Defendants appeal by leave granted the trial court’s order ruling that the appointment of a personal representative for the estate оf Harvey Gardner should relate back to the filing of the complaint. We reverse and remand for proceedings consistent with this opinion.
The facts of this case are essentially undisputed. On March 9, 1994, a complaint was filed alleging that defendants negligently failed to diagnose the prostate cancer of the named plaintiff, Harvey Gardner. On March 10, 1994, an amended complaint was filed, which added a claim for loss of consortium on behalf of plaintiff Carol Gardner. However, Harvey Gardner had died on March 6, 1994, three days before the initial compliant had been filed. Carol Gardner did not notify her attorneys that her husband had died until June 1994. Thе medical malpractice tort reform act, * 1 which capped the noneconomic damages recoverable in medical malpractice actions, became effective on April 1, 1994.
On September 6, 1994, defendants filed a motion to dismiss, arguing that no one had standing to file the suit because a рersonal representative had not been appointed. On October 18, 1994, plaintiff Eric Smith was appointed as personal representative of the estate of Harvey Gardner. On October 21, 1994, the trial court dismissed the claim, ruling that no one had standing to file the lawsuit.
On November 3, 1994, Smith filed a motion for reconsideratiоn in which he argued that the appointment of the personal representative should relate back to the date of the filing of the original complаint. The trial court granted the motion and reinstated the lawsuit. On June 30, 1995, this Court entered an order granting defendants leave to appeal the trial court’s ruling and staying рroceedings in the trial court pending the outcome.
Defendants argue that the trial court erred in allowing the appointment of a personal reрresentative to relate back to the filing of the complaint. This is a question of law that we review de novo on appeal.
McCaw v T & L Operations, Inc,
MCL 600.2921; MSA 27A.2921 provides, in pertinent part:
All actions and claims survive death. Actions on claims for injuries which result in death shall not be prosecuted after the death of the injured person except pursuant to the next section.
The following section provides:
Every action under this section shall be brought by, and in the name of, the personal representative of the estate of thedeceased person. [MCL 600.2922(2); MSA 27A.2922(2).[
The requirement of this sectiоn that a wrongful death action be brought by the personal representative of
the deceased is mandatory.
Maiuri v Sinacola Construction Co,
It is undisputed that Harvey Gardner died three days before the complaint in this action was filed. Accordingly, this action was not filed in conformity with MCL 600.2922(2); MSA 27A.2922(2). However, plaintiff Smith argues, and the trial court agreed, that his apрointment as personal representative should relate back to the filing of the complaint.
The source of the relation-back doctrine is MCR 2.118(D), which рrovides:
Except to demand a trial by jury under MCR 2.508, an amendment relates back to the date of the original pleading if the claim or defense asserted in the аmended pleading arose out of the conduct, transaction, or occurrence set forth, or attempted to be set forth, in the original pleading.
Interpretation of a court rule is subject to the same basic principles that govern statutory interpretation. A court rule should be construed in accоrdance with the ordinary and approved usage of the language in light of the purpose to be accomplished by its operation.
Lockhart v Thirty-Sixth Dist Court Judge,
The doctrine of relation back was invented by the courts to associate the amended matter with the original pleading so that it would not be barred by a statute of limitation.
LaBar v Cooper,
In
Osner v Boughner,
However, in
Fisher v Volkswagenwerk Aktiengesellschaft,
In the instant case, the issue presented is not whether either of the plaintiffs had a good-faith, reasonable belief of being the personal representative of Harvey Gardner’s estate at the time the lawsuit was filed. Smith had no interest in the case until his appointment as personal representative some seven months after Gardner’s death. Carol Gardner admitted that she had neither been the personal representative of her husband’s estate nor thought that she had that position. Thus, the question presented is whether the
In
Maurer, supra,
the plaintiff filed a complaint on October 31, 1983. On July 15, 1985, the defendants filed a motion for summary disposition claiming that they were immune from tort liability pursuant to
Ross v Consumers Power Co (On Rehearing),
[A]s one commentator has explained, the chief purpose of the rule allowing the relation back of amendments is to determine whether the statute of limitations has been satisfied. 1 Martin, Dean & Webster, Michigan Court Rules Practice, pp 474-481. We confess a great deal of trepidation in response to defendants’ invitation to extend this rule from avoidance of the statutes of limitation to avoidance of stare decisis. [Id. at 47-48.]
We are similarly apprehensive of extending the rule to the avoidance of legislativе intent. The issue in the present case is not whether plaintiffs’ claim is barred by the expiration of the statutory period of limitation; rather, the issue is whether the prоvisions of the medical malpractice tort reform act will apply. The purpose behind the relation-back doctrine is simply not implicated herе. See LaBar, supra. Accordingly, we conclude that the trial court erred in allowing the appointment of plaintiff Smith as personal representative to relate back to the filing of the initial complaint.
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
Notes