If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.

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### S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

NAWAL DAHER and MOHAMAD JOMAA, Co

Personal Representatives of the ESTATE OF JAWAD JUMAA, also known as the ESTATE OF
JAWAD JOMAA

,

Plaintiffs

- Appellees, FOR PUBLICATION December 1, 2022

v No. 358209 Wayne Circuit Court
PRIME HEALTHCARE SERVICES

- GARDEN CITY, LLC, doing business as GARDEN CITY HOSPITAL, KELLY W. WELSH, D.O., and MEAGAN SHADY, D.O.

, LC No. 20

- 004169

- NH

Defendants

- Appellants.

Before: R ONAYNE K RAUSE
, P .J., and J ANSEN and S WARTZLE , JJ.

S WARTZLE
, J

. ( concurring dubitante in the judgment ).

I respectfully concur dubitante in the judgment

. I agree with the majority that this Court’s
earlier decision in Denney v Kent Co Road Comm , 317 Mich App 727; 896 NW2d 808 (2016) is squarely controlling here. Under our princi ple of stare decisis , M CR 7.215 (C) (2)

, (J)(1) , this panel
is bound to follow the holding in Denney

, and th at holding is broad enough to co ntrol the outcome
in this case

. With that said, I question the soundness of Denney for at least two reasons:

First, as the majority recognizes, Denney did not confront our Supreme Court’s decision in
Baker v Slack , 319 Mich 703; 30 NW2d 403 (1948) or the subse quent court decisions or legislative
amendments since Baker . In their briefs, defendants and amic i curiae set forth this history in great detail, and they argue that history is on their side. Whi le I tend to read the plain text of MCL 600.2922(6)

— in isolation

— as broadly as the Denney Court did, this leads me to my next point.

S econd, the Denney Court did not discuss or even cite subsectio n (3) of the wrongful death

act . In that subsection, our Legislat ure placed a strict limit on those persons who m ay be entitled to damages in a wrongful

- death suit

— specifically, those persons who, among other things, “suffer damages” as a result of the decedent’s death. MCL 600.2922(3) ; see also MCL 600.2 922(6)(d)- 2

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( “The court shall then enter an order distributing t he proceeds to those persons designated in subsection (3) who suffered damages and to the estate of the deceased for compensation for conscious pain and suffering, if any . . . .” ( e m phasis added))

. With respect to the key issue on appeal, i.e., the lost earnings of the decedent, subsection (3) would appear to require that any claim for lost earning s be made by a listed person who can show that the person has “suffer[ed] damages” as a result of those lost earnings of the de cedent. In other words, to recover damages for lost earnings under the act, the person would have to establish that the decedent supported the person

, which dovetails nicely with sub section (6)’s mention of “financial support” as a category of compensable damage s under the act

. Th us, when the entire statute is read in context, a broad reading of subsection (6) might not, in fact, be warranted.

This is all to say that there are complicated questions of statutory interpretation, legislative history

, and binding precedent, and yet al l of these questions are short

- circuited by Denney

. For these reasons, as well as those more fully set forth by Justice V IVIANO in his dissent ing statement
in Touma v McLaren Port Huron , 965 NW2d 550 , 551

- 553 ( Mich, 2021) ( V IV IANO , J, dissenting)

, I encourage our Supreme Court to take up this question and defini tively answer it

.
But, given the current state of the law under Denney a s illustrated by the majority, I must concur dubitante in the judgment.

/s/ Brock A. Swartzle