Eide v. Kelsey-Hayes Co.

• Decision Date: 13 July 1988
• Docket Number: Docket No. 79392,KELSEY-HAYES
• Citation: 431 Mich. 26,427 N.W.2d 488
• Parties: , 47 Fair Empl.Prac.Cas. (BNA) 1050, 48 Empl. Prac. Dec. P 38,566, 57 USLW 2061 Valerie A. EIDE, and Craig Eide, Individually, Plaintiffs-Appellees, v.COMPANY, a foreign corporation, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 488

427 N.W.2d 488

431 Mich. 26, 47 Fair Empl.Prac.Cas. (BNA) 1050,

48 Empl. Prac. Dec. P 38,566, 57 USLW 2061

Valerie A. EIDE, and Craig Eide, Individually, Plaintiffs-Appellees, v. KELSEY-HAYES COMPANY, a foreign corporation, Defendant-Appellant.

Docket No. 79392.

Supreme Court of Michigan.

Argued Nov. 4, 1987.

Decided July 13, 1988.

[431 Mich. 27] Susan Winshall & Associates, P.C., Susan Winshall, Francyne Stacey, Southfield, for plaintiffs/appellees.

[431 Mich. 28] Berry, Moorman, King, Cook & Hudson, Thomas M. Sullivan, Sheryl A. Laughren, Detroit, for defendant/appellant.

Kelman, Loria, Downing, Schneider & Simpson by Michael L. Pitt, Stuart N. Dowty, Detroit, for Michigan Trial Lawyers Ass'n, amicus curiae.

Clark, Klein & Beaumont by Dwight H. Vincent, Individually and for the Firm, Detroit, for Michigan Mfrs. Ass'n, amicus curiae; Christine M. Weinert, Francis S. Jaworski, of counsel.

OPINION

BOYLE, Justice.

Two issues are presented in this review of the plaintiff's award of damages for violations of the Civil Rights Act, M.C.L. Sec. 37.2101 et seq.; M.S.A. Sec. 3.548(101) et seq. 154 Mich.App. 142, 397 N.W.2d 532. First, we must consider whether a derivative cause of action for loss of consortium is precluded by the Civil Rights Act. In our view, there is nothing in the statute which suggests a legislative purpose to preclude this derivative cause of action, and, indeed, to conclude otherwise would undermine the legislative purpose underlying the act. Thus, we believe, contrary to the partial dissent of Justice Griffin, that a derivative claim for loss of consortium should be recognized under the Civil Rights Act.

Second, we must consider whether exemplary damages, apart from actual damages, may be awarded for violations of the Civil Rights Act. In this respect, we are in agreement with Justice Griffin and conclude that exemplary damages may not be awarded apart from actual damages. However, we would emphasize that, under longstanding Michigan law, the award of exemplary damages was duplicative of certain aspects of actual damages.

Michigan has long recognized a cause of action for loss of consortium in favor of spouses, Montgomery v. Stephan, 359 Mich. 33, 38, 101 N.W.2d 227 (1960). But see Sizemore v. Smock, 430 Mich. 283, 299, 422 N.W.2d 666 (1988) (concurring opinion of Justice Griffin suggesting that Berger v. Weber, 411 Mich. 1, 303 N.W.2d 424 [1981], is no longer to be regarded as precedent). A claim for loss of consortium is simply one for loss of society and companionship. As Justice Griffin explains, a claim for loss of consortium is usually considered to be derivative, but only in the sense that it does not arise at all unless the other, impaired spouse has sustained some legally cognizable harm or injury. Thus, courts have consistently treated loss of consortium not as an item of damages, but as a separate cause of action. Montgomery, supra. See also Prosser & Keeton, Torts (5th ed), Sec. 125, pp. 931-934. This fact is often obscured by the use of the term "derivative" and also by the common procedural requirement that the claim be joined with that of the impaired spouse. As one commentator has explained:

"So far as damages are based on intangible losses of society and affection, there is some risk that a jury hearing the husband's claim will consciously or not, include something in the verdict for the wife's loss as well, and vice versa. To minimize this risk, some courts have required that the main claim and the consortium claim be tried together, at least in the ordinary situation." Prosser & Keeton, supra, p. 933. See also Rusinek v. Schultz, Snyder & Steele Lumber Co., 411 Mich. 502, 508, 309 N.W.2d 163 (1981).

In our view, the partial dissent of Justice Griffin obscures the fact that loss of consortium is a separate cause of action and thus misstates the issue presented in this case. The question is not whether a cause of action is available under the Civil Rights Act, but whether there is anything in the act which would preclude this independent cause of action. We believe that this question must be answered in the negative.

