540 N.W.2d 477 | Mich. Ct. App. | 1995
LINDSEY
v.
HARPER HOSPITAL
Michigan Court of Appeals.
Sommers, Schwartz, Silver & Schwartz, P.C. (by Richard D. Fox), for the plaintiff.
Dykema Gossett PLLC (by Daniel G. Wyllie and Kathleen McCree Lewis), for Harper Hospital.
Buesser, Buesser, Black, Lynch, Fryhoff & Graham, P.C. (by Charles D. Brown), for Richard Lenaghan, M.D., and Richard Lenaghan, M.D., P.C.
Grier & Copeland, P.C. (by Wilson A. Copeland), for Robert Holmes, M.D., and Arbula, Asfaw & Holmes Cardiovascular & Thoracic Surgeons, P.C., an assumed name of Arbula & Asfaw Cardiovascular Surgeons, P.C.
Before: HOLBROOK, JR., P.J., and HOEKSTRA and D.M. BEAGLE,[*] JJ.
*424 PER CURIAM.
Defendant Harper Hospital appeals by leave granted an order denying summary disposition. We reverse.
I
On September 14, 1987, plaintiff's mother, decedent Carolyn Lindsey, was admitted to defendant hospital for cardiac surgery. Complications developed, and she died on January 8, 1988.
On September 14, 1990, plaintiff was appointed temporary personal representative of decedent's estate. Less than one month later, on October 9, 1990, plaintiff was appointed personal representative of the estate. Letters of authority, identical in all relevant respects, were issued at the time of each appointment. On October 1, 1992, plaintiff, as personal representative of decedent's estate, filed this suit alleging that defendant hospital and various physicians committed malpractice in connection with the treatment of decedent.
On July 14, 1993, defendant hospital moved for summary disposition pursuant to MCR 2.116(C)(7), alleging that plaintiff's claim was barred by the statute of limitations because it was not filed within two years after plaintiff was appointed temporary personal representative and issued letters of authority as required by MCL 600.5852; MSA 27A.5852.
Plaintiff, relying on the authority of Szydelko v Smith's Estate, 259 Mich. 519; 244 N.W. 148 (1932), argued that the two-year period allowed in § 5852 did not commence when she was appointed temporary personal representative. Rather, it began running only after she was appointed personal representative on October 9, 1990. Thus, the suit filed on October 1, 1992, was timely filed.
Following a hearing, the trial court denied defendant *425 hospital's motion for summary disposition and certified the question involved for appeal.
II
A motion for summary disposition pursuant to MCR 2.116(C)(7) may be supported by affidavits, depositions, admissions, or other documentary evidence. Patterson v Kleiman, 447 Mich. 429, 432; 526 NW2d 879 (1994). If such material is supplied, the trial court must consider it. Id. Otherwise, the trial court must review the plaintiff's complaint, accepting its well-pleaded allegations as true and construing them in a light most favorable to the plaintiff. Turner v Mercy Hosps & Health Services of Detroit, 210 Mich. App. 345; 533 NW2d 365 (1995). This Court reviews a summary disposition determination de novo as a question of law. Id.
III
At issue in this case is when the two-year period for commencing actions contained in § 5852, as amended, begins if a person who is later appointed personal representative is first appointed temporary personal representative.
For actions brought under the wrongful death statute, MCL 600.2922; MSA 27A.2922, the limitation period is governed by the provision applicable to the liability theory involved. Turner, supra. Here, plaintiff's theory of liability is medical malpractice and the suit must be commenced within two years of the last medical treatment provided by the defendant or within six months after the plaintiff discovers or should have discovered the claim, whichever is later. MCL 600.5838a(2); MSA 27A.5838(1)(2). However, because this is a wrongful death action, the following savings clause applies:
*426 If a person dies before the period of limitations has run or within 30 days after the period of limitations has run, an action which survives by law may be commenced by the personal representative of the deceased person at any time within 2 years after letters of authority are issued although the period of limitations has run. But an action shall not be brought under this provision unless the personal representative commences it within 3 years after the period of limitations has run. [MCL 600.5852; MSA 27A.5852.]
