HIGGINBOTHAM v. FEARER LEASING, INC.
No. 9507
Michigan Court of Appeals
April 23, 1971
32 Mich. App. 664
OPINION OF THE COURT
1. ACTION—AMENDMENT—LIMITATION OF ACTIONS—RELATION BACK.
Pleadings may generally be amended to add a party defendant after the statute of limitations has run where the party added knows of the litigation and is not prejudiced by the amendment.
2. PLEADING—AMENDMENT—RELATION BACK—COURT RULES.
The court rule providing that an amendment of a pleading relates back to the date of the original pleading whenever the claim asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth in the original pleading does not apply to an amendment of the complaint to make a third-party defendant a principal defendant after the statute of limitations has run on the claim against him as principal defendant (
3. LIMITATION OF ACTIONS—TOLLING—THIRD-PARTY PRACTICE—JURISDICTION—STATUTES.
Jurisdiction of the court over a third-party defendant is for the limited purpose of enforcing his liability to the principal defendant and is not the kind of jurisdiction which by statute tolls the statute of limitations on a cause of action by the plaintiff directly against the third-party defendant (
4. LIMITATION OF ACTIONS—TOLLING—THIRD-PARTY PRACTICE.
The statute of limitations on a claim by plaintiffs directly against a third-party defendant was not tolled by the principal defendants’ motion to make the third-party defendant a party to the action for the purpose of contribution (
REFERENCES FOR POINTS IN HEADNOTES
[1-7] 51 Am Jur 2d, Limitation of Actions § 237.
Change in party after statute of limitations has run, 8 ALR2d 6.
A plaintiff may not amend his pleading to make a third-party defendant a principal defendant after the statute of limitations has run on his claim against the third-party defendant.
DISSENT BY DANHOF, J.
6. ACTION—LIMITATION OF ACTIONS—TOLLING—JURISDICTION.
The statute of limitations governing a personal injury action is tolled as to the plaintiff‘s claim against a party when jurisdiction over that party is acquired, and jurisdiction acquired by the court‘s granting the principal defendant‘s motion to join that party as a third-party defendant for purposes of contribution is sufficient (
7. ACTION—PLEADING—AMENDMENT—LIMITATION OF ACTIONS.
A complaint for personal injuries may be amended to add as a principal defendant a third-party defendant where the court acquired jurisdiction over the third-party defendant before the statute of limitations had run as to the plaintiff by granting the principal defendant‘s motion to join him as a third-party defendant for purposes of contribution, even though the motion to amend the complaint was made after the period specified by the statute of limitations.
Appeal from Wayne, Theodore R. Bohn, J. Submitted Division 1 February 10, 1971, at Detroit. (Docket No. 9507.) Decided April 23, 1971. Leave to appeal applied for April 30, 1971.
Complaint by John R. Higginbotham and Marion Haneline against Fearer Leasing, Inc., Packaging Corporation of America, and John C. Parmenter for damages for injuries from an automobile collision. Third-party complaint by defendants against Russell Certo. Plaintiffs’ motion to amend pleadings to include the third-party defendant as principal defendant granted. Third-party defendant appeals by leave. Reversed and remanded for further proceedings.
Sanford N. Lakin, for third-party defendant Russell Certo.
Before: DANHOF, P. J., and HOLBROOK and BRONSON, JJ.
HOLBROOK, J. The auto accident which is the subject matter of this suit occurred on December 28, 1966. On February 23, 1968, plaintiffs brought suit against Fearer Leasing, Inc., and the other principal defendants, i.e., Packaging Corporation of America and John C. Paramenter, in the Wayne County Circuit Court, alleging that plaintiffs were injured in an auto accident when a vehicle owned by the corporate defendants and driven by driver Paramenter rear-ended plaintiffs’ vehicle. An answer was filed on behalf of all defendants by their attorney. On May 31, 1968, a third-party complaint and summons was issued against Russell Certo as third-party defendant, by the defendants, acting as third-party plaintiffs.
The third-party complaint and summons were issued pursuant to the provisions of
Third-party defendant Russell Certo filed a motion for separate trials on January 12, 1970, as
On April 27, 1970, at the pretrial hearing before the Honorable Theodore R. Bohn, the plaintiffs for the first time requested an amendment to the pleadings wherein Russell Certo would be added as a principal defendant. Objection was made to the form, time, and manner of the motion. The court granted the motion by including in the pretrial statement its decision that the plaintiffs may file a complaint against Russell Certo as a principal defendant, with an order allowing plaintiffs to file an amended complaint against Russell Certo, as a principal defendant, entered May 14, 1970.
Leave to appeal the trial court ruling was granted by this Court on July 21, 1970.
