Trentadue v. Buckler Automatic Lawn Sprinkler CompanyTrentadue v. Buckler Automatic Lawn Sprinkler Company
Lead Opinion
This wrongful death case requires us to consider whether the common-law “discovery rule,” which allows tolling of the statutory period of limitations when a plaintiff could not have reasonably discovered the elements of a cause of action within the limitations period, can operate
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
This case arises from the tragic rape and murder of Margarette F. Eby in November 1986 at her home in Flint. According to plaintiffs complaint, in 1981 Eby leased a residence in the gatehouse on the grounds of the Mott family estate from Ruth R. Mott (Mott) where Eby began to live. Eby was found raped and murdered on November 9, 1986, after last being seen alive on November 7, 1986. The rape and murder remained unsolved until 2002, when deoxyribonucleic acid (DNA) evidence established that Jeffrey Gorton, an employee of his parents’ corporation, the Buckler Automatic Lawn Sprinkler Company (Buckler), which serviced the sprinkler system on the grounds, had committed the crime. Gorton pleaded no contest when charged with the murder and was sentenced to life imprisonment for Eby’s rape-murder.
On August 2, 2002, plaintiff Dayle Trentadue, Eby’s daughter and the personal representative of her estate, filed a complaint against Jeffrey Gorton; his parents Shirley and Lawrence Gorton who, as noted, operated Buckler; Buckler; Carl E Bekofske, personal representative of the estate of Ruth R. Mott, deceased, who died in 1999; MFO Management Company (MFO), the management company that provided administrative services to the Mott family; and two of Mott’s employees, Victor Nyberg and Todd Bakos, asserting several theories of negligence. Regarding the Gortons, the contentions were essentially negligent hiring and monitoring of Jeffrey Gorton. The other defendants were allegedly negligent in allowing access to the area that led to Eby’s residence and not providing adequate security or alarms.
Each defendant, except Jeffrey Gorton, moved for summary disposition under MCR 2.116(C)(7), arguing, among other things, that plaintiffs action was barred by the three-year statute of limitations for wrongful death actions.
The Genesee Circuit Court ruled for plaintiff, adopting her theory that the common-law discovery rule remains viable in Michigan and thus applicable here. The court concluded regarding defendants Buckler and Shirley and Lawrence Gorton that “[a] claim for personal injury accrues when all of the elements are present and can be properly pleaded in a complaint,” citing, e.g., Connelly v Paul Ruddy’s Equip Repair & Service Co,
On appeal, the Court of Appeals affirmed in part, reversed in part, and remanded, concluding that the common-law discovery rule tolled the limitations period for all plaintiff’s claims, including the improper security claims against Bekofske and MFO.
Buckler, the Gortons, and MFO sought leave to appeal in this Court. We granted leave to appeal to consider whether a common-law discovery rule continues to exist in Michigan or whether
This Court reviews motions for summary disposition under MCR 2.116(C)(7) de novo. Grimes v Dep’t of Transportation,
III. ANALYSIS
A. THE STATUTE OF LIMITATIONS AND ITS EFFECT ON THE COMMON-LAW DISCOVERY RULE
The applicable statute of limitations in a wrongful death case is
Moreover,
Except as otherwise expressly provided, the period of limitations runs from the time the claim accrues. The claim accrues at the time provided in sections 5829 to 5838, arid in cases not covered by these sections the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results.
The Revised Judicature Act, at
Plaintiff contends, however, that, notwithstanding these statutes, when the claimant was unaware of any basis for an action, the harsh result of barring any lawsuit because the period of limitations has expired can be avoided by the operation of a court-created discovery rule, sometimes described as a common-law rule, articulated in Johnson v Caldwell,
It is axiomatic that the Legislature has the authority to abrogate the common law. Hoerstman Gen Contracting, Inc v Hahn,
“In general, where comprehensive legislation prescribes in detail a course of conduct to pursue and the parties and things affected, and designates specific limitations and exceptions, the Legislature will be found to have intended that the statute supersede and replace the common law dealing with the subject matter.” [Hoerstman Gen Contracting, supra at 74, quoting Millross v Plum Hollow Golf Club,429 Mich 178 , 183;413 NW2d 17 (1987), citing 2A Sands, Sutherland Statutory Construction (4th ed), § 50.05, pp 440-441] [12 ]
Here, as we have explained, the relevant sections of the Revised Judicature Act comprehensively establish limitations periods, times of accrual, and tolling for civil cases.
Finally,
Overruling these cases is the most appropriate course of action because they run directly counter to the legislative scheme. Further, overruling them is not problematic, under Robinson v Detroit,
Finally, our dissenting colleagues’ explanations for why we should not overrule cases that employ a common-law discovery rule ignore the central reasoning and result of our decision. Justice Kelly states, for instance, that “[t]he common-law discovery rule has become so embedded in the fabric of Michigan limitations law that the state’s jurisprudence will be seriously damaged by destroying it.” Post at 442. But rather than destroy the discovery rule, we recognize that the Legislature has comprehensively established the circumstances under which the rule should be applied and has, in the process, rendered use of the rule more uniform and predictable for plaintiffs, defendants and courts alike.
B. ADDITIONAL RESPONSE TO DISSENTS
First, we reject Justice Kelly’s contention in dissent that the statutory scheme evinces the Legislature’s intent simply to “ratifly] prior decisions of this Court applying the common-law discovery rule,” post at 439, and, therefore, to “implicitly acknowledge!] the applicability of the rule in other types of cases.” Post at 440. She concludes that the Legislature has abrogated our decisions only to “limit[] the discovery rule where it saw fit.” Post at
But the scheme does not, as Justice KELLY asserts, merely “expressly provid[e] that the discovery rule does not apply in professional negligence cases,” thus “impl[ying] that it was to apply in all other contexts” under the maxim of expressio unius est exclusio alterius. Post at 440 n 7. In drawing this conclusion, Justice KELLY focuses on the first sections of
accrues at the time [the professional] discontinues serving the plaintiff in a professional or pseudoprofessional capacity as to the matters out of which the claim for malpractice arose, regardless of the time the plaintiff discovers or otherwise has knowledge of the claim. [Emphasis added.]
The second section of this statute, however, explicitly authorizes discovery-based tolling.
an action involving a claim based on malpractice may be commenced at any time within the applicable period prescribed in sections 5805 or 5851 to 5856, or within 6 months after the plaintiff discovers or should have discovered the existence of the claim, whichever is later. [Emphasis added.]
In other words, the statute simultaneously authorizes and limits the circumstances under which tolling is appropriate. The same is true of the other statutes that our dissenting colleagues claim merely limit how the rule applies in certain cases; each statute comprehensively authorizes and limits the use of discovery-based tolling in particular circumstances.
