*1 v MAXHEIMER HARDY v MAXHEIMER JOHNSON 1985, 4, 78328, 77350, 77351, at 78329. Submitted October Docket Nos. 18, appeal applied Lansing. February Leave to 1986. Decided for. representative Plaintiffs, Hardy, personal of the estate Suzie Johnson, deceased, personal Holland, Betty Jean and Derick deceased, Mathews, representative the estate of Curtis Circuit brought separate in the Genesee death actions 5, on August decedents had drowned 1983. The Court on 2, 1979, capsized Lake in September at Mott when their canoe County. actions were defendants in both Named as Genesee Maxheimer, doing individually Flint business as Ronald rented, and the Livery, the canoe was from whom Canoe Genesee, operation County canoe rental which allowed the responded motions for pursuant with to contract. Defendants actions, claiming period judgment that the in both accelerated court, Harry B. The trial run on these claims. of limitation had Ara, J., as final and certified the orders the motions Me denied 1963, also ordered that pursuant 518.2. The trial court to GCR proceedings purposes further the cases be consolidated appeal applications from the for leave trial. Defendants’ appeals Appeals granted by and the the Court of orders were Held: were consolidated. which re- found in MCL 600.5852 1. The quires not extend the law” does that an action "survive 600.2922, action, of limitation (i.e., simultaneously instantaneous occurred where the death is act). alleged wrongful with the applicable negligence claims limitations 2. The statute of References 2d, 201. Am Jur Courts §§ 2d, 25, 26, 35-46, Death 120-122. Am Jur §§ 2d, of Actions 102-106. Am Jur Limitation §§ rights Survivability based on USCS of civil cause 42 ALR Fed 163. 1983. representative delay appointing administrator or other Effect of person accruing in whose after death of on cause of action favor it would have at or accrued. 28 ALR3d Quick Death. in the Index under See the annotations ALR3d/4th Hardy v Maxheimer governed claims, thus, filing three-year period of these 600.5805(8) provided of limitation on these claims in MCL 2, 1982, expired September applicable have on would absent an tolling provision. *2 Application saving provision 3. of the found in MCL 600.5852 is limited to survival actions. 4. Where of a cause action exist does not before decedent’s Rather, it cannot said to have survived the death. simultaneously, the when act and occur death of cause action at arises death. The of determination whether by purposes an applying saving action "survived law” for of provision by distinguish- found in MCL 600.5852 to be is made action) (i.e., ing between instantaneous death a death action). (i.e., noninstantaneous death a survival Appeals by 5. The Court of is bound of doctrine stare Supreme decisis follow 1916 Court decision wherein the drowning held constituted instantaneous death. continuing injury Where there is a in death within a minutes, few death is instantaneous. instantaneous, therefore, 6. The deaths in case were plaintiffs provision saving were not entitled to invoke the of judgment. MCL 600.5852. Defendants shall have accelerated proceedings Reversed and for remanded consistent with the opinion. J., Shuster, saving apply R. M. dissented. He would provision survival-type MCL found in 600.5852 to actions statute, 600.2922, brought under the death death-type well as to under that statute. Opinion of the Court Wrongful — — 1. Limitation of Actions Death Survival Actions — Death Actions. saving provision The an action which survives law found in regarding period the statute the effect death of before the of period limitation has run not does extend the of limitation in a wrongful death action where the decedent’s death was instanta- neous, i.e., simultaneously alleged wrongful occurred with the act; application of the is limited to sur- actions, i.e., noninstantaneous, occurring vival where death was (MCL alleged wrongful 600.2922, 600.5852; after 27A.2922, act 27A.5852). Negligence Resulting — 2. of Limitation Actions Death or Injury. Negligence resulting injury person gives in death or to a rise to a App 236
three-year period action based on on a cause of limitation tolling saving provi- applicable negligence, an such absent (MOL 27A.5805[8], 600.5805[8];MSA sion — — Actions Death Actions. 3. Actions Survival a decedent’s cannot be said have survived A cause action death; a cause exist before the death where it does not and the act at time of when arises simultaneously. death occur — Stare Decisis. Courts Appeals by the stare decisis and doctrine of The Court of bound is may Court. overturn a decision of not Drowning — — 5. Death Death. Instantaneous by drowning instantaneous death. Death constitutes Shuster, R. J. M.
