MAKAROW v VOLKSWAGEN OF AMERICA, INC
Docket Nos. 77482, 78219
Court of Appeals of Michigan
Submitted December 5, 1985, at Detroit. Decided February 2, 1987.
157 Mich. App. 401
The Court of Appeals held:
1. Under Michigan‘s “borrowing” statute, the period of limitation applicable to an action filed in Michigan by a nonresident and based on a cause of action that accrued outside of
2. Michigan law provides that a plaintiff having a condition of mental derangement such as to prevent him from comprehending rights he is otherwise bound to know at the time his claim accrues has one year after the disability is removed to bring the action even if the applicable period of limitation has run. The question of whether a plaintiff is insane is one for the jury to decide unless it is incontrovertibly established either that the plaintiff did not suffer from insanity at the time the claim accrued, or that he had recovered from any such disability more than one year before he commenced his action. In this case, plaintiff‘s sanity was properly a question for the jury and the trial court did not err in denying defendants’ motions for accelerated judgment on the basis of the statute of limitations.
3. New York‘s tolling provisions must be considered when deciding whether plaintiff‘s action is barred under that state‘s statute of limitations. The New York tolling statute itself provides no definition of an insane person. New York courts however have held that “an individual who is unable to protect his legal rights because of an overall inability to function in society” is insane for tolling purposes. The record in this case did not indicate that plaintiff suffered from such disability. Plaintiff‘s action is therefore barred under New York law and consequently barred under Michigan law by Michigan‘s “borrowing” statute.
Reversed and remanded for dismissal.
SHEPHERD, J., agreed that the action ought to be dismissed, but wrote separately to state that the trial court should have declined jurisdiction on the basis of forum non conveniens.
OPINION OF THE COURT
1. LIMITATION OF ACTIONS — FOREIGN CLAIMS.
The period of limitation applicable to a claim brought in Michigan by a nonresident shall be either the period provided in the statute of limitations of Michigan or the applicable limitation period of the state where the cause of action accrued, whichever bars the claim (
2. LIMITATION OF ACTIONS — TOLLING — INSANITY.
Michigan law provides that a plaintiff having a condition of
3. LIMITATION OF ACTIONS — FOREIGN CLAIMS — TOLLING.
A court, when determining which statute of limitations is applicable to a claim brought in Michigan by a nonresident and based on a cause of action that accrued outside of Michigan, must first consider the other state‘s statute of limitations and tolling provisions before considering Michigan‘s statute of limitations and tolling provisions.
Richard M. Goodman, P.C. (by Richard M. Goodman), and Gromek, Bendure & Thomas (by Mark R. Bendure), Attorneys of Counsel, for plaintiff.
Miller, Canfield, Paddock & Stone (by Wolfgang Hoppe and Sally L. Geib), for Volkswagen of America, Inc.
Bushnell, Gage, Doctoroff & Reizen (by George E. Bushnell, Jr., Noel A. Gage, and Eugene H. Beach, Jr.), for Volkswagenwerk Aktiengesellschaft.
Before: MACKENZIE, P.J., and D. F. WALSH and SHEPHERD, JJ.
MACKENZIE, P.J. Defendants appeal by leave granted from orders denying (1) their motions for accelerated judgment on the bases of the statute of limitations, res judicata, and failure to afford full faith and credit to a judgment of a sister state, and (2) their motions to decline jurisdiction on the
This products liability action arises out of an automobile accident which occurred on May 10, 1975, in the State of New York. Plaintiff, who at all relevant times has been a New Jersey resident, was driving a 1973 Volkswagen Super Beetle at the time of the accident. The car was licensed and registered by the State of New Jersey. The accident left plaintiff a quadriplegic.
In August, 1975, plaintiff was sued by two passengers also injured in the accident. Plaintiff assisted his insurer‘s attorneys in their defense at least to the extent of giving detailed deposition testimony describing the accident. That case was settled in 1977.
At some point during the passengers’ suit, plaintiff‘s insurer‘s attorneys informed him that he might have a products liability claim. Two days before the New York period of limitation for products liability actions would have run, plaintiff asked one of the insurer‘s attorneys to retain an attorney for him. Exactly three years after the accident, on May 10, 1978, a New York attorney commenced an action against defendant Volkswagen of America (VWOA) on plaintiff‘s behalf in New York. The same day, a products liability suit against VWOA was also commenced on plaintiff‘s behalf in New Jersey by a New Jersey attorney. VWOA is a New Jersey corporation which imported and sold VW Beetles in the United States. At the time of the accident, its executive, corporate, and
On January 26, 1979, VWOA was granted summary judgment in the New Jersey action on the ground that the two-year New Jersey period of limitation barred the action.