Most significantly, both dissenting justices’ interpretations of the scheme directly contravene the broad mandate in § 5827 that, “[e]xcept as otherwise expressly provided, the period of limitations runs from the time the claim accrues.” In accord with this mandate,
Justice Weaver’s argument regarding this issue only serves to strengthen our point. She explains that “the fraudulent concealment provision would not be helpful to this plaintiff, nor to other plaintiffs who, in the absence of fraudulent concealment, are unable to pursue a claim because they did not have the information necessary to establish a claim until after the period of limitation had expired.” Post at 424-425. Therefore, she concludes: “Given the distinct need for the common-law discovery rule to assist these innocent plaintiffs, it cannot be said that the continued existence of the discovery rule makes § 5855 superfluous. The two provisions can peacefully co-exist because they serve different purposes.” Post at 425.
To the contrary, the common-law discovery rule fully encompasses the statutory rule allowing tolling based on fraudulent concealment. As described by Justice WEAVER, for instance, the common-law rule applied if the “plaintiff did not have enough information to allege” elements of the claim, through no fault of her own. Post at 414. The discovery of previously unknown information would therefore permit a claim to be saved by the discoveiy rule regardless of whether the information was intentionally obscured from the plaintiff. Thus, Justice Weaver’s interpretation renders the fraudulent concealment statute
Finally, we also disagree with Justice Kelly’s contention that the lower courts could nonetheless employ a discoveiy rule here because courts commonly did so in 1986 at the time of Eby’s death. She cites
Most significantly, Justice KELLY’s focus on
For similar reasons, our decision does not “throwD Michigan into topsy-turvy land, where a person’s legal claim dies before it is born.” Post at 449. A discovery rule is only necessary when a plaintiffs claim has accrued and he cannot bring suit within the limitations period. Nothing in our decision cuts off a plaintiffs right to bring suit before the wrong is done; for, until the wrong is done, a claim does not accrue under
C. DUE PROCESS
Plaintiff also asserts that, in construing
Plaintiffs reasoning is rooted in the following passage from Price v Hopkin,
[T]he legislative authority is not so entirely unlimited that, under the name of a statute limiting the time within which a party shall resort to his legal remedy, all remedy whatsoever may be taken away.... It is of the essence of a law of limitation that it shall afford a reasonable time within which suit may be brought and a statute that fails to do this cannot possibly be sustained as a law of limitations, but would be a palpable violation of the constitutional provision that no person shall be deprived of property without due process of law. [Citations omitted.]
Justices KELLY and WEAVER also rely on Price for their contention that our holding violates due process. They misconstrue the holding in Price, however, which does not apply to this case.
Price does not address the discovery rule. Rather, there, the Court was faced with a new legislative enactment that shortened the limitations period during which a plaintiff could bring a suit for ejectment from land. Id. at 322-323. When the act took effect, it applied to all future cases that had not yet been filed. Id. at 323. Accordingly, the ability to bring suit was extinguished for a limited class of plaintiffs who, before the act was passed, had relied on the former limitations period and expected to be able to bring suit in the future. Id. at 323, 324-328. The Price Court concluded that, under the circumstances, due process was violated because a legislature may not “take away an existing right of action, by a statute of limitations which allows no time
Accordingly, the specific holding in Price has no bearing on this case, in which the limitations period has remained consistent since the time plaintiffs causes of action accrued.
The general power of the legislature to pass statutes of limitation is not doubted. The time that these statutes shall allow for bringing suits is to be fixed by the legislative judgment, and where the legislature has fairly exercised its discretion, no court is at liberty to review its action, and to annul the law, because in their opinion the legislative power has been unwisely exercised. [Price, supra at 324.]
Given the Legislature’s unquestioned power, the only question we must ask — as with any due process analysis of a statute that involves neither a suspect classification such as race, alienage, ethnicity or national origin, nor a deprivation of a fundamental right — is whether it “ ‘bears a reasonable relation to a permissible legislative objective.’ ” Phillips v Mirac, Inc,
In light of the permissible legislative objectives of statutes of limitations, O’Brien, supra, the statutes applicable to this case unquestionably further a legitimate legislative aim. The Legislature obviously weighed carefully the competing interests of plaintiffs and defendants when it limited a plaintiffs ability to bring suit under
D. EQUITABLE TOLLING UNDER BRYANT v OAKPOINTE VILLA NURSING CENTRE, INC
Finally, we decline plaintiffs request to employ a “pinpoint application of equity” to her claims so as to render them timely, on the unique facts of this case. In making this request, plaintiff relies largely on Bryant v Oakpointe Villa Nursing Centre, Inc,
[t]he distinction between actions sounding in medical malpractice and those sounding in ordinary negligence is one that has troubled the bench and bar in Michigan .. . [and the plaintiff’s failure to comply with the applicable statute of limitations is the product of an understandable confusion about the legal nature of her claim, rather them a negligent failure to preserve her rights. [Id. at 432.]
As we clarified in Devillers v Auto Club Ins Ass’n,
IV CONCLUSION
We hold that the plain language of
We reverse the judgment of the Court of Appeals as well as the circuit court’s order denying the defendant-appellants’ motions for summary disposition under MCR 2.116(C)(7). We remand to the circuit court for further proceedings consistent with this opinion.
Notes
Except as otherwise expressly provided, the period of limitations runs from the time the claim accrues. The claim accrues at the time provided in sections 5829 to 5838, and in cases not covered by these sections the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results.
Boyle v Gen Motors Corp,
Regarding plaintiffs inability to discover the identity of the killer, she characterized the facts largely as do Justice Kelly and Justice Weaver in dissent. Most significantly, plaintiff claimed that she could not have discovered her premises liability and security claims against Mott and MFO because the police were convinced that Eby had been murdered by an acquaintance whom she allowed into the apartment. This claim distorts the affidavit of David King, the homicide investigator. King described the method of entry as “undetermined” and attested that the police investigated Eby’s acquaintances and other persons “who appeared to be suspicious because of their lifestyle.” It appears unknown why police did not interview Jeffrey Gorton.
The claim against Jeffrey Gorton is not in dispute.
See, e.g., Joliet, supra at 40; Garg v Macomb Co Community Mental Health Services,
Although this Court has consistently applied the statutes together, Justice Kelly now questions whether
Significantly, Justice Kelly’s preferred application of
A personal injury claim must allege that (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached the duty, (3) the breach was the proximate cause of the plaintiffs injuries, and (4) damage. Moll, supra at 16.
