*1 WESTINGHOUSE, INC v REITERMAN 19, 1980, February at Detroit. Decided No. 45897. Submitted Docket 3, June 1981. Reiterman, A. of the of Thomas estate as administratrix Linda Westinghouse, deceased, against Reiterman, brought action resulting Inc., wrongful a of from breach death for subsequently component. product of a the manufacture Company complaint L. as a to add the J. Hudson her amended Later, again product. as seller defendant Company complaint Electric add the General her amended component of the as the manufacturer a defendant as summary for and/or product. moved General Electric acceler- period of judgment limitation on the basis that ated Court, Freder- wrongful Circuit actions had run. Oakland death J., Ziem, Electric was the motion. General denied ick C. Following hearing, appeal. the Court of granted leave to ruling unpublished per in an Appeals the trial court’s affirmed (Docket Westinghouse, opinion. Inc No. v curiam 45897, Reiterman 20, [unreported]). General Electric June decided rehearing, petition subsequently petitioned for was granted. Held: plaintiffs of decedent The death established sought. action thus accrued The cause of nature of the plaintiff knew that the date of death. At that time on defective, upon her to product it was was incumbent period within the of limitation for discover [1] [2, [4, [6] [3] [7] [5] 63 When cause of Running 3] 5, 63 Am Jur seller manufacturer allegedly 7] 63 Am Jur Am Jur Am Jur Am Jur Am Jur Am of statute causing personal injury 2d, 2d, 2d, 2d, 2d, Jur References 2d, Death Death Products Limitation Products as affected action 2d, Products causing of Limitation limitations §§ §§ arises 35, 36, 40-46. Liability 222. Liability Liability Actions Points plaintiffs on action of Actions §§ 38. § §§ or death. §§ §§ disease. 91 221, 221-223. Headnotes lack against 4 ALR3d 821. 62. 222. 107, 108,135. of liability knowledge ALR3d 991. manufacturer claim of defect against identity bring any actions defendants and to actions them. The was tolled discovery. pending such Defendant General Electric was added *2 by complaint period amended after the of limitation had run. prior Appeals The Court of is order of the vacated and the case entry judgment of is remanded for accelerated for General Electric. Vacated, reversed, and remanded. J., plaintiff Burns, T. M. dissented. would He hold that pleaded
properly warranty a cause of action breach of notwithstanding brought wrong- the that action was the under ful act. Thus her claim death General Electric did not begin to run until she discovered it was the manufacturer component product. of the the of would He affirm the denial of summary/accelerated judgment. General Electric’s motion for op op Wrongful — — 1. Limitation Actions Death Statutes. period The of of actions for is three (MCL years 600.5805[8]; from the death of the decedent MSA 27A.5805[8]). Liability — — 2. Products Quality Actions Warranties of or — Fitness Statutes. damages A claim for based on a of a of breach or fitness accrues at the time breach the is discovered or (MCL reasonably 600.5833; should be discovered MSA 27A.5833). Liability — — Wrongful 3. Products Accrual of Claims Death. products liability The rule that in claims cases accrue when a plaintiff discovers or should have discovered a Warranty apply breach of does not to actions for death. Tolling — — — 4. Limitation of Actions Torts of Accrual Claims of Period of Limitation. periods The of limitation of to actions recover injuries persons property to pending discovery are tolled not identity alleged of an tortfeasor where all elements other exist; necessary plaintiff of a cause of action it is not a action, the know details of the evidence of to establish his cause enough exists, it is that he knows that thereafter the cause and it his own fault where he not avail of those does himself provided claim; by prosecute preserve means law the it is abeyance prospec- necessary until to hold the action help to determine exis- professional plaintiff obtains tive of action. cause tence Liability Wrongful — — of Actions Products 5. Limitation — Claims. Death Accrual of product may is manifested as have been defective The a fact that instrumentality of law where the is the of matter begins thus, run death; for limitation of actions death, it is incumbent on the dece- then date investigate product to liabil- determine dent’s survivors ity. Damages — — Forms of 6. Limitation of Actions Nature Actions. damage sought rather than the form action The nature of proceeded has which a determinative under action applica- periods of actions is of several for limitation ble. *3 Liability Wrongful — — Actions Products 7. Limitation — Death Statutes. pleaded properly breach of A cause of action for fitness accrues at the time the breach was discovered discovered, though have been even should instrumentality was an of death and the action act, wrongful brought under the death and in which by statutory bring to the action not be limited should (MCL provisions wrongful for death actions 27A.5833). 