuant to the Michigan Wrongful Death Act, or 

M.C.L. § 600.2922(5). (Dkt. 23.) The Court held a hearing on that motion on April 

30, 2016, and, after considering the evidence presented and determining in light of 

that evidence that the settlement was in the best interests of the estate of the 

decedent as well as the wrongful death claimants, the settlement was approved. 

(Dkt. 32.) This Court's Order approving the settlement reserved the remainder of 

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the settlement proceeds, after certain attorney fees were set aside, for distribution 

to the wrongful death claimants. (ld. at 3.) 

Before the Court is Plaintiffs motion for approval of the distribution of the 

remaining settlement proceeds and for payment of certain attorney fees and costs.1 

(Dkt. 36.) In short, Plaintiff proposes awarding 42.5% of the net proceeds to each of 

the decedent's two minor children with the remaining 15% to be paid to Plaintiff, 

the decedent's mother. (/d.) On June 10, 2016, the decedent's brother, Ian Murphy, 

and father, Daniel Murphy, filed notices of claim seeking a share of the net 

settlement proceeds. (See dkts. 45, 4 7 .) The Court held a status conference in this 

matter on June 15, 2016 during which the parties clarified that there is no objection 

by any party to the children's distribution- the decedent's mother, father, and 

brother are disputing the distribution of the remaining 15% of the net settlement 

proceeds only. 

A hearing was held on Plaintiffs motion on June 17, 2016.2 (See dkt. 41.) The 

purpose of the hearing was to document the evidence in support of the distribution 

to the two minor children of the decedent only. Having considered the proposed 

1 There is an ongoing dispute in this matter over how the one-third attorney fee should be allocated 

between the two firms that have represented Plaintiff at different points in this litigation. (See dkt. 

26.) The one-third attorney fee has been set aside from the net settlement proceeds, and is being held 

in trust by the Rasor Law Firm pending further order of this Court. (Dkt. 32, p. 2.) Plaintiffs motion 

to award attorney fees (dkt. 26) was referred to the Honorable Stephanie Dawkins Davis on May 10, 

2016 for a hearing and report and recommendation (see dkt. 35). As of the date of this Order, a 

motion hearing is scheduled for September 9, 2016 before Magistrate Judge Davis. (Dkt. 43.) 

2 Present at the hearing was Attorney Rebecca H. Filiatraut on behalf of the estate and Kathleen 

Owen in her capacity as its executor, Attorney Richard Ford on behalf of Amy Murphy (who is the 

former spouse of the decedent, and mother of the decedent's two minor children) and the decedent's 

two minor children, Attorney Scott Kappler on behalf of Kathleen Owen in her individual capacity, 

Attorney Robert Mouradian on behalf of Daniel and Ian Murphy, and Attorney Bruce Rice as 

Guardian ad Litem for Ashlyn Murphy, who is a half-sister of the decedent. At the hearing, the 

Court heard testimony from Amy Murphy. 

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distribution to the decedent's two minor children, having heard evidence in support 

of this proposed distribution, and having considered the relationships between the 

children and the deceased, the Court will GRANT IN PART and RESERVE IN 

PART the motion. 

In this Order, the Court will APPROVE the proposed distribution of the net 

settlement proceeds to Adriana Murphy and Zachary William Murphy, II, only. The 

Court will also approve the payment of certain attorney fees. The approval and 

allocation of the remaining 15% distribution among Kathleen Owen, Daniel 

Murphy, and Ian Murphy will be addressed at a later hearing to be noticed by the 

Court. 

I. THE MICHIGAN WRONGFUL DEATH ACT 

Plaintiffs motion to approve the distribution of the settlement proceeds was 

filed on May 12, 2016. (Dkt. 36.) Plaintiffs motion to approve the distribution of the 

net settlement proceeds was filed pursuant to the Michigan Wrongful Death Act, 

M.C.L. § 600.2922 et seq. (Dkt. 36, ~~ 4-8, 12.) The Michigan Wrongful Death Act 

requires that this Court hold a hearing and approve or reject the settlement in this 

case. M.C.L. § 600.2922(5). This Court did so on March 30, 2016. (Dkt. 24.) 