The trial court, in its decision allowing the addition of the third-party defendant as a principal defendant after the running of the statute of limitations, relied on the case of Bensinger v. Reid (1969), 17 Mich App 219. That case stands for the general proposition that pleadings may be amended to add a party defendant after the statute of limitations
It appears, however, that there was no misnomer problem in the instant case, and therefore Bensinger v. Reid, supra, is not applicable. We next consider whether the amendment to name the third-party defendant as a principal defendant by plaintiffs may relate back to the date of the original pleadings under the provisions of
The following committee notes and authors’ comments appear in 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), pp 409, 414, 415:
“Presently there is much Michigan case authority to the effect that a party cannot set up a new cause of action barred by the statute of limitations at time of amendment. This limitation on amendment lends itself to technical legalistic interpretations as to what is a cause of action, yet a court willing to grant permission to amend is apt to broaden the meaning of a cause in order to do it. The Federal provision places the matter on the basis of certainty and fairness. A pleader under this rule will be allowed to amend if the amendment relates back to the conduct, transaction, or occurrence originally set forth. Thus the adverse party is not prejudiced, since he has been given notice of the matter originally pleaded. Once made a party to an action arising from a particular fact situation, he is aware that the original pleadings are subject to amend-
ment, and he ought not be permitted to force his opponent into a legally different statement of the facts for the sole purpose of barring the claim. And too, the statute of limitations is satisfied, since a new set of facts cannot be added by amendment if the statute has already run.
* * *
“Rule 118 imposes no subject matter restrictions on amendments to pleadings. Therefore, amendments by leave of court, as well as amendments without leave, may introduce new parties, new matter, or new causes of action or defenses, unless precluded by the rules of joinder or the statute of limitations.
* * *
“The stage at which leave to amend is requested, according to the circumstances of each case, is nevertheless a pertinent factor affecting the court‘s discretion. It will obviously become increasingly difficult to justify leave to amend at each later stage of a proceeding, especially if the circumstances indicate that the same action could have been taken at any earlier stage.”
Since
“The plaintiff next insists that, because the defendant railroad impleaded the government as a third-party defendant within two years from the time plaintiff‘s cause of action accrued, the statute of limitations was tolled. This is an ingenious but untenable contention. Carlisle v. Monongahela R. Co. (WD Pa, 1954), 16 FRD 426; Horan v. Pope & Talbot, Inc. (ED Pa, 1953), 119 F Supp 711; Lommer v. Scranton-Spring Brook Water Service Co. (MD Pa, 1943), 3 FRD 27. The amended complaint began the plaintiff‘s action on his claim against the United States too late. It is of no avail to the plaintiff that the railroad began its action on its claim against the government in time.”
In Storey v. Garrett Corporation (CD Cal, 1967), 43 FRD 301, it was decreed that the “relation back” doctrine does not enable a plaintiff to join entirely new parties as defendants after the statute of limitations has run, and the 1966 amendment liberalizing the Federal Rule (which has not been incorporated in
There is, however, a Federal court decision holding to the contrary and allowing the amendment of the complaint by plaintiff adding a new defendant. Meredith v. United Air Lines (SD Cal, 1966), 41 FRD 34. In Meredith a passenger was injured when the pilot of a commercial airplane was required to veer off abruptly to avoid a military-type airplane. Suit was commenced by the passenger and her hus-
“Civil Rule 15(c) as amended by the recent amendments which became effective July 1, 1966, reads as follows:
” ‘Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.’ ”
“In determining whether the instant case meets the requirements of Section 15(c) as amended, several inquiries must be made. First, does the claim asserted against Lockheed in the amended pleading arise ‘out of the conduct, transaction, or occurrence set forth * * * in the original pleading * * *‘? Obviously it does.
“Second, has Lockheed, the party brought in by the amendment, ‘received such notice of the institution of the action that [it] will not be prejudiced in maintaining [its] defense on the merits‘?
“And third, did Lockheed know or should it have known ‘that, but for a mistake concerning the identity of the proper party, the action would have been brought against [it]‘? Both of these requirements also seem amply satisfied by the facts of the instant case.”
The plaintiffs assert that under our statutes and court rules and the facts present in this case, the amendment naming the third-party defendant as a principal defendant was permissible. In order to properly consider this claim of the plaintiffs, it is necessary to consider the theory upon which they base their position. They first rely on
“The plaintiff may assert any claim against the third-party defendant arising out of the transaction
or occurrence that is the subject matter of the plaintiff‘s claim against the third-party plaintiff, and the third-party defendant thereupon shall assert his defenses as provided in Rule 111 and his counterclaims and cross-claims as provided in Rule 203.”
Plaintiffs assert that once the third-party defendant has been brought into the case, jurisdiction of the court is acquired over him; further, that the plaintiffs then may assert any claim against him arising out of the transaction or occurrence that is the subject matter of plaintiffs’ claim against the third-party plaintiff, and the third-party defendant thereupon shall assert his defenses as provided in
“The rule makes it clear that the third-party defendant‘s liability must run to the primary defendant, not to the primary plaintiff. That is, the defendant cannot implead a third party in order to contend that it is the third party instead of the defendant who is liable to the plaintiff.” (Emphasis supplied.)