Dissent — Wrongful — Death Actions Survival 6. Limitation of Actions — Death Actions. provision survives law found for an action which The regarding the effect death before the statute *3 survival-type applies actions and death- run to limitation has (MCL wrongful type under the death statute 27A.5852). 27A.2922, 600.2922, 600.5852;MSA — Wrongful — Death. 7. Death Death Instantaneous single wrongful one intended to create The death statute was by wrongful conduct and to action for death caused cause of death and between instantaneous obliterate the distinction creating of in of one cause noninstantaneous death favor another, results from the conduct where death indicted; through wrongfully instantaneously injuries either statute, pressed may all one of action for under the cause (MCL damages dowing injuries resulting in death from 27A.2922). 600.2922;MSA Segar, Dean, Dean, Shulman, & P.C. Hart (by Shulman), B. Leonard for plaintiffs. Payton Payton & L. Kaufman Donald (by Khederian), Richard Maxheimer. for Ronald Portnoy Wilson, Leader, P. P.C. Robert & (by Roth), for Genesee County. Maxheimer Opinion of the Court Kelly, P.J., M. J. M. and Allen and R. Before: JJ. Shuster,* granted, appeals by J. In these
Allen, leave we Ferris, are asked to in review our Ortiz v 776; Mich NW2d where it found in was MCL period that the determined MSA 27A.5852 does not extend the limitation death action addition,
where death is instantaneous. arewe drowning asked decide whether constitutes instantaneous death a matter of law. personal representatives
Plaintiffs are the of the decedents, estates of the Derick Holland Cur- tis Mathews. Holland and Mathews drowned on September capsized 2, 1979, when their canoe at County. Mott Lake in Genesee Plaintiffs’ decedents Livery, had rented their canoe from Flint Canoe operated pursuant which to a contract with the County of Genesee.
Plaintiffs filed their
death actions in
County
August 5,
Genesee
Circuit Court on
responded
Defendants
with
motions
accelerated
claiming
judgment
actions,
in both
that the
limitation
run
of
causes
had
on these claims. These
theory
action were based on the
negligence and,
thus,
statute
of limitations
applicable
negligence
governed
filing
claims
Regional
of these claims. Hawkins v
Labo-
Medical
ratories, PC,
"If a
dies before the
has
of
days
or within 30
after the
limitations has
run
run,
may
law
com-
an
which
be
action
survives
against the
or
of
by or
administrator
menced
the deceased
executor
may
person
proved
or
as a
the claim
against
person,
the estate
the deceased
debt
case
be,
years
time
after
may
any
at
within
letters
granted,
testamentary
although
letters
administration are
* *
run,
*.
period of
has
But
limitations
bring
administrator
shall
an
no executor or
under
provision
it within 3
this
he commences
unless
(Empha-
period of
has run.”
years after the
limitations
added.)
sis
to have
held that
appears
tacitly
The trial court
ac-
provision applies only
this
However,
tions,
is
where death
noninstantaneous.
of Beach
questioned
the court
whether
On
defendants
Ortiz,
properly
construed Hawkins
that,
result,
as a
application
has no
where
is
Prior
to the 1939 consoli-
death
instantaneous.
into
dation
survival actions and death actions
statute,
Michigan’s wrongful
27A.2922,
these
distin-
two actions were
*5
v Maxheimer
Opinion
of
Court
guished by determining whether death was nonin-
pp
Hawkins,
stantaneous or instantaneous.