600.5833; 600.580518], MSA 27A.5805[8] Gage, Byington (by Bushnell, Doctoroff, Reizen & Kohl), plaintiff. David D. for Ogne Buchanan, Jinks, P.C., & for defendant Westinghouse, Inc. Cooney, Stanczyk
Plunkett, Rutt, Watters, & (by Stanczyk, Jacobs, Pedersen B. I. Chris- John P. Morganti), Raymond Oldani, tine D. and W. Company. defendant General Electric Westinghouse op P.J., Before: and D. F. and Bashara, Walsh JJ. Bashara, P.J. General Defendant Electric Com- (G.E.) hybrid pany summary/ filed a motion for judgment asserting plaintiff accelerated failed had commence an action it within the three-year statutory limitation for motion, The trial actions. G.E. was court denied granted appeal. 20, leave On June panel ruling 1980, this affirmed the trial court’s unpublished per opinion, curiam Docket No. again by way 45897. The cause is us before of our August rehearing. granting petition 26, 1980, order G.E.’s plaintiff’s 22, 1975,
On June decedent received attempted plug an electrical shock when he dryer electric clothes into an electri- September 24, 1975, cal outlet. On he died as a injuries result of sustained the accident. Plaintiff filed the instant death action May against Westinghouse. 2, 1977, on ary Janu- On plaintiff
25, filed her first amended com- plaint against Westinghouse, alleging a breach of warranty in the manufacture of the electrical cord dryer. on the clothes filed a second complaint, again alleging amended a breach of warranty, against Co., L. the J. Hudson the seller dryer, August of the clothes 1978. October, 1978, In discovered that dryer electrical motor in the clothes was also defective. This motor had been manufactured *4 Company. 14, the General Electric On November complaint, 1978, filed her third amended adding ing alleg- General Electric as a defendant and warranty respect
a of breach to the with manufacturer of the motor.
It is well established that
the statute of limita
App Mich
of
three years
action is
wrongful
in a
tions
600.5805(7); MSA
MCL
decedent’s death.
from the
Armstrong, 20
App
Mich
27A.5805(7),1 Ruhle v
aff'd (1969),
709;
573;
ranty of warranty the is discovered the breach of be discovered.” should the did not claim argues therefore 1978, October, she learned when
accrue until
through
G.E.
alleged
breach
process.
discovery
to the
at
germane
most
issue
bar
The case
Collier,
187; 288
Stoneman v
in Stoneman
had
Plaintiffs’ decedent
asphyxia
monoxide
died as the result of carbon
Corporation
Motors
operating
while
a General
vehicle. A
action was commenced
timely
and installer
of the exhaust
the manufacturer
death, plaintiffs
three
after the
system.
years
Over
party
as a
defen-
attempted to add General Motors
of limita-
dant. Plaintiffs
the statute
claimed
begin
discovery
tions did not
run until
trial
cause of action. The
existence
5805(7)
the residual statute of limitations statute
Section
was
specific
at
time
statute
established
tort actions for which no
construction,
brought. By judicial
held
it had been
action was
this
Ruhle,
supra. Effective Decem
death actions.
5805(8)
three-year
specifically
ber
establish
was added
§
In affirming decision, the trial court’s Richard, v Dyke distinguished 213 where it was held that statute of limitations malpractice medical cases begin did not to run until plaintiff discovered or should have discovered the existence of the claim.
The Court stated:
malpractice
present
special
claims
prob-
"[M]edical
lems since it is
distinguish
sometimes difficult to
symptoms
from
of the condition for which treat-
sought.
ment was
"Here the factors
may
patient’s
obstruct a
malpractice
awareness of a
claim
present.
are not
From
plaintiffs
the outset
were aware that decedent Ollie died
of carbon
poisoning
monoxide
in a General Motors
automobile,
proceeded
and could
have
General
Motors accordingly.
