397 N.W.2d 224
Mich. Ct. App.
1986

Lead Opinion

C. W. Simon, Jr., J.

Plaintiffs appeal from an order granting defendants’ motion for summary disposition pursuant to MCR 2.116(C)(7) on the grounds that plaintiffs’ claim was barred by the expiration of the applicable period of limitation. We affirm.

On November 5, 1981, Alexander Thomas (hereafter plaintiff) was employed by Michigаn Chrome and Chemical Corporation, mixing chemicals manufactured by Pittsburgh Paint and Glass Company *82(and supplied by Allied-Kelite Products Division, Richardson Chemical Company, a division of Richardson Company), E. I. du Pont de Nemours & Company (and supplied by ChemCentral/Detroit Corporation), and Eсclestone Chemical Corporation (also supplied by ChemCentral), in a tank manufactured and supplied by Stainless Products Corporation. When plaintiff mixed these chemicals according to the directions of his employer, an explosive reaction occurred which caused plaintiff to suffer second- and third-degree burns over approximately one-quarter pf his body. According to the complaint, this explosion was caused by defendants’ negligent design, manufacture, and sale of the chemicals and the mixing tank involved and defendants’ breаch of express and implied warranties made to Michigan Chrome and Chemical Corporation and plaintiff.

After several weeks of hospitalization and treatment, plaintiff filed a workers’ compensation claim which was eventually redeemed. During the workers’ compеnsation proceeding, plaintiff’s compensation lawyer did not advise him of the viability of a products liability claim against the manufacturers of the chemicals, and plaintiff did not become aware of this possibility until he met with his present attorney in April or May of 1984. At the time of this meeting, рlaintiff did not know the identities of any of the chemical manufacturers or suppliers. He knew only the names of the chemicals involved.

Seeing no other alternative, plaintiffs proceeded to file a "John Doe” complaint on November 2, 1984. After further investigation, plaintiffs discovered the identity of the chemical manufacturers, and upon receiving permission of the trial court by order, plaintiffs filed an amended complaint on April 30, 1985, naming the defendants. The defen*83dants were all served by May 2, 1985. On May 28, 1985, defendants moved for summary disposition. The lower court held that the period of limitation was not tolled while plaintiffs sought the identity of the alleged tortfeasors and the court further noted that plaintiffs’ diligence in attempting to identify defendants also did not toll the period of limitation. Consequently, because plaintiffs’ action was commencеd almost six months after the three-year period of limitation had expired, the trial court granted defendants’ motion for summary disposition.

Plaintiffs have launched a two-prong attack on the lower court’s opinion. They first argue that filing a John Doe complaint tolled the periоd of limitation because the defendants were named and served before the expiration of the summons from that complaint. We disagree.

In a products liability claim, as in this case, there is a period of limitation of three years from the accrual of such claim. MCL 600.5805(9); MSA 27A.5805(9). Plaintiffs аttempted to avoid the limitations bar by filing a John Doe complaint, i.e., naming no specific defendants, but instead referring to them as "XYZ Corp.,” etc. This type of complaint is authorized by the court rules:

(1) Persons who are or may be interested in the subject matter of an action, but whosе names ‍​‌‌​‌‌‌​​‌‌‌‌‌‌​​​‌​‌​​​​‌​​​​​‌​‌‌​​‌‌​‌‌​​​​‌​‍cannot be ascertained on diligent inquiry, may be made parties by being described as:
(a) unknown claimants;
(b) unknown owners; or
(c) unknown heirs, devisees, or assignees of a deceased person who may have been interested in the subject matter of the action. [MCR 2.201(D)(1), formerly GCR 1963, 201.4(1).]

While the court rules authorize the filing of such a *84complaint, they are silent on thе effect such a complaint has on the period of limitation.

Plaintiffs argue that the filing of such a complaint satisfies the statute of limitations. Plaintiffs contend that MCR 2.101(B) (an action is commenced by the filing of a complaint) controls and, therefore, whenever a complaint is filеd, the statute of limitations has been satisfied and is no longer an immediate issue.