The plaintiffs further claim that the statute of limitations was tolled by reason of the tolling provisions in the statute,
“The statutes of limitations are tolled when * * *
“(2) jurisdiction over the defendant is otherwise acquired * * *”
The tolling statute should be read with reference to the statute of limitations itself,
“No person may bring or maintain any action to recover damages for injuries to persons or property unless, after the claim first accrued to himself or to someone through whom he claims, he commences the action within the periods of time prescribed by this section.
* * *
“(7) The period of limitations is 3 years for all other actions to recover damages for injuries to persons and property.”
The plaintiffs did not commence their action against the third-party defendant within the three-year period.
It appears that the third-party defendant is subject to the jurisdiction of the court by reason of the grant of the third-party motion but for the limited purpose of compelling contribution to principal defendants. Does this fact toll the statute of limitations? If it does, then plaintiffs would be entitled to amend in conformance with the court rule and name the third-party defendant as a principal defendant. The difficulty in this regard is the fact that the plaintiffs in the first instance were not required to name the third-party defendant as a principal defendant. Nor were they required under the court rule to name the third-party defendant as a principal defendant. It was still a choice for the plaintiffs as to whether or not they would seek to make the third-party defendant a principal defendant. Donlin v. Detroit United Railway (1917), 198 Mich 327. Also see 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 551. The jurisdiction that the court obtained over the third-party defendant by the grant of the third-party plaintiffs’ motion was limited to giving relief in favor of the third-party plaintiffs for contribution because the defendants (third-party plaintiffs)
“The general rule is well settled that, where new parties defendant are brought in by amendment, the statute of limitations continues to run in their favor until they are thus made parties. The suit cannot be considered as having been commenced against them until they are made parties.
* * *
”Additional defendant brought in by original defendant. Even though the statute of limitations bars a direct recovery by plaintiff from a person not originally made a defendant, the original defendant may bring in such person as an additional defendant on an allegation of joint liability or liability over, and for the purpose of contribution or indemnity, but not on an allegation or averment that the new defendant is solely liable or if the effect of the joinder is to give plaintiff a right of action against the party joined.”
Mere knowledge of the existence of a potential claim or action does not toll the statute of limitations or estop one from asserting its provisions. Mason v. Letts (1968), 14 Mich App 330. We rule that the statute of limitations was not tolled as to the principal plaintiffs by reason of the defendants’ motion to make the third-party defendant a party to the action for the purpose of contribution.
“Except for the purpose of demanding a trial by jury under subrule 508.2, the amendment relates back to the date of the original pleading whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.”
This provision has been effective in adding parties defendant in so called misnomer cases. It has not yet been applied in cases such as the instant case.
We rule with the majority of Federal authority that plaintiffs cannot amend the pleadings after the running of the statute of limitations to make a third-party defendant a principal defendant. Plaintiffs knew about the third-party defendant Russell Certo‘s relationship to the accident in question the day that it happened. They also knew that on May 31, 1968, Russell Certo was made a third-party defendant by the principal defendants; that service of the third-party complaint and summons was had on Russell Certo on September 20, 1968. Plaintiffs had the right and privilege all during the period of the running of the statute of limitations up through December 28, 1969, to name Russell Certo as a principal defendant, but did not do so. No one could require the plaintiffs to name Russell Certo as a principal defendant, and this Court concludes that plaintiffs, by their failure to act, elected to forego their right to name him as a principal defendant. The trial court‘s granting of the motion naming Russell Certo as a principal defendant is set aside.
BRONSON, J., concurred.
DANHOF, P. J. (dissenting). I would affirm the action of the trial court granting the plaintiffs’ amendment, although I agree with the majority that the reliance of the trial judge on Bensinger v. Reid (1969), 17 Mich App 219, is misplaced.
The facts disclose that the accident which is the basis of the complaint of the plaintiffs occurred on December 28, 1966. Suit was commenced by the plaintiffs against the principal defendants on February 23, 1968, and on May 31, 1968, a third-party complaint and summons was issued against the third-party defendant. On November 15, 1968, an answer to the third-party complaint was filed by the third-party defendant. The order granting the plaintiffs’ motion to add the third-party defendant as a principal defendant was entered on April 27, 1970. Thus, the third-party defendant was a party to this action within the three-year statute of limitations prescribed by
The controlling question is whether the statute of limitations was tolled from the time the third-party defendant was properly served with a copy of the complaint and summons.
“The statutes of limitations are tolled when * * *
“(2) jurisdiction over the defendant is otherwise acquired * * *”
I would hold that under the facts of this case the trial court acquired the sufficient jurisdiction over
The statute of limitations having been tolled, the granting of the plaintiffs’ motion to amend their complaint by adding the third-party defendant as a principal defendant was discretionary with the trial judge. The record fails to sustain any abuse of discretion and I would affirm.