This Court has jurisdiction to conduct a hearing and to approve or reject the 

proposed settlement as well as the proposed distribution of the settlement proceeds. 

See Robinson v. Fiedler, 91 F.3d 144, at *3 (6th Cir.1996) (Table Case) (holding that 

district court had jurisdiction to approve or reject a wrongful death settlement 

agreement and to distribute proceeds under M.C.L. § 600.2922(5)-(9) and reviewing 

the district court's approval under the clearly erroneous standard); see also Estate of 

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Fahner ex rel. Fahner v. County of Wayne, No. 08-CV-14344, 2014 WL 2511666, at 

*1 (E.D. Mich. June 4, 2014) (approving settlement and disbursement per the 

parties' stipulated order of dismissal and pursuant to M.C.L. § 600.2922). 

Unless waived, notice of the hearing on the settlement and distribution shall 

be served upon all persons entitled to claim damages, as those persons are defined 

in the statute. M.C.L. § 600.2922(6)(b). At the distribution hearing on June 17, 

2016, it was established that all individuals entitled to claim damages in this 

matter under the provisions ofM.C.L. § 600.2922(3) had received notice of the 

motion to be brought before this Court to approve the proposed distribution of 

proceeds. 

Also on May 12, 2016, Plaintiff filed an ex parte motion to appoint a 

Guardian ad Litem pursuant to M.C.L. § 600.2922(6)(c)3 for one of the wrongful 

death claimants who is a minor and was without a fiduciary. (Dkt. 38.) The Court 

approved the appointment of Attorney Bruce A. Rice as Guardian ad Litem ("GAL") 

to wrongful death claimant Ashlyn Murphy4 on May 17, 2016. (Dkt. 40.) Attorney 

Rice filed his report with the Court on behalf of Ashlyn Murphy on June 14, 2016 

indicating that Ashlyn Murphy would not seek a distribution payment and that the 

parties agree that the attorney fees, GAL fees, and distributions to the decedent's 

3 This section states in relevant part that if "any interested person is a minor ... for whom a fiduciary 

is not appointed, a fiduciary or guardian ad litem shall be first appointed ... " M.C.L. § 600.2922(6)(c). 

4 Ashlyn Murphy is the decedent's half-sister and a minor. (Dkt. 36, ~ 8.) The decedent's two minor 

children, Adriana Murphy and Zachary William Murphy, II, are also wrongful death claimants but 

have a duly-appointed Conservator and thus do not require a Guardian ad Litem. (ld. at ~~ 8-9.) The 

Letters of Conservatorship appointing their mother, Amy Murphy, as Conservator were available at 

the distribution for the Court's review, and were reviewed by the Court. 

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two minor children should be paid. As Attorney Rice has fulfilled his duties as GAL, 

he will be released by the Court. 

II. DISTRIBUTION OF NET SETTLEMENT PROCEEDS 

In her motion, Plaintiff identifies nine individuals as potential wrongful 

death claimants under M.C.L. § 600.2922(3). (Dkt. 36, ~ 8.) Under the proposed 

distribution, the decedent's mother and executor of the estate, Plaintiff Kathleen 

Owen, will receive 15% of the net proceeds, and the decedent's two minor children, 

Adriana Murphy and Zachary William Murphy, II, will each receive 42.5% of said 

proceeds. (Id. at~ 12.) The remaining six claimants, including the decedent's father, 

brother, three half-sisters, and half-brother, do not receive any of the net proceeds 

under the proposed plan of distribution. (Jd.) Daniel and Ian Murphy, the decedent's 

father and brother respectively, filed notices of claim prior to the June 17, 2016 

hearing and are contesting the 15% distribution to the decedent's mother. (Dkts. 45, 

47.) 

The parties clarified at a status conference on June 15, 2016 and at the 

distribution hearing that the distributions to the decedent's two minor children are 

not in dispute. The parties, however, requested additional time to conduct 

settlement discussions regarding the remaining 15% of the net proceeds. 

