901 N.W.2d 577
Mich.2017Background
- On Dec. 26, 2011 Jeffrey Haksluoto was seen in Mt. Clemens ER; he alleges a misread CT led to delayed diagnosis and injury.
- The two-year statute of limitations for his medical-malpractice claim expired Dec. 26, 2013.
- Plaintiffs mailed a notice of intent (NOI) on Dec. 26, 2013 (the last day of the limitations period).
- Michigan law requires at least 182 days’ notice (MCL 600.2912b) and provides that mailing a compliant NOI tolls the limitations period if the limitations period would otherwise expire during the notice period (MCL 600.5856(c)).
- Plaintiffs filed their complaint on June 27, 2014 (the day after the 182-day notice period ended). Trial court denied defendants’ motion to dismiss; the Court of Appeals reversed, holding the NOI did not toll because the notice period did not begin until Dec. 27, 2013.
- The Michigan Supreme Court reversed, holding a timely NOI filed on the last day of the limitations period tolled the limitations period and preserved one whole day for filing after the notice period ended.
Issues
| Issue | Haksluoto (Plaintiff) | Mt. Clemens (Defendant) | Held |
|---|---|---|---|
| Whether an NOI mailed on the last day of the limitations period tolls the statute when only a fractional day remained | The NOI tolled the limitations period because it was mailed before that day ended; the fractional day should be rounded up and preserved as a whole day after the notice period | The NOI did not toll because under MCR 1.108(1) the first day is excluded, so the notice period began Dec. 27, after the limitations period expired, leaving nothing to toll | Held for Haksluoto: a timely NOI on the last day tolled the statute; the fractional day is preserved as a whole day to use after the notice period ends |
| Whether plaintiff’s complaint filed the day after the 182-day notice period is timely | Filing on the preserved day (the day after the 182-day period ended) is timely | Filing one day after the 182-day notice was untimely because the plaintiff should have filed on day 182 | Held for Haksluoto: plaintiff had to wait the full 182 days and then could use the preserved day; the complaint filed the day after the notice period was timely |
Key Cases Cited
- Warren v. Slade, 23 Mich. 1 (Mich. 1871) (common-law rule rejecting fractional days and preference to ‘round up’)
- Driver v. Naini, 490 Mich. 239 (Mich. 2011) (NOI tolls the limitations period when filed with time remaining)
- Ligons v. Crittenton Hosp., 490 Mich. 61 (Mich. 2011) (discusses tolling contingent on limitations period remaining)
- Tyra v. Organ Procurement Agency of Michigan, 498 Mich. 68 (Mich. 2015) (requires waiting entire notice period before filing)
- People v. Woolfolk, 497 Mich. 23 (Mich. 2014) (interpreting common-law treatment of fractional days in modern context)
- Dousman v. O’Malley, 1 Doug. 450 (Mich. 1844) (historical application of counting whole days to ensure full time afforded)