On October 21, 1980, more than five years after his accident, plaintiff commenced the instant Michigan action against VWOA and VWAG, the German corporation which manufactured plaintiff‘s automobile. VWOA responded by filing a motion for accelerated judgment based on the statute of limitations, res judicata, and failure to accord full faith and credit. VWAG filed a similar motion and both defendants filed motions to dismiss on the basis of forum non conveniens. By November 23, 1981, orders denying each of VWOA‘s motions had been entered. This Court denied leave to appeal in July, 1983. In May, 1984, the Supreme Court remanded for our consideration as on leave granted. 419 Mich 866. In the meantime, the circuit court had also denied each of VWAG‘s motions, along with a motion for separate trial on the statute of limitations issue. This Court subsequently granted VWAG‘s application for leave to appeal and consolidated the cases. Trial court proceedings were stayed pending appeal.
On March 5, 1985, plaintiff commenced a products liability suit against VWAG in New Jersey on the basis of an amended New Jersey statute tolling
We begin our analysis of defendants’ statute of limitations claim by considering Michigan‘s “borrowing statute,”
An action based upon a cause of action accruing without this state shall not be commenced after the expiration of the statute of limitations of either this state or the place without this state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of this state the statute of limitations of this state shall apply.
This provision has been interpreted to mean that the period of limitation applicable to a claim brought in Michigan by a nonresident shall be either the statute of limitations of Michigan or the applicable limitation period of the state where the cause of action accrued, whichever bars the claim. Cliffs Forest Products Co v Al Disdero Lumber Co, 144 Mich App 215, 226; 375 NW2d 397 (1985), lv den 424 Mich 896 (1986). Stated another way, if the statute of limitations of either state bars plaintiff‘s claim, the action should be dismissed. The parties assume plaintiff‘s cause of action accrued in New York; we will not disturb that assumption.
Michigan‘s limitation period for products liability actions is three years.
We first consider whether plaintiff‘s claim was barred under Michigan law.
In the instant case, when ruling on defendants’ motion for accelerated judgment the court had
[3]a. Since May 10, 1975, Mr. Makarow has been and remains a quadriplegic. That as a result of this physical disability, he has and remains:
(i) Depressed, bitter and enraged over the prospect of having to spend the remainder of his life in a wheelchair.
(ii) He has experienced exaggerated mood swings, similar to those of an individual suffering a severe mental illness, mainly manic depression.
(iii) He has expressed frequent thoughts of suicide.
(iv) He has developed total dependence upon his mother, to both his and her emotional and psychological detriment.
b. That in an effort to cope with his physical disability, Mr. Makarow has:
(i) Excessively used the defense mechanisms of denial and repression.
(ii) Given up his own decision making process by choosing to believe that others are acting in his best interest.
c. That as a result of the above stated conditions, Mr. Makarow has turned his total attention to his own immediate physical needs which has precluded his ability to foresee long-range problems and take necessary actions to enable him to deal with such problems.
4. That based upon his psychological evaluation and testing it is [my] opinion that Mr. Makarow was sufficiently impaired in judgment during the period following his accident, and extending to the present day, to prevent him from comprehending his rights and other matters concerning litigation.
Plaintiff‘s affidavit stated that he requested that attorneys be retained on his behalf to pursue “legal rights [I may have] against” defendants, but that he was unable to consult with the attorneys
Defendants emphasize that the affidavits of plaintiff and his attorney establish that plaintiff was able to comprehend his legal rights by retaining several attorneys to prosecute his New York and New Jersey lawsuits. In Davidson v Baker-Vander Veen Construction Co, 35 Mich App 293; 192 NW2d 312 (1971), lv den 386 Mich 756 (1971), however, this Court ruled that the mere fact of conferring with an attorney is not conclusive evidence of mental competence for purposes of the tolling provisions of
Defendants suggest that plaintiff‘s averment that “until I met personally and retained [plaintiff‘s present attorney] to represent me, I had no input into my case and was unable to monitor the conduct of my attorneys” constitutes an admission that he was not insane after he met with his current counsel, more than one year before filing
We must next consider whether, as a matter of law, plaintiff‘s claim was time-barred under New York law and thus should have been dismissed. Cliffs Forest Products, supra. Resolution of this issue depends in part on whether, when Michigan “borrows” the statute of limitations of another state pursuant to
The usual approach taken to tolling provisions under borrowing statutes such as Michigan‘s is that the forum‘s tolling provisions apply to the forum‘s statute of limitations and the other state‘s tolling provisions apply to its statute. See Sedler, Choice of Law in Michigan—A Time to Go Modern, 24 Wayne LR 829, 846 (1978). Thus, in
[C]ourts should first apply the applicable foreign statute of limitations, including its tolling provisions, and then apply the applicable forum statute of limitations, including its tolling provisions. After these determinations are made, if either bars the claim, then that statute of limitations is applied and the case is dismissed; if neither bars the claim, then the action is maintainable. This interpretation follows from the fact that the “borrowing” statute provides that the applicable period of limitations is the one which bars the claim, and not necessarily the one with the shorter time period. Furthermore, it provides that the periods of limitations to be considered are those prescribed by the law of each state. The law of a state prescribing a period of limitations necessarily incorporates the applicable tolling provisions present under that state‘s law. As a result, the tolling provisions of each state must be considered in determining whether that state‘s period of limitations would bar the claim and thereby cause a dismissal of the action under the provisions of the “borrowing” statute. [Emphasis in original.]