Justice Weaver makes the same argument but also goes one step further. She acknowledges that, under
Similarly, see Sington v Chrysler Corp,
Justice Weaver’s effort at distinguishing Hoerstman and Millross on the basis of their facts is unavailing. She points out that the statutory scheme at issue here does not contain precisely the same language as the statutes at issue in those cases. Post at 421-424. Hoerstman and Millross do not stand for the proposition that the Legislature is bound to use certain language to convey its intent to abrogate the common law in a given area, however. To the contrary, these cases direct us to examine the scheme as a whole and ask if it constitutes “ ‘comprehensive legislation prescribing] in detail a course of conduct to pursue and the parties and things affected, and designating] specific limitations and exceptions.’ ” Hoerstman Gen Contracting, supra at 74, quoting Millross, supra at 183. As Justice Weaver plainly states: “What is important in conveying [the] intent [to abrogate] is that the legislation be comprehensive.” Post at 423.
If a person who is or may be hable for any claim fraudulently conceals the existence of the claim or the identity of any person who is liable for the claim from the knowledge of the person entitled to sue on the claim, the action may be commenced at any time within 2 years after the person who is entitled to bring the action discovers, or should have discovered, the existence of the claim or the identity of the person who is hable for the claim, although the action would otherwise be barred by the period of limitations.
This result is also consistent with our recent holding in Boyle, supra at 231-232, in which we declined to employ the discovery rule to the plaintiffs’ fraud claim based, in part, on the plain language of
We note that Justice Weaver, in particular, relies on Chase to support her dissenting conclusion that “this case presents the unique situation in which this Court has traditionally applied the discovery rule[.]” Post at 415, citing Stephens v Dixon,449 Mich 531 , 534-536;536 NW2d 755 (1995), in turn quoting Chase, supra at 196-197. First, the plaintiff in Chase alleged that a surgeon negligently injured him during surgery. Id. at 192. Therefore, the Chase Court’s broad observations regarding appropriate use of the discovery rule are arguably dicta when applied beyond the medical malpractice context. Most significantly, the Chase Court concluded that use of the discovery rule was particularly appropriate because a medical malpractice plaintiff will typically rely on a hospital or physician’s records to prove his claim. Id. at 199-200. As Justice Weaver observes, in contexts such as medical malpractice where the rule is typically applied, “ ‘evidentiary records are rarely diminished by the passage of time’ ” and, therefore, there is less concern for protecting defendants from fading memories and time-flawed evidence. Post at 418, quoting Stephens, supra at 537. Thus, although we reject the Chase Court’s use of a discovery rule when not authorized by statute, we also fail to see how the instant case “presents the unique situation in which this Court has traditionally applied the discovery rule[.]” Post at 415.
Phillips v Mirac,
Although Justice Kelly criticizes us for disregarding precedent, post at 437, she very recently indicated that she would have been more than willing to overrule precedent she disfavored, e.g. People v Nutt,
In a similar vein,
US Const, Am XIV; Const 1963, art 1, § 17.
Justice Weaver argues that, in Chase, supra at 196, this Court cited Price as general support for continued use of the discovery rule. Post at 428-429. The reference to Price in Chase directly precedes a discussion of the general proposition — rooted in
See, also, Stephens v Dixon,
“While providing equitable relief to plaintiffs otherwise barred by a strict application of the statute of limitations, the discovery rule also threatens legitimate interests of the defendant which the statute protects. While it may be harsh to bar the action of a plaintiff who, through no fault of his own, did not discover his injury until after the running of the statute, it is also unfair ... to compel a defendant to answer a charge arising out of events in the distant past. The discovery rule tends to undermine the sense of security that the statute of limitations was designed to provide, namely, that at some point a person is entitled to put the past behind him and leave it there.” [Olsen, The discovery rule in New Jersey: Unlimited limitation on the statute of limitations, 42 Rutgers L R 205, 211-212 (1989).]
In her dissent, Justice Kelly asserts: “The purpose of a limitations statute is to ‘penalize plaintiffs who have not been industrious in pursuing their claims,’ not to eliminate a valid cause of action when the plaintiff is without fault.” Post at 445-446, quoting Lemmerman v Fealk,
Const 1963, art 3, § 2.
Dissenting Opinion
(dissenting). I dissent from the majority’s conclusion that
Further, I concur with Justice KELLY that under the test set forth in Robinson v Detroit,
FACTS
In 1981, Dr. Margarette Eby moved to Flint, Michigan, and began leasing a two-story gatehouse located near the entrance to the Ruth R. Mott estate (Mott Estate). Evidently Mrs. Mott lived a hermitic lifestyle on the Mott Estate grounds known as “Applewood.” Virtually all her personal
The gatehouse was remotely located some distance from Mrs. Mott’s home, and the gatehouse basement contained the valves and piping that supported the sprinkler system for the entire Mott Estate grounds. In January 1985, Dr. Eby complained to Mrs. Mott about break-ins she experienced at the gatehouse, including an incident on January 23, 1985, during which Dr. Eby’s compact disc player and purse were stolen. Paul Yager, then the chief executive officer of MFO, responded to Dr. Eby’s complaint on behalf of Mrs. Mott. In response to Dr. Eby’s complaint and her request for installation of a security alarm system, Mrs. Mott had new deadbolt locks installed. No alarm system was installed.
Nearly two years later, late in the evening on November 7, 1986, Dr. Eby returned to the gatehouse after a dinner party. Two friends accompanied her to the gatehouse door and waited until she was safely inside before departing. Two days later, Dr. Eby was found dead in the gatehouse. She had been attacked, raped, and knifed to death. The police investigation of Dr. Eby’s death focused primarily on persons who might have been known to Dr. Eby because there appeared to be no sign of forced entry. Police interviewed a number of suspicious persons, but there was never any evidence developed that implicated those persons in Dr. Eby’s death. The evidence collected included deoxyribonucleic acid (DNA) evidence (semen) from Dr. Eby’s body, as well as a partial fingerprint from a faucet inside the gatehouse.
In 1991, Nancy Ludwig, an airline attendant, was attacked, raped, and knifed to death in a hotel near the Detroit Metropolitan Airport. The circumstances surrounding her death were strikingly similar to Dr. Eby’s, and at the request of Dr. Eby’s son, the police reopened the investigation into Dr. Eby’s death. After additional DNA testing on evidence collected from both victims, and after comparing fingerprints left at both crime scenes, investigators were able to determine that Jeffrey Gorton committed both murders.