Plaintiffs’ position here is untenable. The logical result of plaintiffs’ position is that the statute of limitations has little if any import, as it can easily be circumvented by the filing of any type of complaint. This would be a strange result indeed considering that statutes of limitation are seen as promoting justice by the prevention of stale claims being filed. Lothian v Detroit, 414 Mich 160, 166-167; 324 NW2d 9 (1982); Cronin v Minster Press, 56 Mich App 471, 478-479; 224 NW2d 336 (1974), lv den 393 Mich 811 (1975); Meda v City of Howell, 110 Mich App 179, 184; 312 NW2d 202 (1981). More importantly, plaintiffs’ position conflicts with the previous holdings of this Court that the filing of a "John Doe” complaint does not toll or satisfy the period of limitation; for all practical purposes all defendants specifically unnamed are not yet parties to a suit. Meda, supra, pp 185-186; Fazzalare v Desa Industries, Inc, 135 Mich App 1, 6; 351 NW2d 886 (1984).

Plaintiffs also argue that even if the John Doe complaint did not satisfy the statute of limitations, their amended complaint of April 30, 1985, named specific defendants, and because amendments relate back to the original complaint, MCR 2.118(D) [formerly GCR 1963, 118.4], and the original complaint was filed within the three-year limitation period, the action is not time-barred. However, this argument ignores the holding in Meda and Fazza*85lare that defendants not specifically named in John Doе complaints are not yet parties to the suit and, if added later, are considered new parties to the litigation. Therefore, amendments to a complaint that add new parties do not relate back. See also Browder v International Fidelity & Ins Co, 98 Mich App 358, 361; 296 NW2d 60 (1980), aff'd 413 Mich 603 (1982). Since defendants in the instant case were considered new parties when added, and the period of limitation had expired before they were added as parties, they were entitled to summary disposition.

Plaintiffs’ final argument on this issue is that because they were diligent in their attempts to determine the identity of the defendants, the pеriod of limitation should have been tolled. However, the "diligent plaintiff’ exception is not as broad as plaintiffs would have us believe. Plaintiffs rely on Charpentier v Young, 83 Mich App 145; 268 NW2d 322 (1978), rev’d on other grounds 403 Mich 851 (1978). By order, the Supreme Court held that the period of limitation was tolled during the time in which the motion to amend the complaint to add parties ‍​‌‌​‌‌‌​​‌‌‌‌‌‌​​​‌​‌​​​​‌​​​​​‌​‌‌​​‌‌​‌‌​​​​‌​‍defendant was pending, plaintiffs having demonstrated due diligence by seeking a decision on their motion within three weeks. Thus, as stated in Moore v Flower, 108 Mich App 214, 217; 310 NW2d 336 (1981), remanded 414 Mich 897 (1982):

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 *86to add parties or amend the complaint is pending in the trial court.

In this case, plaintiffs did not move to amend their complaint until the period of limitation had already run; tolling the period of limitation while the motion was pending would make no difference. Plaintiffs have provided this Court with no reason why their action is not time-barred. Thus, the trial court acted properly in granting defendants’ motion for summary disposition.

Plaintiffs’ second issue is that their cause of action did not accrue until the identity of all the defendants was discovered. In determining when a cause of action aсcrues for purposes of a statute of limitations, the general rule is that a cause accrues only when all the necessary elements have occurred and can be alleged in a proper complaint. Connelly v Paul Ruddy’s Equipment Repair & Service Co, 388 Mich 146, 150; 200 NW2d 70 (1972); Luick v Rademacher, 129 Mich App 803, 806; 342 NW2d 617 (1983). Given that the instant case involves a products liability claim, plaintiffs’ claim accrued when four elements had occurred and could be properly pled:

A cause of action arising out of tortious injury to a person accrues when all the elements of the cause of action have occurred and can be alleged in a proper complaint. These elements are:
1. The existence of a legal duty by defendant toward plaintiff;
2. the breach of such duty;
3. the proximate causal relation between the breach of such duty and an injury to the plaintiff; and
4. the plaintiff must have suffered damages. [Lefever v American Red Cross, 108 Mich App 69, 72; 310 NW2d 278 (1981).]