See also Graham v Ferguson, 593 F2d 754 (CA 6, 1979).
We agree with the above reasoning and conclude that the tolling provisions of each state—including their respective definitions of insanity—must be considered in this case. We find misplaced plaintiff‘s reliance on Belden, supra, and DeVito, supra. Belden was decided before Michigan enacted a borrowing statute, and is thus not controlling. In DeVito, this Court allowed a Michigan resident to
Having concluded that the New York tolling provision must be considered in deciding whether that state‘s statute of limitations would bar plaintiff‘s claim, we now turn to New York‘s definition of insanity for purposes of its tolling provision.
The New York tolling statute itself provides no definition of insane persons. New York courts seeking to define the term have noted, however, that the legislative history of the provision indicates an intent that the toll for insanity be narrowly interpreted. McCarthy v Volkswagen of America, 55 NY2d 543; 450 NYS2d 457; 435 NE2d 1072 (1980). The prevailing definition appears to be “those individuals who are unable to protect their legal rights because of an over-all inability to function in society.” McCarthy, supra, 55 NY2d 548. This definition has been held not to include a person suffering post-traumatic neurosis, a condition manifesting itself in repression of the accident causing his injuries and therefore making it difficult to cooperate with counsel or understand his rights regarding the accident. Id. Nor does it include an inability to protect one‘s rights due to loss of physical function. Eisenbach v Metropolitan Transportation Authority, 97 AD2d 808; 468 NYS2d 676 (1983), aff‘d 62 NY2d 973; 468 NE2d 293 (1984). Persons suffering from diagnosed schizophrenia are not entitled to an insanity tolling. Libertelli v Hoffman-La Roche, Inc, 565 F Supp 234 (SD NY, 1983); Graboi v Kibel, 432 F Supp 572 (SD NY, 1977). Dismissal as a matter of law was upheld in Dumas v The Agency for Child Development—New York City Head State, 569 F Supp 831 (SD NY, 1983), where the plaintiff‘s alleged mental disability, which manifested itself in severe depression, suicidal tendencies, and
Moreover, unlike Michigan, New York courts have found commencement of legal actions on behalf of a plaintiff indicative of sanity. See, e.g., McCarthy, supra, 435 NE2d 1073. Thus, in Lacks v Marcus, 68 AD2d 815; 414 NYS2d 139, 140 (1979), the court stated:
In interpreting the meaning of the word “insane” as used in CPLR § 108, we should be “guided by the manifest purpose of the tolling statutes, to wit, ‘to relieve from the strict time restrictions any person who actually lacks the ability and capacity, due to mental affliction, to pursue his lawful rights.[“] On these papers, we are unable to see any evidence that plaintiff was “insane” within the meaning of the statute. Whatever disability plaintiff had was surely not a disability to pursue her lawful rights or to sue. She has been engaged in lawsuits arising out of this and related matters continuously from before 1970 until today.
In the instant case, we conclude that no factual question existed under New York law as to plaintiff‘s sanity. The Blase affidavit, even when read in a light most favorable to plaintiff, clearly characterizes plaintiff‘s condition as one of “mental illness.” As noted by the McCarthy court, however, the New York legislature refused to broaden the scope of New York‘s insanity toll to mental illness. 55 NY2d 548. The entire import of the affidavit is that as a result of the injuries plaintiff sustained, he has become depressed, withdrawn, and suicidal. Even assuming that this describes a condition more severe than “post-traumatic neurosis,” these manifestations have been rejected by New York
Reversed and remanded for dismissal.
D. F. WALSH, J., concurred.
SHEPHERD, J. (concurring). I agree that this case ought to be dismissed in Michigan but not for the reasons stated by my colleagues. The majority opinion concludes that as a matter of law plaintiff was not insane within the meaning of the New York tolling provision and that therefore under New York law plaintiff‘s claim was time-barred. The action is then dismissed in Michigan under Michigan‘s “borrowing statute,”
I note that in a hearing that took place in New Jersey on October 25, 1985, counsel for one of the defendants argued that this case belongs in Michigan. Counsel for plaintiff noted that the defendant had argued in Michigan that the case more appropriately belongs in New Jersey. Plaintiff then repeatedly offered to dismiss the case in Michigan if the New Jersey courts accepted it. On January 10, 1986, the New Jersey court concluded that New Jersey has jurisdiction and that there is no basis for dismissing the action under the statute of limitations in effect in New Jersey. The New Jersey judge said that she would defer to Michigan and that appropriate action would be taken in New Jersey after the Michigan court decided the matters pending in Michigan. Now that this has been accomplished, presumably the case will go before the New Jersey judge who will see that the opinion in this case simply dismisses the action based upon a Michigan interpretation of New