In Boscaglia v. Michigan Bell Telephone Co, 420 Mich. 308, 362 N.W.2d 642 (1984), we considered a distinctly different question--whether Michigan's Fair Employment Practices Act, 1955 P.A. 251, authorized a claim for loss of consortium. In doing so, we principally relied upon the remedial language of the FEPA and its focus on equitable relief. Boscaglia, supra at 322, 362 N.W.2d 6420. That language specified:

"If, upon the preponderance of the evidence on the record considered as a whole, the [fair employment practices] commission shall determine that the respondent has engaged in or is engaging in any unfair employment practice, the commission shall state its findings of fact and shall issue and cause to be served on such respondent an order requiring such respondent to cease and desist from such unfair employment practice and to take such further affirmative or other action as will effectuate the purposes of this act, including, but not limited to, hiring, reinstatement or upgrading of employees with or without back pay, or admission or restoration to union membership, including a requirement for reports of the manner of compliance." 1955 PA 251, Sec. 7(h).

In addition, the Boscaglia Court noted that title VII of the federal Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-5(g), was similarly limited to equitable remedies and had been construed to preclude a cause of action for loss of consortium. Boscaglia, supra at 323, 362 N.W.2d 642.

The Civil Rights Act, 1976 P.A. 453, which supplanted the FEPA, is not limited to remedying discrimination in employment, but extends to public accommodations, services, and educational institutions. In language befitting this comprehensive scheme, art. 8 of the Civil Rights Act includes its own civil action enforcement provision:

"A person alleging a violation of this act may bring a civil action for appropriate injunctive relief or damages, or both." M.C.L. Sec. 37.2801(1); M.S.A. Sec. 3.548(801)(1).

Nothing in the language of this provision suggests a legislative intent to preclude a cause of action for loss of consortium. Indeed elsewhere in art. 8 of the act it is emphasized:

"This act shall not be construed to diminish the right of a person to direct or immediate legal or equitable remedies in the courts of this state." M.C.L. Sec. 37.2803; M.S.A. Sec. 3.548(803)(1).

The interpretive provision of Sec. 803 of the Civil Rights Act mirrors the interpretive provision of Const 1963, art. 5, Sec. 29:

"Nothing contained in this section shall be construed to diminish the right of any party to direct and immediate legal or equitable remedies in the courts of this state." ¹

It is therefore apparent that the legislative purpose underlying the civil enforcement provision of the Civil Rights Act was intended to provide all rights embraced in Const. 1963, art. 5, Sec. 29. ² Moreover, it is apparent that Const. 1963, art. 5, Sec. 29 itself cannot be construed to limit the legal and equitable remedies of the Michigan citizen. A right of action for loss of consortium is not only an existing legal remedy, but one which was in existence long before the adoption of Const. 1963. Montgomery, supra.

Nothing in the language of the statute itself warrants such a restrictive interpretation. The partial dissent has fixed upon the opening clause of Sec. 801(1), which provides: "A person alleging a violation of this act...." The partial dissent asserts that a spouse in an action for loss of consortium is not such a person. This is obviously incorrect. However, it is undisputed that loss of consortium is a derivative cause of action and the complaining spouse must allege a violation of the act to substantiate the claim. Thus, the clear language of the statute would support recognition of a cause of action for loss of consortium. Hiltz v. Phil's Quality Market, 417 Mich. 335, 343, 337 N.W.2d 237 (1983). Moreover, the fact that the act itself does not confer civil rights upon the spouse is entirely irrelevant to whether an independent cause of action exists for loss of consortium. ³ Properly perceived, Craig Eide's claim for loss of consortium is not a claim under the Civil Rights Act, but a claim at common law. Prosser & Keeton, supra.

Assuming that any construction of Sec. 801(1) of the act is necessary, it must first be compared with the correlative language of its statutory predecessor, the FEPA. The opening clause of the FEPA, Sec. 7(b) was: "Any individual claiming to be aggrieved by an alleged unlawful employment practice...." As we emphasized in Boscaglia, the complainant in a derivative cause of action, such as loss of consortium, does not claim to be aggrieved by an alleged unlawful employment practice, but by the subsequent injury to the impaired spouse. Boscaglia, supra 420 Mich. at 322, 362 N.W.2d 642. In contrast, the opening clause of the civil enforcement provision of the Civil Rights Act is: "A person alleging a violation of this act...." It is presumed that a change of language in a statute is intended to change the result of the statute. 2A Sands, Sutherland Statutory Construction (4th ed), Sec. 45.12, pp. 54-55. We would, therefore, construe this broadening of the statutory language to imply a broadening of the remedy to which it is addressed. Such a construction is also consistent with the well-established rule that remedial statutes are to be liberally construed to suppress the evil and advance the remedy. 3 Sands, Sutherland Statutory Construction (4th ed), Sec. 60.01, p. 55. Therefore, in our view, neither the clear language of the act nor conventional rules of statutory construction support the majority's view that Sec. 801(1) precludes a claim for loss of consortium. ⁴

We have addressed the intrinsic analysis of the partial dissent because we believe that it is ultimately flawed. How...