Recent Cases - Desertion” in Death Cases

Court of Appeals

Desertion” in Death Cases

In the published decision Moore v Prestige Painting, ____ Mich App ____; ____ NW2d ____ (2007) (CA Docket No. 274252, rel’d December 27, 2007), the Court of Appeals addressed the question of whether the decedent employee had “deserted” his daughter so as to make the daughter a conclusive dependent under the second sentence of MCL 418.331(b).

The relevant portion of this provision of the Act says:

In the event of the death of an employee who has at the time of death a living child by a former spouse or a child who has been deserted by such deceased employee under the age of 16 years, … such child shall be conclusively presumed to be wholly dependent for support upon the deceased employee….

The deceased employee’s former girlfriend claimed the deceased had deserted his daughter. The girlfriend testified that she and her daughter had lived with the deceased employee off and on, but they were not living together at the time of the deceased employee’s death.

This case had gone through many appeals and remands previously on different issues, including the admissibility of DNA samples. But, the only issue addressed by the Court of Appeals in this decision is the desertion question. The Workers’ Compensation Appellate Commission had held that the word “deserted” is not defined in the Act and, consequently, a dictionary should be consulted to determine its meaning. After so doing, the Appellate Commission found the deceased employee did “desert” the daughter.

The Court of Appeals reversed. The Court said that, although the Appellate Commission acted properly in consulting a dictionary, the Commission’s application of that dictionary definition to the facts of the case was wrong.

The Court said that Random House Webster’s College Dictionary defines “‘desert’” in part as “‘to leave (a person, place, etc.) without intending to return,’ and ‘to fail (someone) at a time of need.’” Additionally, “‘desertion’” is defined in part as the “‘willful abandonment … in violation of legal or moral obligations.’”

The Court said the Commission had found the deceased employee deserted his daughter simply because he did not offer financial support in the six weeks prior to his death. The Court said that the dictionary definition of desert connotes, however, an intent to abandon and a sense of finality. The Court said that the record does not support a finding that the deceased intended to completely abandon the daughter and forsake contact or support obligations. The Court said the deceased did not leave his daughter and his girlfriend; instead, his girlfriend moved herself and the daughter from the deceased’s residence. And, the Court noted that, while the deceased was not financially supportive in his last weeks, he still acted as a father to the daughter by, for example, initiating paternity proceedings and providing a DNA sample for testing. The Court added that the legitimacy or illegitimacy of the daughter was irrelevant. A deceased employee might desert a legitimate or illegitimate child under the statute.