Before Dr. Eby’s death in 1986, Jeffrey Gorton was an employee of Buckler Automatic Lawn Sprinkler Company (Buckler), which serviced the Mott Estate’s sprinkler system. Buckler was owned by Jeffrey Gorton’s parents, Laurence and Shirley Gorton. Jeffrey Gorton was provided access to the sprinkler system controls housed in the gatehouse basement through Mott Estate staff members Victor Nyberg and Todd Bakos, both allegedly employed by MFO.
On August 2, 2002, six months after discovering the identity of Dr. Eby’s murderer through the arrest of Gorton, plaintiff Dayle Trentadue, daughter of Dr. Eby and personal representative for the estate of Margarette F. Eby (estate of Eby), filed a wrongful death complaint against multiple defendants. The defendants included Buckler, its owners Laurence and Shirley Gorton, Jeffrey Gorton, Ruth Mott, MFO, and MFO employees Nyberg and Bakos. The complaint alleged, among other things, negligent hiring and negligent supervision of Dr. Eby’s killer, Jeffrey Gorton.
All defendants filed motions for summary disposition, but the circuit court granted summary disposition only to defendants Mott and MFO, and only on one count (count VIII, which alleged that the premises were unsafe). The parties appealed, and the Court of Appeals reversed the summary disposition for MFO on count VIII, affirmed in all other respects, and remanded the matter to the circuit court for further proceedings.
Defendants appealed, and we granted leave, directing the parties to include among the issues to be briefed:
[WJhether the Court of Appeals application of a common-law discovery rule to determine when plaintiffs claims accrued is inconsistent with or contravenesMCL 600.5827 , and whether previous decisions of this Court, which have recognized and applied such a rule whenMCL 600.5827 would otherwise control, should be overruled. [Trentadue v Buckler Automatic Laum Sprinkler Co,475 Mich 906 (2006).]
ANALYSIS
Except as otherwise expressly provided, the period of limitations runs from the time the claim accrues. The claim accrues at the time provided in sections 5829 to 5838, and in cases not covered by these sections the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results.
They encourage the prompt recovery of damages, Buzzn v Muncey Cartage Co,248 Mich 64 , 67;226 NW 836 (1929); they penalize plaintiffs who have not been industrious in pursuing their claims, First National Bank of Ovid v Steel,146 Mich 308 ;109 NW 423 (1906); they “afford security against stale demands when the circumstances would be unfavorable to a just examination and decision”, Jenny v Perkins,17 Mich 28 , 33 (1868); they relieve defendants of the prolonged fear of litigation, Bigelow [v Walraven], supra, [392 Mich at] 576 [;221 NW2d 328 (1974)]; they prevent fraudulent claims from being asserted, Bailey v Glover, 88 US (21 Wall) 342;22 L Ed 636 (1875); and they “ ‘remedy. .. the general inconvenience resulting from delay in the assertion of a legal right which it is practicable to assert’ Lenawee County v Nutten,234 Mich 391 , 396;208 NW 613 (1926).
In Lemmerman v Fealk,
However, neither of these policy considerations will be furthered by application of these provisions given that plaintiff was deprived of the evidence necessary to even establish that a claim existed until long after the period of limitations had expired. It is precisely in situations such as the one plaintiff faces here that this Court has applied the discovery rule to prevent a statute of limitations from foreclosing a plaintiffs right to bring suit. And, in fact, the law in this state in 1986, the year of Dr. Eby’s murder, was that a cause of action did not accrue until the elements forming the basis of the complaint could be pleaded:
In the case of an action for damages arising out of tortious injury to a person, the cause of action accrues when all of the elements of the cause of action have occurred and can be alleged in a proper complaint.
Those elements are four in number.
(1) The existence of a legal duty by defendant toward plaintiff.
(2) The breach of such duty.
(3) A proximate causal relationship between the breach of such duty and an injury to the plaintiff.
(4) The plaintiff must have suffered damages.[11 ]
At the time of Dr. Eby’s death, not all the elements of a wrongful death action had “occurred.” The majority disagrees with this contention, ante at 389 n 10, arguing that each element of plaintiffs claim had “occurred” at the time Dr. Eby was murdered; however, while I concede
And while defendants have asserted that despite the absence of the critical information pertaining to how Dr. Eby in fact died, plaintiff could still have adequately alleged a general negligence claim within the statutory period, had she done so, her claim likely would have been deemed legally deficient given that the criminal evidence collected at the time of Dr. Eby’s death tended to indicate that Dr. Eby herself allowed the killer into her own home.
As we stated in Stephens v Dixon,
In Michigan, the limitation period for ordinary negligence actions such as the case at bar is three years.MCL 600.5805(8) ; MSA 27A.5805(8). The most complicated problem associated with statutes of limitation, and the problem presented in this case, is that of determining when they begin to run.MCL 600.5805(8) ; MSA 27A.5805(8) provides that “[t]he claim accrues at the time... the wrong upon which the claim is based was done regardless of the time when damage results.”MCL 600.5827 ; MSA 27A.5827. We have held that the term “wrong,” as used in the accrual provision, refers to the date on which the plaintiff was harmed by the defendant’s negligent act, not the date on which the defendant acted negligently. Connelly v Paul Ruddy’s Equipment Repair & Service Co, 388 Mich 146;200 NW2d 70 (1972). Otherwise, a plaintiffs cause of action could be barred before the injury took place.
Another accrual problem associated with statutes of limitation occurs when a plaintiff is injured but is unaware of the injury. If the statute of limitation begins to run at the time of injury, it ispossible that plaintiffs with perfectly valid claims could be prevented, through no fault of their own, from bringing their actions within the specified period of limitation. In situations such as these, the common law has developed equitable rules to mitigate the harsh effects of the statute of limitation. One such exception is the discovery rule. The discovery rule, based on principles of fundamental fairness, “was formulated to avoid the harsh results produced by commencing the running of the statute of limitations before a claimant was aware of any basis for an action.” Hammer v Hammer, 142 Wis 2d 257 , 264;418 NW2d 23 (1987).
We explained the discovery rule in Chase v Sabin,445 Mich 190 , 196-197;516 NW2d 60 (1994). In Chase, a 1963 eye operation failed because of an event that occurred during the operation. The plaintiff was not told of the occurrence. In 1988, while pursuing an unrelated worker’s compensation claim, the plaintiff’s attorney obtained a hospital record of the surgery and learned of the event. We stated:
“Similarly, because statutes of limitation do not evidence a legislative intent to extinguish a cause of action before the plaintiff is aware of the possible cause of action, we have adopted the discovery rule in the appropriate instances. Last term... we held that the discovery rule controls the date a pharmaceutical products liability action accrues. ‘If the three-year period of limitation began to run at the time of the defendant’s breach, most, if not all, claims would be barred before the plaintiff had reason to know of the injury and the cause of the injury. Such an interpretation seeks “to declare the bread stale before it is baked.” ’ (Citation omitted.)”
