SAM v. BALARDO
Docket No. 30138
Michigan Court of Appeals
August 7, 1978
85 Mich App 20
Submitted January 18, 1978, at Detroit. Leave to appeal applied for.
The аpplicable statute of limitations in actions alleging legal malpractice is two years.
Affirmed.
M. F. Cavanagh, J., dissents. He would hold that the “malpractice” statute of limitations applies only to medical malpractice and that the general three-year statute limiting “actions to recover damages for injuries to persons and proрerty” applies to actions for legal malpractice.
OPINION OF THE COURT
1. LIMITATION OF ACTIONS—STATUTES—MALPRACTICE—LEGAL MALPRACTICE.
The statute limiting actions “charging malpractice” to two years applies to legal as well as medical malpractice (
DISSENT BY M. F. CAVANAGH, J.
2. LIMITATION OF ACTIONS—STATUTES—MALPRACTICE—MEDICAL MALPRACTICE—LEGAL MALPRACTICE.
The statute limiting actions “charging malpractice” to two years
REFERENCES FOR POINTS IN HEADNOTES
[1, 2] 7 Am Jur 2d, Attorneys at Law §§ 184, 185.
61 Am Jur 2d, Physicians and Surgeons § 181.
What statute of limitations governs damage action against attorney for negligence in performance of professional services. 49 ALR2d 1216.
Statute of limitations appliсable to malpractice action against physician, surgeon, dentist, or similar practitioner. 80 ALR2d 320.
Myron F. Poe, for plaintiff.
M. J. Balardo, in propria persona.
Before: T. M. BURNS, P. J., and M. F. CAVANAGH and D. C. RILEY, JJ.
D. C. RILEY, J. This matter involves the applicable statute of limitations for an action alleging legal malpractice. Plaintiff appeals from the jury‘s verdict of no cause of action, arguing that the trial court erred in instructing the jury on а two-year statute of limitations.
The dissent quite comprehensively states the legal rationale in favor of a holding that the two-year limit of
The dissent, however, somewhat abruptly changes direction and concludes, based upon a Committee Comment to the Revised Judicature Act and Judge (now Justice) LEVIN‘S dissent in this Court‘s Kambas1 decision, that the two-year statute of limitations applies only to medical malprac-
We cannot agree with this conclusion for a number of reasons. First, we find it relevant (although Judge LEVIN would disagree) that the term “malpractice of physicians, surgeons or dentists” in 1915 CL 12323(3), was altered in
Second, the case law, as pointed out by the dissent, uniformly employs the two-year stаtute of limitations for legal malpractice.
Third, as Judge LEVIN pointed out in his Kambas dissent, states such as New York and Ohio, which have laws similar to Michigan‘s in that the term “malpractice” is used but never specifically defined, include both legal and medical malpractice under their “malpractice” statutes of limitations. Kambas v St Joseph‘s Mercy Hospital of Detroit, 33 Mich App 127, 138-139; 189 NW2d 879 (1971).
Finally, and most importantly, we do not agree with the dissent that the Committee Comment is an “explicit” statement of legislative intent. The Comment merely states that “[e]xisting time periods have been used“. There are two possible interpretations of this phrase. The dissent asserts that the Comment means that every cause of action existing prior to the Revised Judicature Act retains the same applicable statute of limitations subsequent to the new law. We read the Comment to refer solely to the fact that, for example, the “malpractice” statutory period remains at two years. We do not find that the Comment precludes a concurrent finding that the Legislature expanded the set of causes of action that constitute “malpracticе“.
Affirmed. No costs.
T. M. BURNS, P. J., concurred.
M. F. CAVANAGH, J. (dissenting). Plaintiff sued defendant fоr legal malpractice. The jury returned a verdict of no cause of action, and plaintiff appeals, assigning error in the court‘s instructions.
Plaintiff contends that the court erred by instructing the jury to apply a two-year statute of limitations to plaintiff‘s claim. Plaintiff asserts that the proper period of limitations is three years. The statutes in question аre these:
“Sec. 5805. No person may bring or maintain any action to recover damages for injuries to persons or property unless, after the claim first accrued to himself
or to someone through whom he claims, he commences the action within the periods of time prescribed by this section. * * *
“(3) The period of limitations is 2 years for aсtions charging malpractice.
* * *
“(7) The period of limitations is 3 years for all other actions to recover damages for injuries to persons and property.”
MCLA 600.5805 ;MSA 27A.5805 .
Defendant argues that the two-year statute “for actions charging malpractice” is clearly appropriate for an action based on legal malpracticе.