*87See also Connelly v Paul Ruddy’s Co, supra, p 150.

Plaintiffs do not deny that these four elements were present on November 5, 1981. Instead, plaintiffs claim that they did not know they had a legal cause of action until mid-1984, when they met with their ‍​‌‌​‌‌‌​​‌‌‌‌‌‌​​​‌​‌​​​​‌​​​​​‌​‌‌​​‌‌​‌‌​​​​‌​‍present attorney, and that they were not aware of the identity of the defendants until April of 1985. Plaintiffs therefore conclude that their cause of action accrued in mid-1984 or April of 1985.

Plaintiffs are basically arguing that until they had competent professional advice their cause of action did not accrue. This position is at odds with the well-established principle that it is not necessary for a plaintiff to know he has suffered an invasion of a legal right before a cause of action accrues. Leary v Rupp, 89 Mich App 145, 148; 280 NW2d 466 (1979); Huntington Woods v Wines, 122 Mich App 650, 652; 332 NW2d 557 (1983). Indeed, if plaintiffs’ position was followed, no statute of limitations would have any effect.

It would be an extremely dangerous rule of law that the accrual date of a cause of action is held in abeyancе indefinitely until a prospective plaintiff obtains professional assistance to determine the existence of a possible cause of action. Under such a theory, no limitations period would ever be binding. [Sedlak v Ford Motor Co, 64 Mich App 61, 63; 235 NW2d 63 (1975).]

See also Stoneman v Collier, 94 Mich App 187, 193; 288 NW2d 405 (1979); Reiterman v Westinghouse, Inc, 106 Mich App 698, 703; 308 NW2d 612 (1981). Consequently, plaintiffs’ position is without merit.

Plaintiffs’ other argument is that a cause of action did not accrue until the identity of the defendants was discovered. This is a version of *88what is called the "discovery rule,” which states that the period of limitation does not begin to run until the plaintiff discovers, or through the exercise of reasonable diligence should hаve discovered, that he had a possible cause of action. Filcek v Utica Building Co, 131 Mich App 396, 399; 345 NW2d 707 (1984); Mays v Three Rivers Rubber Corp, 135 Mich App 42, 49; 352 NW2d 339 (1984). Quite recently this doctrine has been applied in the products liability context. Bonney v The Upjohn Co, 129 Mich App 18, 35; 342 NW2d 551 (1983), lv den 419 Mich 868 (1984); Cullender v BASF Wyandotte Corp, 146 Mich App 423, 427; 381 NW2d 737 (1985); contra, Larson v Johns-Manville Sales Corp, 140 Mich App 254, 267; 365 NW2d 194 (1985), lv gtd 422 Mich 975 (1985).

The problem with plaintiffs’ position is that they apply the discovery rule in a context in which it is not designed to apply. In both Bonney and Cullender, the delаy in discovery was not that of the identity of the alleged tortfeasor, but was a delay in discovering that a disease was related to exposure to certain products (i.e., the element of proximate cause). As this Court stated in Reiterman v Westinghouse, supra, p 704:

There is a plethora of case law holding that the statute of limitations is not tolled pending discovery ‍​‌‌​‌‌‌​​‌‌‌‌‌‌​​​‌​‌​​​​‌​​​​​‌​‌‌​​‌‌​‌‌​​​​‌​‍of the identity of the alleged tortfeasor where all the other elements of the cause of action exist.

See also Thomas v Ferndale Laboratories, Inc, 97 Mich App 718, 720; 296 NW2d 160 (1980); Pendergast v American Fidelity Fire Ins Co, 118 Mich App 838, 843; 325 NW2d 602 (1982); Taulbee v Mosley, 127 Mich App 45, 47-48; 338 NW2d 547 (1983).