"As set forth in
Co,
Sedlak v Ford Motor
(1975):
App
63;
306, 311;
Co, Inc,
Glass
Fiber
Szlinis Moulded
see,
Also
(1977), appeal
dis-
55; 263 NW2d
missed
Stoneman
arguably
can
the
know that G.E. was one
plaintiff did
months
until
two
of the machine
manufacturers
Stone-
In
it
defendant.
adding
party
as a
before
man,
knew the decedent
immediately
plaintiffs
car.
in a General Motors
died
However,
to be without
find the distinction
we
the date of dece-
knew at
significance. Plaintiff
his
machine
caused
faulty
the
dent’s death
her to
time,
upon
it was incumbent
At that
injury.
various manufac-
discover,
three
the
years,
within
is
mechanisms. There
possible faulty
the
turers of
the statute of
holding
law
of case
plethora
the
discovery of
pending
is not
tolled
limitations
where all
the
alleged
the
tortfeasor
identity
See
the
of action exist.
elements of
cause
other
Inc,
Laboratories,
Thomas v Ferndale
(1980), and the cases cited
718;
Today’s in consumer commonly result systems although components name the bearing one brand several have been manufactured product is that enterprises. judgment Our considered aware of this fact. public generally begins limitations holding that the statute of By death, necessary run on the date of it is not in the discovery hold void the rule established Rather, find as a statute.3 we warranty breach negating the not the effect of must not be construed as This decision provision death has accrual where breach of been claimed. Opinion of the Court
matter of law that product where a is the instru- mentality of death the fact that product may been have defective has been manifested. It is then incumbent upon the survivors investigate to determine liability.
The result
reached
is in
today
agreement with
an analogous line of
addressing
cases
question
which of two
statutes of limitation
Wise,
In Rach v
applicable.
Mich App
731-
732; 208
NW2d 570
the general
rule in
those cases was
stated:
succinctly
choosing which of several statutes of
"[W]hen
limita-
* * *
tions is
nature of
action
particular
to a
case[,]
damages sought,
rather than the form of the
proceeded
has
under is determinative.”
accord,
In
State Mutual Cyclone Ins Co v O & A
Electric Cooperative,
The Court in Rach concluded that the three-year *7 statute of limitations personal cases controlled though even the action was premised an express contract. bar,
In the case at the wrongful death of Mr. establishes the nature of the damages sought. Hence, application accrual results in consistency with the rule cited in Rach.
Our previous decision relied
upon
heavily
two
cases which hold that
medical
two-year
mal-
practice
statute
of limitations
wrongful death actions. Weiss v Bigman, App 487; 270
(1978),
NW2d 5
v Harri-
Olijnyk
and
son
Inc,
Community Hospital,
80
App 366;
Mich
(1977).
Finally,
find that
we
is a
statute
controls where there
specific
more
general
specific
and a
statute
conflict between
controversy. Mayor
germane
to this
are also not
Huron, of Port
City
Port Huron v
Treasurer
v Bernard
(1950),
People
99;
reasonably should have been discovered death, given effect. statutes are dent’s both Appeals opinion dated June The Court entry The matter is remanded for vacated. 1963, 116.1(5), GCR judgment, of accelerated favor of defendant G.E. Costs G.E. J., Walsh,
F.D. concurred. (dissenting). I dis- respectfully in this prior opinion sent and would follow our matter. limi applicable period
Without
question,
three-year
tations
death actions is
600.5805(7);
time
forth in
formerly set
MCL
27A.5805(7).
Armstrong,
Ruhle v
MSA
709;
aff'd
Under 27A.5833:
"In actions for on breach of a war- based ranty or fitness the claim accrues at the time the breach of the is discovered or should be discovered.”
Plaintiff’s suit defendant General Elec- premised upon tric a breach of war- Company Therefore, it ranty of fitness. falls within squarely the statutory language that neither admits of exception wrong- nor on account of the ambiguity ful death statute. particular
Statutes relate matters questions contrary general control over law. of Port Huron v Mayor City Treasurer Port Huron, (1950). Thus, 99; 328 Mich NW2d Bigman, Weiss v instance, in 487; 84 Mich App NW2d this Court held that a com plaint brought act, under but upon allegation was based of medical malpractice, required was to be filed within the pertaining of limitations to medical mal practice 600.5805(4); actions. See MCL MSA Community 27A.5805(4). See also Olijnyk v Harrison Inc, spital, App 366; Ho properly pleaded has a cause of action for breach of warranty. The fact that her decedent had the suffering misfortune of rather than dying severe physical way no affects the valid- ity of her claim for breach of is this warranty. Nor 600.5833; fact of any import under MCL MSA I 27A.5833. dissented in opinion this Court’s Wise, Rach *9 App 698 Burns, do so I (T. J., dissenting), (1973) M. of redraft- the business not in This Court
here. rules to fit our artificial litigant’s pleadings ing a procedure. circuit court’s affirm the and would I dissent Company’s General Electric of defendant denial judgment. motion for accelerated