310 N.W.2d 336 | Mich. Ct. App. | 1981
MOORE
v.
FLOWER.
Michigan Court of Appeals.
Posner, Posner & Posner, for plaintiffs.
*215 George W. Crockett, Jr., Acting Corporation Counsel, and Dennis Barnett, Assistant Corporation Counsel, for City of Detroit.
Before: BASHARA, P.J., and N.J. KAUFMAN and J.L. BANKS,[*] JJ.
J.L. BANKS, J.
Plaintiffs were injured in a traffic accident at an intersection in the City of Detroit on February 16, 1977. A complaint was filed in the Wayne County Circuit Court alleging negligence on the part of Debra Flower, driver of the automobile which struck the plaintiffs' car, and Sonja Williams, owner of the same car. Defendants' answer averred the affirmative defense that there was no sign or signal at the intersection where the accident occurred which required defendant Flower to stop.
On December 15, 1978, attorneys for both plaintiffs and defendants stipulated to add the City of Detroit as a party defendant pursuant to GCR 1963, 206.1. The parties apparently sought indemnification for defendants Flower and Williams and the addition of a principal tortfeasor defendant for failure to maintain traffic signs at a controlled intersection. The trial court signed an order adding the City of Detroit as a defendant on December 15, 1978. Plaintiffs filed a second amended complaint on June 11, 1979, adding the City of Detroit as a defendant. On July 3, 1979, the city moved for accelerated judgment pursuant to GCR 1963, 116.1(5), alleging that the two-year statute of limitations in MCL 691.1411(2); MSA 3.996(111)(2) had run. The trial court granted the defendant city's motion.
At issue is whether the order adding the defendant *216 City of Detroit as a party defendant, dated December 15, 1978, tolled the statute of limitations.
This Court has faced nearly identical problems in several recent cases. In Charpentier v Young, 83 Mich App 145; 268 NW2d 322 (1978), rev'd 403 Mich 851 (1978), the plaintiffs were seriously injured in an automobile accident when a car driven by defendant Young, being chased by the police, struck their automobile. Plaintiffs sought to add as defendants owners of several taverns where defendant Young had been drinking prior to the accident. The trial court granted the tavern owners' motion for accelerated judgment because plaintiffs failed to commence their dramshop action within two years after they were injured. The Court of Appeals affirmed, rejecting plaintiffs' argument that the statute of limitations was tolled during the interim between filing and granting their motion to amend their complaint to add the tavern owners as defendants. Plaintiffs argued that by adding this 21-day period, from March 10, 1976, to March 31, 1976, to the period of limitations for dramshop actions, plaintiffs properly had filed their amended complaint within the period of limitations, which did not bar plaintiffs' claim until August 23, 1976.
The Supreme Court, by order, held:
"the Court of Appeals is reversed, the trial court's accelerated judgments in favor of defendants-appellees are set aside and the case is remanded to the trial court for further proceedings. The statute of limitations was tolled for 21 days, from March 10 to March 31, 1976, the time during which the motion to amend complaint and add parties defendant was pending, plaintiffs having demonstrated due diligence by seeking a decision on their motion within three weeks." 403 Mich 851.
*217 In a similar case, Amer v Clarence A Durbin Associates, 87 Mich App 62; 273 NW2d 588 (1978), the Court of Appeals followed the rationale of Charpentier, supra, leaving the matter of determining whether the plaintiff had exercised diligence in attempting to join the defendants to the discretion of the trial court. See also Cobb v Mid-Continent Telephone Service Corp, 90 Mich App 349, 354-355; 282 NW2d 317 (1979).
We see, as did Judge RILEY in her concurrence in Charpentier, supra, a serious problem with permitting the trial court to extend a defendant's liability depending on whether the trial court, in its discretion, finds that a plaintiff exercised diligence in attempting to join that defendant. Application of statutes of limitations is a counting procedure with a primary purpose being to give the parties and the courts a specific time at which the statutory bar goes into effect. We find that the Supreme Court order in Charpentier, supra, applies such a rule and hold that, when a plaintiff moves to add a party defendant or to amend a complaint to do so, the statute of limitations is tolled during the time in which the motion to add parties or amend the complaint is pending in the trial court.
Applying that law to this case, we find that the statute of limitations was tolled for a single day. The parties stipulated to add the defendant City of Detroit on December 15, 1978, and the trial court entered an order adding the City of Detroit as a defendant on the same day. Thus, the statute of limitations ran on February 17, 1979, two years and one day after the accident. Plaintiffs' failure to file an amended complaint until June 11, 1979, bars any action against the City of Detroit.
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