At least three decisions from this Court have assumed that the limitations period on a claim for legal malpractice is two years. See Biberstine v Woodworth, 81 Mich App 705; 265 NW2d 797 (1978), Berry v Zisman, 70 Mich App 376, 378; 245 NW2d 758, 759 (1976), Corley v Logan, 35 Mich App 199, 202; 192 NW2d 319, 321 (1971). One case may be read as so holding. Basic Food Industries, Inc v Travis, Warren, Nayer & Burgoyne, 60 Mich App 492, 495; 231 NW2d 466, 467 (1975).
The assumption is plausible, in light of the statute‘s plain wording.1 Moreover, construing the statute to hold a meaning more limited than its language would seem to run afoul of the rule that,
“A plain and unambiguous statute is to be aрplied, and not interpreted, since such a statute speaks for
itself, and any attempt to make it clearer is a vain labor and tends only to obscurity.” City of Lansing v Twp of Lansing, 356 Mich 641, 649; 97 NW2d 804, 809 (1959). (Citation omitted.)
The legislative history of malpractice actions also lends some support to the conclusion that the two-year limitations period applies.
The common law permitted actions for legal malpractice2 as well as for medical malpractice.3 The Legislature very early provided that these actions could be initiated by civil arrest on the writ of capias ad respondendum.4 The statute of limitations on these actions was six years.5
These limitation periods were modified by the Judicature Act of 1915. That act provided a three-year period for “[a]ctions to recover damages for injuries to person or property“. 1915 CL 12323(2). A shorter, two-year period was provided for malpractice, but it was limited to thе “malpractice of physicians, surgeons or dentists“. 1915 CL 12323(3).
The act, and parallel court rule revisions, also rewrote the procedures for initiation of malpractice suits. The writ of capias ad respondendum was abolished,7 all suits were to be commenced by filing a complaint,8 and summons succeeded capias as the process to be served on the defendant.9 The statute authorizing use of capias for initiation of a malpractice suit was repealed with abolition of the writ, leaving the common law as the exclusive source for rights of action for legal and medical mаlpractice.10
Viewing these several revisions as an interrelated whole, it might reasonably be inferred that the abolition of the special procedures for malpractice suits, and the apparent broadening of the medical malpractice statute of limitations, were parts of a general plan for simplification аnd consolidation of the laws relating to the malpractice of both professions. This interpretation is strengthened by the simultaneous revision of the statute authorizing malpractice actions against charlatans, which was extended to include actions “against any person professing or holding himself
However, plaintiff contends that this construсtion is untenable in light of the Supreme Court‘s decision in Kambas v St Joseph‘s Mercy Hospital of Detroit, 389 Mich 249; 205 NW2d 431 (1973). In Kambas the Supreme Court held that the malpractice statute of limitations did not apply to an action charging negligence of registered nurses in the performance of their duties. The Court followed two related lines of analysis to this conclusion.
The Court first rejected the argument that § 2912 of the Revisеd Judicature Act12 had created a malpractice action against nurses. Noting that nurses could not previously be sued for malpractice, the Court concluded that there was no present authority for such a suit, and hence the malpractice statute of limitations was inapplicable.
The Court‘s analysis then focused on the malpractice statute of limitations itself. Quoting extensively from a decision by the Ohio Supreme Court which had construed the similar Ohio statute,13 the Court found no indication of legislative intent to alter the common law definition of malpractice, and therefore presumed that the Legislature had intended the statute to protect only those groups traditionally associated with malpractice. The Court found that nurses were not such a group. The Court then stated that a professional such as a physician is required to exercise his independent judgment on such matters as diagno-
“The defendant‘s suggestion that the action of the Legislature in enacting §§ 2912 and 5838, using the words ‘a member of a state licensеd profession,’ indicated an intent to extend the benefit of the short malpractice limitation of § 5805 to additional professions other than those originally encompassed by the Judicature Act of 1915 is unfounded.” 389 Mich, at 254; 205 NW2d, at 434.14
Plaintiff cites this language as establishing that legal malpractice, which was not within the purview of the 1915 malpractice statute, is likewise outsidе its successor. There are, however, several reasons to question plaintiff‘s reading of Kambas.
First, the issue before the Court in Kambas was whether the statute applied to nurses, not whether it applied to attorneys. Therefore the quoted language cannot be taken as a holding that attorneys are without the statute. Although the Court did address itself to legislative history and the purposе behind the Judicature Act‘s revisions, it might well have used less sweeping language had it considered the history of legal malpractice actions and their place in the revised statutory scheme.