We note that while the discovery rule serves as an important limit, on a mechanical and unjust termination of a legitimate cause of action, there can be equitable problems with the imposition of the discovery rule as well. As one commentator has stated:
“While providing equitable relief to plaintiffs otherwise harred by a strict application of the statute of limitations, the discovery rule also threatens legitimate interests of the defendant which the statute protects. While it may be harsh to bar the action of a plaintiff who, through no fault of his own, did not discover his injury until after the running of the statute, it is also unfair... to compel a defendant to answer a charge arising out of events in the distant past. The discovery rule tends to undermine the sense of security that the statute of limitations was designed to provide, namely, that at some point a person is entitled to put the past behind him and leave it there. [Olsen, The discovery rule in New Jersey; Unlimited limitation on the statute of limitations, 42 Rutgers L R 205, 211-212 (1989).]”
Given the competing interests of balancing the plaintiffs right to bring a claim once a plaintiff learns of the injuries with the defendant’s right not to have to defend a stale claim, the Stephens Court went on to discuss when to apply the discovery rule:
In the present case, the plaintiff proposes that we take a step beyond the rule of Chase [v Sabin, supra]. There, we held that “the discovery rule governs the accrual date for negligence claims, pursued against hospitals and their agents, which are similar to malpractice claims.” Id. at 201. By contrast, the present case involves allegations of ordinary negligence.
In Moll v Abbott Laboratories,444 Mich 1 , 12-13;506 NW2d 816 (1993),we noted this Court’s adoption of the discovery rule for medical malpractice cases in Johnson v Caldwell, 371 Mich 368 ;123 NW2d 785 (1963), in negligent misrepresentation cases in Williams v Polgar,391 Mich 6 ;215 NW2d 149 (1974), and in products liability actions for asbestos-related diseases in Larson v Johns-Manville Sales Corp,427 Mich 301 ;399 NW2d 1 (1986). In Moll, we extended the application of the discovery rule to products liability actions for pharmaceutical products liability actions. Defendant correctly points out that in these contexts, evidentiary records are rarely diminished by the passage of time. Hence, as we stated in Larson, supra at 312, quoting Eagle-Pitcher Industries, Inc v Cox, 481 So 2d 517, 523 (Fla App, 1985), “the concern for protecting defendants from ‘time-flawed evidence, fading memories, lost documents, etc.’ is less significant in these cases.” That is not the case in automobile tort liability cases, where the evidence for liability defense is often dependent on fading memories of individual witnesses.
We hold that the discovery rule is not available in a case of ordinary negligence where a plaintiff merely misjudges the severity of a known injury. [Id. at 537.]
Ultimately, the Stephens Court declined to extend the discovery rule in that case because, unlike plaintiff herein, the plaintiff in Stephens not only knew she was injured, hut knew the cause of her injury before the period of limitations expired. The plaintiff in Stephens had argued that even though she knew she was injured, she did not know the true extent of her injuries until after the period of limitations had expired. Citing Connelly, supra, the Court declined to apply the discovery rule and restated the rule that “a cause of action for tortious injury accrues ‘when all of the elements of the cause of action have occurred and can be alleged in a proper complaint.’ ”
In contrast to the plaintiff in Stephens, plaintiff Trentadue, as personal representative of the estate of Eby, did not have the information available to bring a wrongful death claim until she knew who the killer was and how, the killer managed to get access to Dr. Eby’s private residence. Essentially, the “injury,” that is, the wrongful death, was not apparent until 16 years after Dr. Ehy’s death. Nor was the “cause” of that injury apparent until after the period of limitations had expired.
In determining when the wrongful death claim accrued, we turn to
Except as otherwise expressly provided, the period of limitations runs from the time the claim accrues. The claim accrues at the time provided in sections 5829 to 5838, and in cases not covered by these sections the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results. [Emphasis added.]
The statute does not define “wrong” or “damage,” but this Court has already examined these terms and provided the following analysis:
Defendants argue that the statutory provision “* * * the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results” means, in the context of this case, that claims against them are barred, since breach of dutyclaimed against them must have occurred prior to March 15, 1965, more than 3 years before action was commenced.
Defendants contend that the word wrong refers to an act of carelessness or negligence in repairing or handling the press. By their view, the word damage refers to the personal injury suffered by the plaintiff on May 12, 1965, the day that the press malfunctioned.
Defendants claim that interpreting the word wrong to mean actionable wrong, tort, harm or injury is to broaden the meaning of that word, and render the word damage entirely meaningless.
It is argued by the plaintiff that under such a view, her claim is barred before she was hurt. She would never have been able to commence an action at all.
By that interpretation, plaintiff says, the statute is not one of limitation but one of abolition, completely destroying her cause of action before it arises.
Defendants counter by pointing out that the statute of limitations is a statute of repose, designed to protect defendants from stale claims; that this is an industrial state and it is therefore reasonable to conclude that the Legislature intended to protect industrial and commercial interests by fixing a certain limit upon exposure to liability for faulty products and workmanship.
We cannot accept the defendants’ view. However desirable the stated objectives might be, it is doubted that such was the legislative purpose. The statute in question is the Revised Judicature Act. It was drawn, as defendants point out, by a distinguished committee of lawyers, known as the Joint Committee on Michigan Procedural Revision. The purpose of the Act was to effect procedural improvements, not advance social, industrial or commercial policy in substantive areas.
The word damage is not rendered meaningless in a fair reading of the statute, even where the word wrong is understood to mean actionable wrong.
It is quite common in personal injury actions to allege and prove future loss of earning capacity, future medical expenses, future pain and suffering. Indeed all of these elements must be alleged and proved in a single cause of action. Once all of the elements of an action for personal injury, including the element of damage, are present, the claim accrues and the statute of limitations begins to run. Later damages may result, but they give rise to no new cause of action, nor does the statute of limitations begin to run anew as each item of damage is incurred. [Connelly, supra at 150-151 (emphasis added).]
Thus, for purposes of a wrongful death action in which a plaintiff seeks damages for tortious injuries and death suffered by the decedent, the time that the claim first accrues is the point in time when “all of the elements of an action for personal injury, including the element of damage, are present...Id. at 151. Because plaintiff, through no fault of her own, lacked the information necessary to establish the elements of wrongful death until 16 years after Dr. Eby’s death, the claim did not accrue until plaintiff became aware of that information.