We decline to accept plaintiffs’ invitation to *89adopt the holding in the recent decision in Yustick v Eli Lilly & Co, 573 F Supp 1558 (ED Mich, 1983). In Yustick, a case involving the drug diethylstilbestrol (des), a federal district court held that plaintiffs claim did not accrue for statute of limitations purposes until the identity of the alleged tortfeasor was discovered. 573 F Supp, p 1562. However Yustick is a federal case relying for the most part on federal law. Second, Yustick involves the drug des, which often did not make its negative effects known on the children of its users for up tо twenty years. As such, a des case involves special considerations not present in the instant case. Thus we find that Yustick is not binding on this Court and, as previously stated, we decline to follow it.

Plaintiffs’ claim accrued on November 5, 1981, and at that time all the elements of a products liability clаim had occurred and could be pled in a proper complaint. Plaintiffs have been unable to provide this Court with any reason to delay this date in any way. Therefore, we hold that the trial court did not err in granting summary disposition in favor of the defendants.

Affirmed.

M. J. Kelly, P.J., concurred.



Concurrence Opinion

Shepherd, J.

(concurring). I concur in the result reached by the majority for the reason that there is no authority in either a statute or court rule authorizing the filing of a "John Doe” complaint except in limited circumstances that are not present here. At one time there was a statute that generally authorized the filing of a cоmplaint against an unknown defendant. MCL 600.6733; MSA 27A.6733. However, that statute was repealed by 1974 PA 297, § 2 effective April 1, 1975. *90The only other authority for filing a complaint against an unknown party is MCR 2.201(D)(1). However, the court rule only applies to unknown interested persons who are "unknown claimants,” "unknown owners,” or "unknown heirs, devisees, оr assignees of a deceased person.” The John Doe defendants in the present case do not fit into any of these categories. That is not surprising since, as stated in Martin, Dean & Webster, Michigan Court Rules Practice (2d ed), Rule 2.201, p 8: "The provisions concerning unknown parties are of use chiefly in actions concerning interests in property, estates, trust funds, etc.”

Meda v City of Howell, 110 Mich App 179; 312 NW2d 202 (1981), and Fazzalare v Desa Industries, Inc, 135 Mich App 1; 351 NW2d 886 (1984), cited in the majority opinion, do not squarely address this issue. However, the Court in Meda did state that the action against the John Doe defendant did not commence until the ‍​‌‌​‌‌‌​​‌‌‌‌‌‌​​​‌​‌​​​​‌​​​​​‌​‌‌​​‌‌​‌‌​​​​‌​‍plaintiff filed an amended complaint naming the previously unidentified defendant. Meda, p 185, n 1. It implicitly follows from the Court’s statement that there is no authority in most types of cases for filing a John Doe complaint and the filing of such a complaint is without effect. In my view, if we were to hold that a John Doe complaint is a legitimate procedural device, the unknown persons would become parties when the complaint is filed and the period of limitation would cease to run against the plaintiff the moment the complaint was filed even though the defendant is still unknown. For this reason I find the following statement in Fazzalare internally inconsistent; "While we are persuaded of no reason to prohibit the filing of 'John Doe’ complaints, it is our opinion that the running of the applicable statutory limitation period is not inter*91rupted by the filing of such a complaint.” Fazzalare, p 6.

For all these reasons, I am inevitably, although reluctantly, drawn to the conclusion that thеre is no authorization in most cases and certainly none in this case for filing of a John Doe complaint, and that the complaint or amended complaint naming the defendants must be filed within the statutory period. My reluctance is based on a personal preference for a rule that would permit John Doe complaints in all cases. I do not believe that the result reached here is just, but it is a result mandated by the law. A just result would, in my view, be one which allows a John Doe complaint to be filed, coupled with a due diligence requirement in cases where the defendant is, in fact and with good reason, unknown when the original complaint is filed.