Finally, Ohio, whose approach to the Kambas issue our Supreme Court found so “persuasively appropriate“,15 applies its shоrt malpractice statute to actions against attorneys. Galloway v Hood, 69 Ohio App 278; 43 NE2d 631 (1941).
These points give us serious pause to doubt plaintiff‘s interpretation of Kambas. However, plaintiff buttresses his argument by reference to Judge (now Justice) LEVIN‘S dissenting opinion in this Court‘s decision of the Kambas case. Kambas v St Joseph‘s Mercy Hospital of Detroit, 33 Mich App 127; 189 NW2d 879 (1971). In that case the majority of this Court held that the two-year statute did apply to an action charging nеgligence of a registered nurse in the performance of her duties. On the basis of a Committee Comment by the limitations statute‘s draftsmen, the dissent made an argument most relevant to the instant case:
“The Revised Judicature Act was drafted by the Joint Committee on Michigan Procedural Revision appointed pursuant to resolutions of the Supreme Court, thе Legislature, and the State Bar of Michigan. The committee‘s final report was transmitted on November 15, 1959; the committee note for § 5805 comments as follows:
” ‘Section [5805] is a compilation of the limitations of
the general tort remedies. Existing time periods have been used.’ (Emphasis supplied.)4
“The ‘existing time period’ (under the Judicature Act of 1915) for malpractice actions against persons other than physicians, surgeons, or dentists was three years. We should therefore ascribe tо the word ‘malpractice,’ as used in RJA § 5805, a meaning consistent with the representation of the draftsmen to the Supreme Court, the Legislature, and the profession, namely, that ‘malpractice,’ as used in § 5805, means actions charging malpractice against physicians, surgeons, or dentists.” 33 Mich App, at 134; 189 NW2d, at 882.
If it was truly the Legislature‘s intent to use existing time periods, and we have hеre an explicit statement that it was, then it must follow that legal malpractice is not encompassed by the two-year malpractice statute of limitations. Though I can well understand how the trial court in the case at bar came to a contrary conclusion, I am of the opinion that this was error. Accordingly, I vote to reverse the judgmеnt of the lower court and remand this case for retrial. I will consider the majority‘s reasons for disagreement in their order of presentation.
The majority would find it relevant that the term “malpractice of physicians, surgeons or dentists” in the Judicature Act of 1915 became simply “malpractice” in the Revised Judicature Act. Presumably its relevance is support for an inference of legislative intent. The inference strikes me as weak, in light of the direct statement to the contrary in the Committee Comment to the Revised Act.
As the majority notes, the cases have “uniformly employ[ed]” the two-year statute. The majority
Further, that Ohio and New York include legal malpractice within their “malpractice” statutes of limitation does not aid us in giving effect to the differing intent of the Michigan Legislature.
Finаlly, though concededly “reasonably supported“, the majority finds the result I would reach “inconsistent with plain common sense“, and productive of “confusion, uncertainty, and a sense of absurdity“. The majority finds it “untenable” that a veteran cause of action like legal malpractice should not enjoy the same early retirement as newcomers like nurses’ malpractice. The Legislature, however, when it drafted the Judicature Act of 1915, did not find it untenable to create a statute of limitations for medical malpractice which was shorter than that for legal malpractice, and the Revised Act‘s draftsmen tell us that nothing has changed. Apparently “common sense“, in the view of our Legislature, did not compel a reduction in attorneys’ liability for their mistakes. That we might find a different view preferable creates no license in us to thwart the Legislature‘s determination.
Notes
“Sec. 13. Personal actions arising uрon contract, express or implied, may be commenced by capias ad respondendum only to recover damages * * * for misconduct or neglect in any professional * * * employment * * *.”
Capias ad respondendum was one of two original writs then available, the other being summons. 1857 CL 4112. A writ of capias was served by the sheriff‘s arresting the defendant. 1857 CL 4118. A defendant so arrested was to be held until he executed a bond with sufficiеnt sureties. 1857 CL 4118, 4123. Capias was to issue only where plaintiff made and attached to the writ an affidavit that he had a claim for damages in excess of one hundred dollars on the cause of action stated in the writ. 1857 CL 4119. Where the affidavit was found insufficient, the plaintiff was held entitled to proceed on the summons clause of the writ. H J Cheney Co v Allgeo, 165 Mich 384; 130 NW 593 (1911).
Reprinted as an annotation to“A claim based on the malpractice of a person who is, or holds himself out to be, a member of a state licensed profession accrues at the time that person discontinues treating or otherwise serving the plaintiff in a professional or pseudo-professional capacity as to the matters out of which the claim for malpractice arose.”