307 N.W.2d 643 | Mich. Ct. App. | 1981
O'KEEFE
v.
CLARK EQUIPMENT COMPANY.
Michigan Court of Appeals.
Anderson & Radabaugh, for plaintiff.
Martin, Bacon & Martin, P.C., for defendant.
Before: N.J. KAUFMAN, P.J., and M.J. KELLY and CYNAR, JJ.
PER CURIAM.
Plaintiff-appellant, Terrance O'Keefe (hereinafter "O'Keefe") appeals from a trial court's grant of accelerated judgment, GCR 1963, 116, in favor of defendant-appellee, Clark Equipment Company, based upon the running of the statute of limitations.
On July 19, 1976, O'Keefe's hand was injured when a defective fork lift dropped a piece of machinery on it. On June 22, 1979, he commenced this action against John Doe Corporation claiming that the defective fork lift, manufactured by that *25 corporation, caused his injury. On July 10, 1979, plaintiff had the Record Copy Service Corporation perform a record copy deposition on his employer to discover who manufactured the fork lift. See GCR 1963, 302.2.[1] After receipt of the material requested by the deposition, it was discovered by plaintiff that the Clark Equipment Company manufactured the fork lift. Plaintiff's attorney received a copy of the deposition on August 13, 1979. On October 17, 1979, the plaintiff filed an amended complaint naming Clark Equipment Company as the defendant. On December 10, 1979, Clark moved for accelerated judgment which the trial court granted based upon the running of the statute of limitations. The plaintiff appeals the grant of accelerated judgment.
GCR 1963, 118.4 allows a plaintiff to amend his complaint and governs whether an amendment relates back to the date of the original complaint. In Charpentier v Young, 83 Mich. App. 145, 149-150; 268 NW2d 322 (1978), rev'd on other grounds 403 Mich. 851 (1978), this Court addressed the issue of whether a plaintiff could amend his complaint to add a party after the statute of limitations had run. This Court stated:
"We, therefore, conclude that whether a party seeking to add parties to the litigation has complied with the court rules so as to entitle him to suspend the running of an applicable statute of limitations in favor of an added party, is for determination in the first instance by the trial court. An added party may obtain the trial court's review of the circumstances leading up to the filing of the amended complaint by filing a *26 motion for accelerated judgment based upon the statute of limitations. The trial court may then review de novo the procedural steps taken by the amending party to assure that dilatory tactics have not unjustly deprived the added party of his legitimate statute of limitations defense. It is then within the discretion of the trial court to grant or deny the motion based upon his evaluation of the circumstances in each case."
This Court in Charpentier stated that a plaintiff may avoid a defense based upon the statute of limitations only where he can demonstrate diligence in discovery and compliance with procedural rules. Id., 151. The plaintiff in the instant case did not use due diligence, and this Court affirms the trial court's grant of accelerated judgment.
In this case, the applicable statute of limitations was three years. MCL 600.5805(8); MSA 27A.5805(8). Plaintiff did not commence his action until a month before the statute was to run. While plaintiff did begin discovery immediately, he did not press for the material from the record copy deposition which contained the information needed to join the real manufacturer. Rather, plaintiff waited until August 13, 1979, for the information and did not file an amended complaint until October 17, 1979. Furthermore, the plaintiff did not comply with GCR 1963, 118 when he amended his complaint, having filed no motion to so amend, as mandated by GCR 1963, 118.1. Therefore, the trial court did not err in granting defendant's motion for accelerated judgment.
Plaintiff argues that defendant is a necessary party and can therefore be joined under GCR 1963, 205 even though the statute of limitations has run. The statute of limitations runs until a plaintiff amends his complaint to join the party. Forest v Parmalee (On Rehearing), 60 Mich. App. 401, 406; *27 231 NW2d 378 (1975), aff'd on other grounds 402 Mich. 348; 262 NW2d 653 (1978). However, Parmalee also establishes three exceptions to the rule, one of which allows the joinder of a necessary party after the statute of limitations has expired. Id. Plaintiff argues that defendant is a necessary party because it is the only party from which plaintiff can recover.
In this case, plaintiff filed suit against this defendant after the statute of limitations had run. Even if it is true that Clark Equipment Company is the only defendant from which plaintiff can recover, this does not render the statute of limitations inapplicable. If plaintiff's argument were to be accepted, any plaintiff who filed suit against a fictitious defendant prior to the running of the statute of limitations could circumvent the statute by claiming that the defendant to be joined was a necessary party. This would prevent the operation of the statute of limitations even though the plaintiff was not diligent in bringing his suit.
We therefore conclude that the trial court did not err in granting accelerated judgment and affirm. Costs to defendant.
NOTES
[1] The Notice of Taking Record Copy Deposition instructed plaintiff's employer, pursuant to GCR 1963, 302, to produce certain documents concerning the injury of plaintiff, Terrance O'Keefe. These records were copied and forwarded to plaintiff's attorney, providing him with the name of the true defendant in this action.
