848 N.W.2d 465
Mich. Ct. App.2014Background
- Conflict over whether Driver overruled Zwiers without explicit mention; the trial court denied summary disposition relying on Zwiers; NOI timing under MCL 600.2912b and tolling of the statute of limitations at issue; Tyra and Furr are prior Michigan Court of Appeals decisions interpreting Zwiers and Driver; the panel sought to resolve ambiguity about MCL 600.2301’s application to Burton-type premature filings; court ultimately affirms the trial court and leaves definitive ruling to the Michigan Supreme Court
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Driver overrule Zwiers on MCL 600.2301’s application to Burton-type premature filings? | Zwiers remains good law after Driver | Driver implicitly overruled Zwiers in Burton-type contexts | No definitive overrule; issue left for future Supreme Court decision |
| Can MCL 600.2301 cure defects in NOI or premature filings to preserve claims? | MCL 600.2301 should preserve claims via amendment or disregard of defects in Zwiers context | Driver limits and cautions against broad use of 2301 to salvage time-barred or premature filings | Unclear; not enough to overrule Zwiers; follow future definitive ruling by Supreme Court |
| Is the plain language of MCL 600.2301 sufficient to disregard premature filings when substantial rights are unaffected? | 2301 permits disregarding errors where substantial rights are unaffected | Disregard must be balanced with notice requirements and tolling purpose | Unclear; requires future Supreme Court guidance |
| Do Burton, Bush, and Driver collectively require dismissal or tolling in premature-NOI contexts? | Under Burton, premature NOI can toll if properly applied via 2301 | Driver restricts 2301’s reach to avoid undermining NOI process | Not resolved; remains unsettled between opinions by Michigan Supreme Court |
| Should the court decide Driver overruled Zwiers now or remand for Supreme Court input? | Driver overrules Zwiers; rely on Driver to negate Zwiers | Need definitive Supreme-Court ruling; not clear if Driver overruled | Affirm trial court; leave definitive resolution to Supreme Court |
Key Cases Cited
- Burton v Burton, 471 Mich 745 (Mich. 2005) (tolling and notice-waiting-period issues; Burton not addressed by 2301 in Driver)
- Bush v Shabahang, 484 Mich 156 (Mich. 2009) (NOI defects and 2301 applicability to NOI process)
- Driver v Naini, 490 Mich 239 (Mich. 2011) (whether amendment to add nonparty defendants relates back to NOI for tolling)
- Zwiers v Growney, 286 Mich App 38 (Mich. Ct. App. 2009) (premature filing issues; 2301 via Bush and Burton context)
- Tyra v Organ Procurement Agency of Mich, 302 Mich App 208 (Mich. Ct. App. 2013) (rejected outright overrule of Zwiers by Driver; reliance on 2301 in context)
- Furr v McLeod, 303 Mich App 801 (Mich. Ct. App. 2013) (lead opinion initially held Driver overruled Zwiers; not controlling here)
- Whitman v City of Burton, 493 Mich 303 (Mich. 2013) (statutory interpretation of MCL 600.2301; plain-language approach)