*1 48 LAMBERTv CALHOUN op Opinion the Court op Saving Specific 1. Limitation Actions — Provisions — Time Limi- tation. specific legislative A time limitation on suit contained in creating operation a statute a cause of action excludes the saving provisions contained statute of limita- tions. 2. Limitation Actions —Motor Vehicle Accident Claims Fund.
The limitation contained in the Motor Vehicle Accident Claims requiring against suit the Accident Claims Fund to be brought years right within three is a limitation on the to seek previously from right immune source and both the remedy exclusively and the are controlled the limi- (MCLA 257.1128). 257.1118, tations contained the act 3. Limitation of Actions —Automobiles—Motor Vehicle Accident Claims Act —Minors. brought against A suit must be the Motor Vehicle Accident Claims Fund within three from the time the cause action accrued and a minor’s cause of action the fund is saving provision not affected bring any limitations that a minor entitled to action shall have year disability bring one after his is removed to the action n although (MCLA period 257.1118, the limitations has run 600.5851). 257.1128, 4. Limitation of Actions —Automobiles—Motor Vehicle Accident Tolling Claims Act — Statute. proceedings by The institution of an automobile insurance carrier pursuant subrogation rights against an uninsured motorist three-year involved an automobile accident did not toll the statute of limitations of the Motor’ Vehicle Accident [4] [2, 3, 5, [1] 51 Am Jur 51 Am Jur 51 Am Jur 2d, 2d, References Limitations of Actions §§ Limitations of Actions 2d, Limitations of for Points Actions in Headnotes §§ 138-199. 138,182-185. § 103. 1973], Calhoun insurer because the cannot recover from the fund prohibits since the act indemnification the fund in such a 257.1128). 257.1118, 257.1122, situation *2 by Holbrook, J. 5. Limitation of Actions —Automobiles—Motor Vehicle Accident Act —Minors. Claims provides Claims
The Motor Vehicle Accident which that in person all actions in which seeks to recover from Motor the Fund the Vehicle Accident Claims action must be commenced accident, years the date of within three from the did not create therefore, action; saving proviso of the new cause embodied in limitations, allowing the a minor who is year bring any disability to have entitled action one after his bring although action the is removed to the limitations run, (MCLA applies 257.1118,257.1128, 600.5851[1]). has to it 6. Limitation Actions —Automobiles—Motor Vehicle Accident Legislative Saving Claims Act — Intent — Provision. Legislature’s passing The intent Motor Vehicle Accident provide for from was to for fund those normally compensation accident victims who would receive no injuries uncollectibility guilty for their because from a tortfeasor; infants, excluding incompetents and others disabled by denying protec- from suit under act them the saving provision tion of statute of limitations brought year which allows suit to be within one after the disability directly was removed counter to that etseq., 600.5851[1]). intent 257.1101 from
Appeal Baum, Victor Wayne, J. J. Submit- 10, 1973, (Docket ted Division May at Detroit. 14640.) No. July Decided appeal 1973. Leave to applied for. Lambert, minor,
Complaint by Beverly her friend, Lambert, next E. Carmie Esker damages personal Calhoun for for injuries received an automobile accident. The Secretary as Director of the Motor Vehicle Accident Claims Fund, judg- intervened as a defendant. Accelerated ment for the Plaintiff appeals. State. Affirmed. App 506 op Opinion Court Schwartz, Silver, Schwartz, Tyler
Sommers, & S. Schwartz Richard D. and Stanley Gordon (by Toth), plaintiff. for Robert A. General, Kelley, Attorney
Frank General, Joseph B. Bil- Derengoski, Solicitor and Carlsen, Assistants Attorney K. itzke Carl General, of State. Gillis, J.,P. and Holbrook H.
