120 Mich. App. 623 | Mich. Ct. App. | 1982
Plaintiff appeals as of right from the entry of accelerated judgment for defendant Detroit Automobile Inter-Insurance Exchange and the entry of summary judgment for defendant Farmers Insurance Group.
On June 21, 1975, plaintiff was injured when his motorcycle collided with a car driven by Irene Thayer. His motorcycle was not insured for no-fault benefits. On March 2, 1976, he sued Thayer
On September 16, 1976, plaintiffs sister testified in a deposition that she owned no-fault automobile insurance with DAIIE and that that insurance covered plaintiff.
On July 6, 1977, Davidson v Johnson, 76 Mich App 497; 257 NW2d 139 (1977), was decided. It stated that in such a situation the motorcycle driver is to recover from the car owner’s insurance company. This same decision was reached in Underhill v Safeco Ins Co, 76 Mich App 13; 255 NW2d 349 (1976), released for publication July 20, 1977. Based on Davidson, the trial court granted summary judgment in the present case for plaintiff against Farmers. The order granting summary judgment was dated November 22, 1977.
That day a split on this issue developed in this Court. Hill v Aetna Life & Casualty Co, 79 Mich App 725; 263 NW2d 27 (1977), followed Davidson and Underhill in ruling that the motorcycle driver must collect from the car owner’s insurance company. However, Davidson was reversed on rehearing. 79 Mich App 660; 262 NW2d 887 (1977). The Court now ruled that the plaintiff must collect from his own insurance company. This same result was reached a few days later in Porter v Michigan Mutual Liability Co, 80 Mich App 145; 263 NW2d 318 (1977). Consequently, the parties stipulated on June 13, 1978, that DAIIE be added as a defendant.
This Court affirmed the summary judgment grant on January 5, 1979, based on Underhill, Hill, and the dissent in Porter. Kalakay v Thayer,
On remand, the trial judge granted summary judgment for Farmers based on the Supreme Court’s decision in Underhill. He simultaneously granted accelerated judgment for DAIIE holding that the statute of limitations had expired. MCL 500.3145(1); MSA 24.13145(1).
Suing the wrong party usually does not toll the statute of limitations. Ciotte v Ullrich, 267 Mich 136; 255 NW 179 (1934), Anno: Change in party after statute of limitations has run, 8 ALR2d 6, § 53, p 112. However, such a determination depends upon the particular circumstances of the case. Cobb v Mid-Continent Telephone Service Corp, 90 Mich App 349; 282 NW2d 317 (1979).
Plaintiff is arguing that this Court should, through its equitable powers, hold that the statute of limitations should not apply in this case to bar his suit against DAIIE. He claims that at the time he brought suit the law required him to sue Farmers — the car owner’s insurance company — and that he then sued DAIIE within a reasonable time after discovering that the law might change. In effect, plaintiff is arguing that the equitable doctrine of contra non valentem agere nulla currit praescriptio (a prescription does not run against the party who could not bring a suit) should apply to this case. See Sincox v Blackwell, 525 F Supp 96 (WD La, 1981).
To a certain extent, a statute of limitations is
On balancing the interests, we look to the defendant’s conduct (whether inequitable or not) on the one hand and to see if he had actual notice. See Matti Awdish, Inc v Williams, 117 Mich App 270; 323 NW2d 666 (1982). On the other hand, we look to the plaintiff’s due diligence and capacity to sue. See, e.g., Foster v Woods, 71 Mich App 147; 246 NW2d 387 (1976), lv den 399 Mich 805 (1977).
We would most likely hold for plaintiff if in fact he could not have sued DAIIE when he sued Farmers because the law then required him to sue Farmers. However, even if we assume that plaintiff exercised due diligence in discovering that DAIIE insures his sister’s car, even if we assume that the statute did not already bar the suit at that time, and even if we assume that the six-month delay between the reversal of Davidson on rehearing and plaintiff’s suit against DAIIE was not unreasonable, we find that plaintiff did not exercise due diligence in suing DAIIE. The doctrine of contra non valentum agere nulla currit praescriptio does not apply where the delay is due to the plaintiff’s own neglect. Sincox, supra. At the time plaintiff sued Farmers and found out about DAIIE, the law was not clear but unsettled. The law did not become settled until July 6, 1977, ten
"It is not unjust to deny a plaintiffs claim when he has failed to notify a defendant within the period of limitations.” Meda v City of Howell, 110 Mich App 179, 184; 312 NW2d 202, 204 (1981).
We also affirm the grant of summary judgment for Farmers Insurance Group. Underhill, supra.
Affirmed.