Today, the majority overrules Johnson and its progeny, effectively depriving plaintiff, and future potential injured parties, from seeking compensation when their injuries are not known to them before the statutory period of limitations expires. As a result, statutes of limitations will be imposed not on those who would sit on their rights, but on the innocent, who, through no fault of their own, have been
The majority’s justification for the abolition of the discovery rule is that, with the enactment of
As already noted, Article 3 of the UCC is comprehensive. It is intended to apply to nearly every situation involving negotiable instruments. SeeMCL 440.3102. The language contained inMCL 440.3311 completely covers the details of accord and satisfactions.
MCL 440.3311(3) and (4) contain exceptions or conditions. Their enumeration eliminates the possibility of their being other exceptions under the legal maxim expressio unius est exclusio alterius. The maxim is a rule of construction that is a product of logic and common sense. This Court long ago stated that no maxim is more uniformly used to properly construe statutes.
Therefore, the language of the statute shows that the Legislature covered the entire area of accord and satisfactions involving negotiable instruments. It clearly intended that the statute would abrogate the common law on this subject. [Id. at 74-75 (citations omitted; emphasis added).]
The rationale from Hoerstman is not applicable to the statutory scheme at issue here because
The majority claims that Hoerstman and Millross are not distinguishable on this basis, ante at 390 n 12, because these cases do not establish that the Legislature must use certain language to abrogate the common law. However, as the Hoerstman Court correctly noted, “[t]he Legislature has the authority to abrogate the common law.”
For example, the Hoerstman Court cited Millross, supra, for the proposition that comprehensive legislation abrogates the common law.
the Legislature has amended the act to expressly codify this intent in1986 PA 176 , which provides in pertinent part, “This section provides the exclusive remedy for money damages against a licensee arising out of the selling, giving, or furnishing of alcoholic liquor.”MCL 436.22(11) ; MSA 18.993(11). [Millross, supra at 186 (emphasis added).]
In contrast, nowhere in chapter 58, Limitations of Actions, is there a provision establishing that that chapter is exclusive. Nor is there any language evidencing an intent by the Legislature to abolish the common-law discovery rule in order to provide “complete and self-contained” legislation limiting the time in which actions could be brought and thereby replace the discovery rule.
The majority asserts, ante at 391, that because the Legislature included
Further, I disagree with the majority’s assertion that a narrowly drawn statute purports to change an entire body of common law in the absence of the Legislature explicitly stating that it so intends. The majority’s assertion incorrectly assumes that a narrowly tailored statute, which is silent with regard to the broad scope of the discovery rule, somehow changes the entire application of the discovery rule.
Given the distinct need for the common-law discovery rule to assist these innocent plaintiffs, it cannot be said that the continued existence of the discoveiy rule makes § 5855 superfluous. The two provisions can peacefully coexist because they serve different purposes.
Indeed, it is evident that when the Legislature wanted to supersede the common-law discovery rule, it did so specifically with regard to certain claims. For example,
(1) Except as other provided in section 5838a, a claim based on the malpractice of a person who is, or holds himself or herself out to be, a member of a state licensed profession accrues at the time that person discontinues serving the plaintiff in a professional or pseudoprofessional capacity as to the matters out of which the claim for malpractice arose, regardless of the time the plaintiff discovers or otherwise has knowledge of the claim.
(2) Except as otherwise provided in section 5838a, an action involving a claim based on malpractice may be commenced at any time within the applicable period prescribed in sections 5805 or 5851 to 5856, or within 6 months after the plaintiff discovers or should have discovered the existence of the claim, whichever is later. The burden of proving that the plaintiff neither discovered nor should have discovered the existence of the claim at least 6 months before the expiration of the period otherwise applicable to the claim shall be on the plaintiff. A malpractice action which is not commenced within the time prescribed by this subsection is barred. [Emphasis added. ][22 ]
In contrast to the malpractice limitation provisions, which indicate with specificity how the discovery rule should be applied, the wrongful death limitation provisions at issue here do not bar the use of the common-law discovery rule, nor do they limit the application of the discovery rule in certain instances. Given the coexistence of these various limitation provisions, it is apparent that the Legislature recognized the continuing existence and viability of the common-law discovery rule and saw fit to limit it in certain instances (§§ 5838 and 5838a), but not in all instances. Specifically,
(1) A person shall not bring or maintain an action to recover damages for injuries to persons or property unless, after the claim first accrued to the plaintiff or to someone through whom the plaintiff claims, the action is commenced within the periods of time prescribed by this section.
(10) The period of limitations is 3 years after the time of the death or injury for all other actions to recover damages for the death of a person, or for injury to a person or property.
Ultimately, if plaintiff is denied her day in court on the basis of the majority’s interpretation of
The general power of the legislature to pass statutes of limitation is not doubted. The time that these statutes shall allow for bringing suits is to be fixed by the legislative judgment, and where the legislature has fairly exercised its discretion, no court is at liberty to review its action, and to annul the law, because in their opinion the legislative power has been unwisely exercised. But the legislative authority is not so entirely unlimited that, under the name of a statute limiting the time within which a party shall resort to his legal remedy, all remedy whatsoever may be taken away. A statute which forbids any suit for the recovery of lands is not a statute of limitations, but a statute to pass to adverse possessors the title of all other claimants; and its validity cannot depend upon the name bestowed upon it. It is of the essence of a law of limitation that it shall afford a reasonable time within which suit may be brought; and a statute that fails to do this cannot possibly be sustained as a law of limitations, but would be a palpable violation of the constitutional provision that no person shall be deprived of properly without due process of law. [Price v Hopkin,13 Mich 318 , 324-325 (1865) (citations omitted).]
More recently, this Court cited Price to support this Court’s long history of applying the discovery rule when a statute of limitations would wrongfully deprive a plaintiff of a reasonable time in which to bring a claim:
A statute of limitation should provide plaintiffs with a reasonable opportunity to commence suit. For over one hundred years, this Court has sought to fulfill this purpose, construing statutes accordingly.
