103 Mich. App. 767 | Mich. Ct. App. | 1981
Lead Opinion
Plaintiffs appeal as of right from an order entered on October 29, 1979, granting summary judgment in favor of defendants pursuant to GCR 1963, 117.2(1). The plaintiffs in the present case are the minor children of James and Marva Haack.
On May 18, 1971, plaintiffs’ father, James Haack, was injured when defendant Agney drove his truck into the back of the motorcycle Mr. Haack was driving. As a result of the injury from this accident, Mr. Haack is a paraplegic. In 1972, Mr. Haack and his wife brought a suit against the defendants for injuries caused by the accident. The children’s claims were not pleaded in that suit.
However, on April 3, 1978, the Court of Appeals in Berger v Weber, 82 Mich App 199; 267 NW2d 124 (1978), lv gtd 403 Mich 846 (1979), held that a child did have a cause of action for loss of parental society and companionship when the parent is severely injured.
The Berger Court, in appreciation that it was recognizing a new cause of action, gave the caveat that:
"In the interests of justice and fairness we hold the new rule to apply to the instant case and all future cases. See Plumley v Klein, supra [388 Mich 1; 199 NW2d 169 (1972)], at 8.” 82 Mich App at 213.
Thereafter, on April 12, 1979, the plaintiffs in the instant case filed their suit.
The narrow issue on appeal is whether plaintiffs’ cause of action is included or precluded by the Berger Court’s decision that the new cause of action would apply to all "future cases”. Plaintiffs argue that "future case” refers to a case filed after the Berger decision while defendants argue that "future case” refers to a case in which the claim accrues after the Berger decision. We agree with the defendants.
In Parker v Port Huron Hospital, 361 Mich 1, 28; 105 NW2d 1 (1960), the Court overruled the doctrine of common law immunity to tort actions of charitable institutions. The new rule was held to apply "to the instant case and to all future causes of action arising after September 15, 1960,
A claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results. MCL 600.5827; MSA 27A.5827. In the present case, plaintiffs’ cause of action accrued on May 18, 1971, because this is the date that their father was injured. The Berger rule became effective on April 3, 1978, and applied to that case and all future cases or future causes of action. Since plaintiffs’ claim accrued prior to April 3, 1978, the rule enunciated in Berger does not apply to plaintiffs’ claim. Therefore, the grant of summary judgment was not erroneous.
Affirmed.
Dissenting Opinion
(dissenting). I respectfully dissent. Until the Supreme Court clarifies the decision in Berger v Weber, 82 Mich App 199; 267 NW2d 124 (1978), lv gtd 403 Mich 846 (1979), I would hold that the rule announced by our Court