Before: J. Bashara, JJ. Plaintiff, Gillis, Lambert, Beverly
J. H. P. J. was accident on an automobile October injured time, She old at and was a 1968. James in a car driven W. Holland. passenger Calhoun, of Esker an uninsured negligence *3 motorist, alleged proximate to cause of be Plaintiff received an from the accident. award company, Holland’s insurance which then sued pursuant in Detroit Common Pleas Court Calhoun subrogation rights. 27, 1971,1 plaintiff, through On her November friend, Cal brought against next suit defendant County in Court. Secre Wayne houn Circuit pursuant of State intervened in the action tary 9.2805, 257.1105; MSA and for accel MCLA moved against judgment alleging plaintiff’s erated claim Claims Fund was the Motor Vehicle Accident set three-year limitations by the statute barred 9.2818,2 257.1118; MCLA MSA out in MCLA 257.1128; MSA 9.2828.3 1 years Approximately 2 3 and months after accident. 2 9.2818, 257.1118; provides: "In all in which MSA actions MCLA fund, against sought be must is to be said action years from the cause of action accrues”. within 3 the time commenced 3 257.1128; 9.2828, provides: actions "All or MCLA claims filed any person seeks to from the fund shall under which recover 3 from the date accident”. or commenced within 509 Opinion the Court that her argued minority below
Plaintiff saved the Motor her of action under Vehicle Acci- cause of a provision virtue dent Claims limitations.4 general statute of granted The trial court motion. Secretary’s three appeals raising Plaintiff issues which we will consider seriatim. specific
It that a is well-settled time on in a limitation suit contained statute creating operation a cause of action excludes the provisions contained Eaton, statute of limitations. Holland v 373 Mich 34, 39-40; 892, (1964); 127 895 Genesee NW2d Bourrie, Bank 383, 390; Merchants v 375 WTroy Maschmeyer Co v 713, (1965); NW2d Haas, 289, 296; 902, (1965). concept establishing
The entire for the fund payment judgments obtained uninsured motorists, though nature, remedial new Wilson, Steele v did not at law. exist common 185 NW2d 418-419 act,5 Like dramshop the limitation contained in the Motor Vehicle Accident is on right to seek recovery from a im- previously mune right source and both the remedy and the exclusively created are controlled by the limita- Eaton, tions Holland contained therein. See supra. hold the court We trial properly ruled on issue. *4 not
We do consider holding such a denies or process equal protection due violates of law. 4 600.5851(1); 27A.5851(1), provides: person MCLA MSA "If the first ** * * * * bring any age entitled to action is under 21 he or claiming year disability those under him 1 shall have after his * * * * * * bring period although removed the the action run”. limitations has 5 436.22; MCLA MSA 18.993. App 506 510 48 Holbrook, by J. ambiguity or
Any
inconsistency
engen-
claim of
wording of MCLA
disparate
257.1118,
dered
the
257.1128, supra, and MCLA
has been over-
interpretation
Lisee v
judicial
come
State,
32, 41,
Secretary of
42;
388 Mich
188, 191,
(1972),
which delineates
the different
of the two
intendments
sections. Fur-
ther,
from the
recovery
it is
Motor
only
Vehicle
Fund that
is barred by
Accident Claims
the limita-
against
the action
period,
tion
not
uninsured
persons,
adults,
motorist. All
whether
infants or
seeking
from the fund must do
recovery
so within
prescribed period,
and such "nondiscrimina-
justified by
practical
tion” is
consideration that
prejudice
can
an
by anyone
stale claims
insurer’s
investigate
preserve evidence,
opportunity
private companies
or "funds”
they
e.g.,
See,
Oakland Motor Co v
government.
Co,
Fidelity
American
74;
Affirmed. Costs to appellee.
Bashara,
J., concurred.
(dissenting).
This writer
is unable
257.1122;
9.2822, prohibits
MCLA
indemnification
fund of
insurer in such situations.
*5
511
Dissent
J.
Holbrook,
prevailing opinion
to the
to subscribe
and there-
fore
dissents. On
respectfully
the authority
Eaton,
Holland
v
34;
373 Mich
"It
long
has
been a rule well-settled in Michigan that
the
tion on
Legislature,
intent of
including
a time limita
creating
suit
a statute
right,
provisions
general
applicable
limitations are not
expressly
unless
included.