Accordingly, the June 17, 2016 motion hearing was held with respect to the 

children's distribution payment only. 

Michigan's wrongful death statute concerns both wrongful death actions and 

survivors. Flores v. Toadvine, No. 07-11288, 2009 WL 3621112, at *4 (E.D. Mich. 

Oct. 30, 2009). The statute thus provides for three categories of damages: (1) 

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"reasonable medical, hospital, funeral, and burial expenses for which the estate is 

liable," (2) "reasonable compensation for the pain and suffering, while conscious, 

undergone by the deceased person during the period intervening between the time 

of the injury and death," and (3) "damages for the loss of financial support and the 

loss of the society and companionship of the deceased." M.C.L. § 600.2922(6). As the 

Sixth Circuit observed in Frontier Ins. Co. v. Blaty, 454 F.3d 590 (6th Cir.2006), 

In Michigan, there is no common-law right to recover damages for a 

wrongfully caused death. As a statute in derogation of the common law, the 

wrongful death act must be narrowly construed so that only those damages 

explicitly provided for in the act are recoverable. 

Id. at 603 (internal punctuation and citations omitted). 

Here, Plaintiff represents, and no evidence has been presented to the 

contrary, that: (1) there are no outstanding medical, funeral or burial expenses of 

the decedent for which the estate is liable; and (2) no proceeds should be paid for 

conscious pain and suffering because there is no evidence that the decedent suffered 

any. (Dkt. 36, ~~ 6-7.) 

Instead, Plaintiff seeks distribution of the net settlement proceedings among 

certain wrongful death claimants for loss of "society and companionship". (Dkt. 36, 

~ 12.) The statute allows for a "fair and equitable" distribution to the heirs who 

suffered damages "for the loss of financial support and the loss of the society and 

companionship of the deceased." See M.C.L. §§ 600.2922(6), (6)(d). These are the 

damages under the statute that compensate for losses incurred by a decedent's 

survivors, not for losses incurred by the decedent or the decedent's estate. 

The statute, however, provides "little guidance in deciding how to arrive at a 

distribution that is 'fair and equitable."' Claim of Carr, 189 Mich. App. 234, 237-38 

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(1991). The definition of "equitable" includes what is fair and right in light of the 

facts and circumstances of the individual case. Attorney General v. Anker sen, 148 

Mich. App. 524, 553 (1986). Given the use of the phrase "fair and equitable" in the 

statutory language, the Michigan Court of Appeals has concluded that "the 

Legislature intended to vest courts with broad discretion in distributing wrongful 

death proceeds." In re Estate of Gettys, No. 323295, 2015 WL 8283155, at *4 (Mich. 

Ct. App. Dec. 8, 2015). 

As stated, Plaintiff proposes distributing 42.5% of the net settlement 

proceeds to each of the decedent's two minor children for the loss of their 

companionship and society with their father. In considering whether damages for 

loss of society and companionship have been distributed in a fair and equitable 

manner, the Court shall "assess the type of relationship the decedent had with the 

claimant in terms of objective behavior as indicated by the time and activity shared 

and the overall characteristics of the relationship" and will affirm the distribution 

where it is supported by the evidence of the parties' relationships with the decedent. 

Carr, 189 Mich. App. at 239; see also Brereton v. United States, 973 F. Supp. 752, 

758 (E.D. Mich. 1997) (loss of society and companionship caused by wrongful death 

compensates survivors for the destruction of family relationships that result when 

one family member dies). 

Accordingly, "the grief and mental anguish of surviving family members is 

not to be compensated" because "the idea is to compensate survivors for the absence 

of those positive elements of the relationship that can no longer be enjoyed because 

of the decedent's death." Porter ex rel. Estate of Smith v. Ne. Guidance Ctr., Inc., No. 