Our adherence to this principle resulted in our holding that the term “wrong,” as stated in the accrual statute, designated the date on which the plaintiff was harmed by the defendant’s negligent act, as opposed to the date the defendant acted negligently Connelly v Paul Ruddy’s Equipment Repair & Service Co,388 Mich 146 ;200 NW2d 70 (1972). Necessity dictated such a conclusion because an opposite interpretation could potentially bar a plaintiffs legitimate cause of action before the plaintiffs injury
Similarly, because statutes of limitation do not evidence a legislative intent to extinguish a cause of action before the plaintiff is aware of the possible cause of action, we have adopted the discovery rule in the appropriate instances. Last term, in Moll, supra at 13, we held that the discovery rule controls the date a pharmaceutical products liability action accrues. “If the three-year period of limitation began to run at the time of the defendant’s breach, most, if not all, claims would be barred before the plaintiff had reason to know of the injury and the cause of the injury Such an interpretation seeks ‘to declare the bread stale before it is baked.’ ” (Citation omitted.) The same reasoning compelled our application of the discovery rule to products liability actions premised on asbestos related injuries, Larson, supra. In Southgate School Dist v West Side Construction Co, 399 Mich 72 , 82;247 NW2d 884 (1976), we held that the discovery rule governs the date a breach of warranty claim accrues, providing plaintiffs with an adequate opportunity to bring suit. See also Williams v Polgar,391 Mich 6 ;215 NW2d 149 (1974) (the discovery rule governs the accrual of negligent misrepresentation cases), and Dyke v Richard,390 Mich 739 ;213 NW2d 185 (1973) (the discovery rule governs the accrual of medical malpractice cases).
The majority opinion disputes the applicability of Price, yet this Court adopted the rationale from Price in both Moll and Chase on the basis that in each case, where the plaintiff was not aware of the injury or its cause, the discovery rule was appropriately invoked to permit the plaintiff to go forward on an otherwise time-barred claim. A statute of limitations that effectively deprives a plaintiff of the substantive right to bring an action is unreasonable.
CONCLUSION
As a result of the majority’s conclusion that
Because I disagree with the majority’s conclusion that with the enactment of the Revised Judicature Act, the Legislature sought to abrogate the discovery rule, I would affirm the Court of Appeals decision applying the common-law discovery rule and tolling the period of limitations where plaintiff could not have reasonably discovered the elements of a wrongful death cause of action within the limitations period.
Johnson v Caldwell,
Id. at 466.
MFO was formed in 1969 to attend to the financial and personal needs of Ruth Mott, her children, and her nieces and nephews.
Gorton was apprehended in Florida and sentenced to life in prison on February 13, 2003, after pleading no contest to first-degree murder,
With regard to her claims against Buckler and the Gortons for negligent hiring and negligent supervision, plaintiff alleged that in 1985, a year before Gorton killed Dr. Eby, Gorton’s parents were aware that Gorton had just been released from a Florida prison after serving time for assault crimes. Evidently Jeffrey Gorton had a history of violence against women, and his felony convictions in Florida involved physical assaults on women.
His paternal grandparents even appeared for his sentencing in Florida and begged the judge to permit Gorton to get psychiatric help for his violent outbursts against women. Yet, despite this knowledge, the Gortons employed their son in the family business and sent him to service the sprinklers at the Mott Estate.
Plaintiff suggests that when Nyberg and Bakos gave Gorton access on November 5, they failed to resecure the gatehouse basement access so that Gorton was then later able to enter the gatehouse on November 7 through the unlocked basement door.
Trentadue v Buckler Automatic Lawn Sprinkler Co,
Connelly v Paul Ruddy’s Equip Repair & Service Co,
Stephens, supra at 539, quoting Connelly, supra at 150.
Hoerstman, supra at 74.
Id.
Id.
Millross, supra at 185-186.
If a person who is or may be liable for any claim fraudulently conceals the existence of the claim or the identity of any person who is hable for the claim from the knowledge of the person entitled to sue on the claim, the action may be commenced at any time within 2 years after the person who is entitled to bring the action discovers, or should have discovered, the existence of the claim or the identity of the person who is hable for the claim, although the action would otherwise be barred by the period of limitations.
This Court discussed fraudulent concealment in Int’l Union United Auto Workers v Wood,
Fraudulent concealment was defined in De Haan v. Winter,258 Mich 293 , 296[;241 NW 923 (1932), superseded by statute on other grounds Morgan v Taylor,434 Mich 180 (1990)], as meaning the “employment of artifice, planned to prevent inquiry or escape investigation, and mislead or hinder acquirement of information disclosing a right of action. The acts rehed on must be of an affirmative character and fraudulent.”
Fraudulent concealment is more than mere silence. McNaughton v. Rockford State Bank,261 Mich 265 , 268[;246 NW 84 (1933)].
. . . Concealment by one other than the one sought to be charged is not within the prohibition of the statute. See Stevenson v. Robinson,39 Mich 160 [1878],
While the majority asserts incorrectly that the fraudulent concealment statute is “subsumed,” ante at 399, by the discoveiy rule because the discoveiy rule encompasses both fraudulent concealment claims and non-fraudulent concealment claims, the fact that the discovery rule has a broader application than the fraudulent concealment statute does not mean that the Legislature sought to allow the use of the discoveiy rule only with respect to fraudulent concealment claims. Nor does the continued existence of the discoveiy rule vitiate the fraudulent concealment statute, which merely represents the Legislature’s decision to specify how the common-law discovery rule applies to fraudulent concealment claims.
Chase v Sabin,
Taxpayers Allied for Constitutional Taxation v Wayne Co,
While the Taxpayers Court upheld the one-year statute of limitations at issue, what is notable about that decision is the fact that the Court acknowledged that when a limitations period effectively deprives a plaintiff of judicial access, it will not be upheld. That is the very situation we face here if this Court deprives plaintiff of the right to apply the common-law discovery rule.
Dissenting Opinion
(dissenting). In this wrongful death action, the majority frames the issue as whether the common-law discovery rule tolls the statutory period of limitations or whether
I strongly disagree with this decision for three reasons. First,
FACTS
This case arises from the murder of Mrs. Margarette Eby. From 1981 to 1986, she rented the gatehouse on the Mott Estate (Applewood) where she was found dead on November 9, 1986.
During that five-year period, Mrs. Eby experienced occasional break-ins at the gatehouse and complained about them to Ruth Mott. Ruth Mott was Mrs. Eby’s landlord. She also lived at Applewood. Mrs. Mott’s affairs were handled by the MFO (Mott Family Office) Management Company, which acted on her behalf in virtually every aspect of her business and personal life, including Applewood. The responses that Mrs. Eby received from letters written to Mrs. Mott in 1986 regarding break-ins at the gatehouse was typified by the following:
While Mrs. Mott regrets the occurrence of last Wednesday night, it seems apparent that no system would have prevented your loss when the keys to make the system effective were left in your unlocked car in front of the house. Further, when you leave the gate open frequently and fail to provide visual security through drags, curtains or blinds, unnecessary temptation to unwelcome intruders is evident.
On November 7, 1986, Mrs. Eby attended a dinner party with three friends. Two of them accompanied her home, arriving at Applewood sometime after 11:00 p.m. Mrs. Eby’s companions observed her attempt to unlock the front door. When she was unable to do so, she asked her friends to walk her to the side door. She was able to open the side door and her companions saw her lock the door before they left.