428-
431;
Eckhardt,
Crook v
703;
281 Mich
In on contend- ing applies any §5852 wrongful regardless statute, under whether the claim would have been characterized prior as a death action or survival action to 1939. following plain- reasons, For the we believe that argument misreading tiffs’ is based on a of Haw- correctly kins, and that Ortiz was decided. wrongful malprac- death medical rejected case, tice the conten- wrongful tion that the cause of action death statute created a new
independent of the former death Rather, and survival acts. the Court reaffirmed its Olney’s Estate, in In re NW2d it had where held repealed by survival act had not been the 1939 except death act insofar as the survival act was inconsistent with the 1939 act. The sur- incorporated simply vival act into the death act, with the effect that all survival and death brought pursuant actions would thereafter be to a single However, statute. consolidation ac- tions did not alter the basic nature of these causes of action. recognizing continuing viability
After of the distinction between death actions and survival rejected argument actions, the Hawkins Court under death statute the running of limitation commenced the decedent’s death for both on the date of
causes action. 149 Opinion of the Court prior Rather, had the case consolidation been held Hawkins Court of these actions running period begins on the the limitation is instanta- act. Where death date of the action), wrong- (Le., the date of the a death neous ful act always death will date of the decent’s However, is non- where death be identical. *6 action), (i.e., wrongful a the survival instantaneous precede always and, decedent’s death act will probably, the date of death. most malpractice Hawkins, oc- of medical In the act prior to the date of dece- nine months curred clearly Therefore, consti- death. claim dent’s Although not suit was a action. tuted wrongful years act, the two initiated within Court held that provision ap- stating: plied, results in noninstanta- wrongful conduct "Any time death, appropriate prosecuted by an the claim
neous representative * * * sur- is survival action [which] to pursuant by the decedent’s death MCL vives law 600.2921; is to doubt 27A.2921. There no reason ** * surviving by statutory references actions those under MCL law include MSA 27A.2922 for noninstantaneous death Therefore, 600.5852; MSA wrongful conduct. from bring in which to operates 27A.5852 to extend the time such suits.” 415 Mich wrongful supra, Ortiz, medical
In another death forego- malpractice case, this Court looked ing language Hawkins, to reach a converse Specifically, Court held that Ortiz conclusion. wrongful in instantaneous when conduct results by not it a death action and does survive is this We law the decedent’s death. holding believe supported by Hawkins, an logical application reasoning. For, where v Maxheimer Opinion of the Court cause of action does not exist before a decedent’s it cannot be said to have survived the wrongful Rather, death. when the act and death simultaneously, occur the cause of action arises at death. supra,
Plaintiffs maintain that stands proposition for the that a death action "survives Supreme expressly law” since the over- Armstrong, ruled Rhule v indicated, NW2d 223 alia, which had inter death actions were created death statute and could not survive aspect the decedent’s death. Plaintiffs on focus of Rhule’s which indicated that survive, death actions that, could not and conclude by overruling Rhule, the Court held that making argu- such actions would survive. plaintiffs ignore primary ment, thesis of Haw- distinguish kins, which was to between death actions and survival actions. To the extent simply Rhule, Hawkins overruled it held that *7 a new cause of action was not created the 1939 merely statute, as this statute recodified two exist- ing specifi- action, causes of actions, and that some cally actions, survival do survive a decedent’s death as a matter of law. See 415 Mich 349. plaintiffs point addition,
In out in Hawkins Supreme the Co, stating: Court cited Janes v Sackman Bros (CA 1949), approval,
177 F2d 928
with
interpretation
given
"We find the
post-1939
to the
death act
relationship
and its
saving provision
to the
27A.5852,
announced
the
Co,
federal circuit court
in Janes v Sackman Bros
to be correct.”
When the Hawkins which approval of the entire with is read the context opinion, appears Supreme our it Hawkins adoption did not intend full-scale of the in the Court a point analysis. First, Janes at an earlier opinion, Supreme Court summarized Hawkins making mention of in Janes without language extending to death cases: Janes, "In found the action was the federal court
premised on the survival act element of plaintiffs death statute decedent did not die since instantaneously plaintiff severely burned. The after he was appointed years administrator over four products liability after the death and The court found that action 'survived action. law’ the dece- thus benefit from dent’s provision would * * Moreover, indicates that legislative purpose consolidating the death and bring person acts to his "was enable regardless [the act] action under of whether there was instantaneous death or survival of the injured
person, provide person to which *8 1 Janes, supra, applied predecessor saving provi- to the sion, which was found at MCL MSA 27.610. Maxheimer v Opinion op the Court damages persons be recovered should p quoting Olney, 'distributed’ purpose to eliminate confusion Mich 82. The regarding party should which statute under proceed. that However, is no indication there purposes of alleviated confusion was to be determining saving provi- applicability of the unambiguous language of the sav- sion. Given ing provision, requiring an action "survive that opinion, of the Hawkins law”, the entire tenor indicating is to be made that this determination distinguishing and nonin- instantaneous between application of death, we believe stantaneous actions. to survival is limited Supreme concluded Beach, our drowning instantaneous constituted following doctrine: on the based continuing injury is a there "Where moments, it is 'instantaneous’ a few death within meaning 303, 269, 192 Mich the statute.” within the Railway, quoting United West v Detroit (1909). 271; 123NW 1101 age, argue day drown- that, in this Plaintiffs ing categorically instantane- classified as be cannot techniques which can due to modern ous death drowning Therefore, victims. to resuscitate used they of whether determination that the maintain drowning must be decided is instantaneous Although we believe the facts of each case. on plaintiff’s argument merit, we has considerable never overruled Court has note supra. holding Beach, we are bound Since its powerless to and are stare decisis the doctrine of Supreme Court, Ratliff decision of overturn a Corp, 410, 416; 339 Motors General holding. Beach's must follow we NW2d *9 246 149 Mich 236 R. M. J. Shuster, Dissent We hold that under the facts of this case death plaintiffs and, therefore, was "instantaneous” were not entitled to invoke the judg- § 5852. Defendants shall have accelerated ment. proceedings
Reversed and remanded for consis- opinion. question costs, tent with this No public being interest involved. Kelly, P.J.,