7 

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213190, 2001 WL 1179672, at *6 (Mich. Ct. App. Oct. 5, 2001). Where parties 

dispute the nature of a claimant's relationship with the decedent and witnesses 

testify to diametrically opposed assertions of fact, "the trier of fact must resolve the 

issue of credibility." In re Estate of Gettys, 2015 WL 8283155 at *4 (citing 

Kalamazoo Co. Rd. Comm'rs v. Bera, 373 Mich. 310, 314 (1964)). 

At the June 17, 2016 distribution hearing, evidence was presented concerning 

the relationship the two minor children enjoyed with their father. Their mother, 

Amy Murphy, testified that the decedent had been a stay-at-home father for most of 

the children's lives and that, as a result, the children and their father had a 

particularly close relationship. Even after their parents divorced, their father 

remained in daily contact with the children, and visited them. According to the 

testimony, the children have significant mental health care needs as a result of 

their father's death. In light of Amy Murphy's testimony and the lack of objection 

from any party as to the children's proposed distribution, the proof establishes that 

Adriana Murphy and Zachary William Murphy, II are clearly entitled to damages 

for loss of society and companionship of their father under the Michigan Wrongful 

Death Act. 

In addition to the distribution payments to certain wrongful death claimants, 

the proposed distribution authorizes the payment of certain attorney fees. (Dkt. 36, 

~~ 10-11.) First, Plaintiff requests to pay Attorney Rice's Guardian ad Litem fee for 

his representation of Ashlyn Murphy's interests in this matter. (ld. at~ 10.) 

Attorney Rice submitted an itemized bill for $1000, and the Court inquired of the 

parties at the hearing whether there were any objections and there were none. In 

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addition, Plaintiff requests to set aside $3,300 for the Darren Findling Law Firm for 

probate estate services provided in relation to the wrongful death settlement and 

distribution. (Id. at ~ 11.) After these fees are set aside and paid, the net proceeds 

will be distributed among the wrongful death claimants. (ld. at~~ 10-11.) No 

objection to the payment of these fees has been raised and the Court finds that 

these fees and reasonable and proper. 

III. CONCLUSION 

Having considered the proposed distribution of the net settlement proceeds, 

having heard evidence in support of the proposed distribution, and having 

considered the relationship between the two minor children and the deceased, the 

Court finds that the proposed distributions to Adriana Murphy and Zachary 

William Murphy, II are both fair and equitable. 

Accordingly, Plaintiffs Motion to Approve Distribution of Remaining 

Wrongful Death Settlement Proceeds (Dkt. 36) is GRANTED IN PART and 

RESERVED IN PART for the reasons stated on the record and in this Order. 

IT IS HEREBY ORDERED that 85% of the wrongful death proceeds set 

aside for distribution to the wrongful death claimants shall be distributed for the 

loss of society and companionship as follows: 

• Adriana Murphy 

• Zachary William Murphy, II 

• Ashlyn Murphy 

• Danica Murphy 

• Brandon Owen 

9 

42.5% 

42.5% 

$0.00 

$0.00 

$0.00 

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• Brianna Owen $0.00 

The distribution of the remaining 15% of the net wrongful death proceeds will be 

addressed at a later hearing to be scheduled by this Court. 

IT IS FURTHER ORDERED that the Guardian ad Litem's fee of One 

Thousand and 00/100 Dollars ($1000) is approved and shall be paid from the 

remaining settlement proceeds; 

IT IS FURTHER ORDERED that Attorney Bruce A. Rice is released as 

Guardian ad Litem for the minor Ashlyn Murphy; 

IT IS FURTHER ORDERED that attorney fees and costs of the Darren 

Findling Law Firm in the amount of Three Thousand Three Hundred and 00/100 

Dollars ($3,300.00) are approved as reasonable and necessary and said fees and 

costs shall be paid immediately, FORTHWITH; and 

IT IS FURTHER ORDERED that this Order does not resolve all pending 

claims and does not close this case. 

SO ORDERED. 

Dated: June 22, 2016 

TERRENCE G. G 

UNITED STATES DIS 

Certificate of Service 

I hereby certify that this Order was electronically submitted on June 22, 

2016, using the CM/ECF system, which will send notification to each party. 

10 

By: s/A. Chubb 

Case Manager 

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