Relying on Szydelko, supra, plaintiff argues that the two-year period for filing suit contained in the above provision does not begin until letters of authority are given to the personal representative, regardless of when and if letters of authority are earlier given to a temporary personal representative. In Szydelko, the plaintiff's decedent was killed by a truck driven by an employee of Smith. Smith died several days after the accident. A special administrator, who could not be sued under the Probate Code then in effect, was appointed for Smith's estate. The plaintiff filed suit against the estate more than two years after the appointment of the special administrator, but less than two years after the general administrator received "letters testamentary or of administration."
The Szydelko Court stated the issue for resolution as whether "when a debtor dies after a cause of action accrues, the legislature intended the two-year limitation period to begin to run after the appointment of a special administrator or only after the issuing of letters to the general administrator or executor." 259 Mich. 521. The Court's decision required it to interpret 1929 CL 13981, which stated, in pertinent part:
[A]nd if the cause of action does by law survive, *427 the action may be commenced by or against the executor or administrator of the deceased person . .., as the case may be, at any time within two years after granting letters testamentary or of administration.
The Szydelko Court concluded that by using the phrase "letters testamentary or of administration" in § 13981, the Legislature did not intend to include the issuing of letters of special administration, and, therefore, the two-year limitation period did not begin to run until a general administrator or executor was appointed.
We find plaintiff's reliance on Szydelko to be misplaced because it is distinguishable from the instant case both by virtue of the nature of the cause of action involved and the meaning of the terms contained in the underlying statutes. Unlike Szydelko, the instant case involves the application of the limitation period to an action by an estate, not against an estate. Given that special administrators could not be sued in actions accruing before the death of the decedent under the Probate Code then in effect, 1929 CL 15589, any other holding by the Szydelko Court could have resulted in actions being barred before a party capable of being sued was appointed. Here, the availability of a defendant capable of being sued is not an issue. Rather, the issue here involves the ability of a plaintiff to commence a lawsuit.
Additionally, the Court in Szydelko was interpreting a statute that differs in several important respects from the current statute. Where § 13981 used the terms "executor or administrator," § 5852 now uses the term "personal representative." As noted in Szydelko, a special administrator had no powers of general administration and was granted letters of special administration as opposed to *428 "letters testamentary or of administration." 259 Mich. 522.
In contrast, MCL 700.9(3); MSA 27.5009(3) defines "personal representative" to include a temporary personal representative.[1] MCL 700.175; MSA 27.5175 specifically indicates that a temporary personal representative may commence and maintain an action as a personal representative. Furthermore, MCL 700.179; MSA 27.5179 provides that if a temporary personal representative later becomes the personal representative, that person is accountable as though that person were the personal representative from the date of appointment as temporary personal representative.
Given the changes in § 5852 and the Revised Probate Code since Szydelko was decided in 1932, we do not believe Szydelko to be controlling in the instant case. Rather, we believe a complete and harmonious reading of the current statutes requires us to hold that here the two-year limitation period contained in § 5852 began to run from the time that plaintiff was appointed temporary personal representative and given letters of authority. Thus, plaintiff's action is barred by the statute of limitations and the trial court erred in failing to grant defendant hospital's motion for summary disposition.
Reversed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] The Revised Probate Code provides guidance in interpreting § 5852. This Court has previously noted that the phraseology employed in § 5852 was changed in 1988 to conform with the Revised Probate Code. Turner, supra. When two statutory provisions, such as the Revised Probate Code and the Revised Judicature Act, share a common purpose, the terms of the provisions should be read in pari materia in order to carry into effect the purpose of the Legislature as found in harmonious statutes on a subject. Witt v Seabrook, 210 Mich. App. 299; 533 NW2d 22 (1995).