M. J.
concurred.
(dissenting).
apply
R. M.
J.
I would
Shuster,
savings provision
found MCL
survival-type
brought
27A.5852 to
actions
under
wrongful
death-type
death statute as well as to
wrongful
actions
under
that act. The
single
death statute was intended to
one
create
wrongful
cause of action for death caused
con-
Olney’s Estate,
65,
duct. See In re
76-78;
309 Mich
(1944)
dissenting);
J.,
The distinction between instantaneous and non-
developed
instantaneous death was
when death
actions and survival actions were exclusive of each
separate
other as two
causes. See the discussion in
Maney’s Estate,
Ford v
The Hawkins v Laboratories, PC, 420, 436; Medical NW2d 729 claims that rejected has now the notion that death statute created new cause action and holds consolidation of death and survival in the death statute did not alter *10 the basic nature of the causes action. This point. overly Legis- technical view misses the The separate lature has the action combined causes of confu- for death survival and eliminated the from sion resulted the artificial distinction between instantaneous noninstantaneous The act one for death. injuries resulting created cause pp supra, Hawkins, death.
in approval 432-433, cited with Chief Justice North’s opinion Olney’s majority Estate, in re prior found survival act was not "at all incon- any provision except act, sistent with in the 1939 provides: 1 in act 'All section the latter injuries in such death, shall hereafter be under act’ ”. this I do not think that Hawkins mandates the ma- holding. jority’s interpreta- Hawkins found "the given post-1939 tion to the act and rela- death its tionship provision to the of MCL 27A.5852, as announced the federal cir- Co, cuit court in Janes Sackman Bros 177 F2d 1949) (CA p 928 to be correct”. adoption 439. I believe that of the evinces an merely part it, entire Janes rationale and not opinion analyzed the lead contends. Janes relationship Michigan’s wrongful between death savings provision act and the as follows: Shuster, R. M. J. Dissent present up "Since the action is set as a survival granted by remedy action under § applies, the combined now 27.711, three-year period obviously 27.605 § years by is but extended a maximum of three provisions giving appointment the administrator 259 Mich allegations limits which the combination of these two limitation statutes time for of an Estate, Szydelko in 27.610. v Smith’s Cf. § (1932). plaintiff by And NW his certainly brought has his case within imposes. develop But if it even should at the was, fact, instantaneous, in trial the action is death and that grounded 27.711 the features of which § Act, preferable continue the think former Death we that, nevertheless, view to be Of course that would be clear were the other states the action is not barred. analogies from suggesting applicability general of the six-year controlling. statute to be held But the clear-cut cases, background appar- rule as to judicial apply broadly ent death that 27.610 does reaction cases, legislative attempt and the out the blot troublesome distinctions between these former diverse rights Michigan us lead to believe that court will exception appli- hold this to the statute also limitation ” cable to this branch of the now combined death claim. (Emphasis added.) 177 F2d 932. I think that approved Hawkins of the Janes inter- pretation relationship of the between the act and the savings provision of MCL 600.5852; MSA 27A.5852. *11 Ferris,
I disagree with Ortiz v
128 Mich App