Rapids
Co,
Bement v Grand
&
64;
I R
194 Mich
160 NW
(1916), Bigelow Otis,
424
409;
An analysis of the Motor Vehicle Accident Claims Act this writer forces conclude that the provisions applicable of that act here did not cre- Therefore, ate a new cause of action. the savings proviso 600.5851(1); embodied in MCLA 27A.5851(1), apply did the three-year provision limitations of the Motor Vehicle Acci- plaintiffs dent Claims cause of action is saved. This conclusion rests on a number of grounds. In place, Supreme the first Court has itself specifically described the Motor Vehicle Acci- as one remedial dent Claims Act character, in rather than as one necessarily creating new sub- unknown at common law. In Lisee rights stantive of 32, 44, 188, 193,194 (1972), the Court stated: purpose Legislature passing "The the Motor Vehicle Accident compensate Claims Act was to those persons operation injured negligent who were as a result of the person. of a motor vehicle an uninsured * * * dealing issue, "In sight with this of we must riot lose legislation the fact innocent that this is remedial an to aid injured person. Legislature intended that compensa- the Fund be promptly provide available to injuries.” (Emphasis supplied.) tion such Holland, supra, The Court of way contrast, interpretation concerned with of dramshop two-year and its act statute of limita- tions; dramshop act was conceded therein to be derogation the common-law rule it because cause of action. new Motor
Secondly, Vehicle Accident Claims in such a way is structured it becomes apparent analyzing Legislature when it that did not a new cause action create to arise when fund sued a known unin- a claimant through sured defendant. Sections 11 of the act 9.2806-9.2811) 257.1106-257.1111; MSA are the operative sections when the uninsured known, motorist is like here. such cases the may intervene, position State but his derivative from that the uninsured defendant. right The common-law to sue the expanded uninsured defendant is not altered or *7 hand, these sections. On the other Secretary of if intervene, he chooses has no new All that defenses. is different from the common is that law the tortfeasor is involuntarily insured state, by the victim if he is entitled to a an judgment has assured remedy from the fund. In contrast, 12-21 of the act 257.1112- §§ 9.2812-9.2821) 257.1121; MSA operative are the sections when the defendant unknown. is such a plaintiff, case the in the interest of supplying him given with a is remedy, of Secretary State as a defendant to stand in for the unknown defendant. have, 18,1 Sections 12-21 a three-year statute § Subject limitations. to this interpreta- writer’s tion, statute of limitations applicable § judge apparently The circuit felt that 18§ was in toto unconstitu Lisee, supra, Lisee, however, only tional because of the notice in text. held that provision jurisdictional, not § was not that the section was unconstitutional. when the uninsured Any defendant is known. interpretation other structural of the act would they §§ make prescribe 18 and 28 redundant since both three-year statute of limitations for recovery against Conceivably, the fund. §§ 12-21 of they may interpreted act, the right against since be to create a Secretary of State unknown at might law, common provisions not be affected embodied MCLA 600.5851; MSA might equal protection 27A.5851. While this and due raise process problems, issue was not before this Court since here seeks recov- ery against defendant, a known in which action Secretary the of as of State has intervened. The statute correctly § limitations contained in 28 was seen applicable to this case below, the court but it finding holding erred in controlling. together Holland, coupled hang Sections 6-11 §28 with separably §§ from 12-21 but create no new cause of action. The former sections are only, savings provision remedial and as such the apply preserve the plaintiff’s statute of limitations year passes
cause of action until one age majority. after she reaches the policy behind the Motor Vehicle Accident supports purpose Claims Act this conclusion. The just act, compensation stated, as is to assure negligently those victims of accidents caused might validly argued uninsured motorists. It denying that effect of the there is a rational state interest savings provisions of MCLA 600.5851; 27A.5851, MSA known and the where the real defendant is un- per of State is sued might prevent §§ 12-21, since state claims making investiga- of State from effective *8 tions of the accident in the fund’s defense. Con- Secretary trariwise, when the of State intervenes in an action where there is a known defendant worry §§ under 6-11 of the act he need hot if the plaintiff protected by is old case because general savings of the the tions. clause statute of limita- such situations of State’s presumably protected by interests will defendant’s own defense of the defense is the real matter, if inadequate of State has an identified defendant from which to seek reim- paid bursement for sums out of the fund as a Legislature result of the suit. The intent of the passing provide remedy the act was to for those normally accident victims who compensation would receive no injuries for their because of uncol- lectability guilty By excluding from a tortfeasor. incompetents infants, and others disabled from by denying pro- immediate suit them the saving provision general tection of the of the stat- directly ute of limitations we would counter thát provide intent. The fund was created to just compensation injured victims, accident merely not so that it could be counted as another state bank account.
Arguendo, if the Motor Vehicle Accident Claims applied protection Act is so that is denied of the clause of the §§6-11 limitations under act, the result principles proc- would offend constitutional of due Grubaugh ess. See Johns, v St 165, (1970); 778, 180 783-784 Corona v Lenawee County Commissioners, Road 588; point 194 NW2d It is notable on this though that even it is here held that Motor Vehicle Accident Claims Act does not create action, new cause of Holland, Court in was not confronted with the constitutional issues incompetent that would arise if a minor or other given savings provisions were not the benefit of statute of limitations under statutes creating causes of action unknown at common law.
Accordingly, I would reverse and remand.