Two days later, the gatehouse door was found open. What was discovered inside has been described by the Flint Police Department officers who arrived at the scene as perhaps the most gruesome murder scene they had ever encountered. Mrs. Eby’s body was found in her upstairs bedroom. She had been attacked, raped, and knifed to death.
The physical evidence provided little of value. Besides a partial fingerprint on a bathroom faucet, the police uncovered virtually nothing to link the crime to a particular individual. As a result, it appears that the Flint Police Department pursued the only theory that seemed to suit the murder scene, that Mrs. Eby voluntarily allowed the killer into her home. However, because Mrs. Eby had not been killed by an acquaintance, this theory proved fruitless. It is unclear why the police never considered that a complete stranger might have been Mrs. Eby’s killer.
What no one knew at the time was that the MFO had given the killer, Jeffrey Gorton, access to the common area beneath Mrs. Eby’s home. Gorton was a lawn service employee of Buckler Automatic Lawn Sprinkler Company (Buckler). Two days before Mrs. Eby was raped and murdered,
Gorton was first identified as a suspect when, about 16 years later, Mrs. Eby’s son recognized the similarities between his mother’s murder and the murder of Northwest Airlines flight attendant Nancy Ludwig. Alerted to the similarities, the police eventually conducted deoxyribonucleic acid (DNA) testing on evidence collected from both victims. It showed that the same man killed both women. The fingerprint found on the faucet was also reexamined, and more sophisticated fingerprint techniques revealed that it belonged to Jeffrey Gorton, who was then living in Florida. A police surveillance operation resulted in gathering a DNA sample from Gorton that matched the samples retrieved from both victims.
On February 8, 2002, Jeffrey Gorton was arrested and charged with murder. On January 6, 2003, he pleaded no contest to a charge of murdering Mrs. Eby more than 16 years earlier. He is currently serving a life sentence for the crime.
On August 2, 2002, Mrs. Eby’s estate filed a wrongful death complaint against Mrs. Mott’s estate (Mrs. Mott died in 1999), the MFO, MFO employees Todd Bakos and Victor Nyberg, Buckler, Jeffrey Gorton, and Gorton’s parents, Shirley and Laurence Gorton, who owned and operated Buckler. In the complaint, plaintiff alleged that (1) Jeffrey Gorton killed plaintiffs decedent, (2) Mrs. Mott, the MFO, Bakos, and Nyberg gave Jeffrey Gorton unsupervised access to the decedent’s home, (3) Mott and the MFO were responsible on a respondeat superior theory for the negligence of Bakos and Nyberg, (4) Mrs. Mott and the MFO had a duty but failed to provide adequate security for the residence despite the decedent’s repeated requests for it and notice of prior criminal activity at the site, (5) Buckler and Shirley and Laurence Gorton breached their duty to conduct adequate employment investigations to determine if prospective employees presented any danger, (6) Shirley and Laurence Gorton failed to supervise Jeffrey when they knew or should have known he was a threat, (7) and Shirley and Laurence Gorton had respondeat superior liability because they put Jeffrey in a position to rape and kill the decedent.
Each defendant, except Jeffrey Gorton, filed a motion for summary disposition, arguing that the claims were barred by the statute of limitations. Genesee Circuit Judge Robert M. Ranson ruled on the motions on October 28, 2003. With the exception of the claim against the MFO and Mrs. Mott’s estate that were premised on a generalized duty to keep Mrs. Eby safe, the motions were denied. The trial court ruled that, because plaintiff did not know who killed Mrs. Eby before 2002, plaintiff did not know that someone had breached a duty. Hence, plaintiff lacked knowledge of the causation component of the claims until 2002.
The Court of Appeals granted defendants’ applications for leave to appeal. In a unanimous, published opinion, the Court affirmed the part of the trial court’s decision that denied defendants’ motions for summary disposition. But it reversed the part that granted summary disposition to the MFO and Mrs. Mott’s estate on the claim alleging failure to provide adequate security. Trentadue v Buckler Automatic Lawn Sprinkler Co,
This Court granted defendants’ applications for leave to appeal, directing the parties “to include among the issues to be briefed whether the Court of Appeals application of a common-law discovery rule to determine when plaintiffs claims accrued is inconsistent with or contravenes
STANDARD OF REVIEW
In the absence of disputed facts, whether a cause of action is barred by a statute of limitations is a question of law that we review de novo. Boyle v Gen Motors Corp,
This Court asked the parties to answer whether the common-law discovery rule conflicts with
Except as otherwise expressly provided, the period of limitations runs from the time the claim accrues. The claim accrues at the time provided in sections 5829 to 5838, and in cases not covered by these sections the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results.
In deciding that the common-law discovery rule conflicts with § 5827, a majority of this Court errs by deciding that § 5827 applies to plaintiffs claims. Because I find that § 5827 is not implicated by this case, I conclude that this Court overreaches and unnecessarily decides that the common-law discovery rule is inapplicable when § 5827 applies.
All tort causes of action are governed by a statute of limitations.
The period of limitations is 3 years after the time of the death or injury for all other actions to recover damages for the death of a person, or for injury to a person or property.
Subsection 10 differs from the other subsections of § 5805. The other subsections provide a specific period during which a case must be filed. But they do not provide an accrual period.
Given that § 5805(10) contains its own accrual provision, whenever § 5805(10) is
THIS COURT SHOULD NOT OVERRULE ITS OWN PRIOR DECISIONS RECOGNIZING THE COMMON-LAW DISCOVERY RULE
As demonstrated earlier in this opinion,
THE ROBINSON FACTORS
The Robinson factors are used to determine when it is appropriate to overrule the precedent of this Court. The first is whether the earlier decision was wrongly decided. Robinson,
The first question, therefore, is whether this Court’s prior decisions recognizing the common-law discovery rule were wrongly decided. The majority claims that the language of
The common-law discovery rule has been a part of Michigan limitations law for many years and has been applied in a variety of contexts.
More importantly § 5838 and § 5838a represent legislative acceptance of the discovery rule. By specifically limiting the discovery rule in professional negligence cases, the Legislature has implicitly acknowledged the applicability of the rule in other types of cases. As a result, in professional negligence cases, a plaintiff may no longer claim the benefit of the common-law discovery rule. But the Legislature has not prohibited application of the rule outside the areas addressed in § 5838 and § 5838a.
Given that the actions of the Legislature strongly suggest its approval of most of this Court’s prior decisions recognizing the common-law discovery rule, the rule should not be discarded. However, even if one believes that earlier cases applying the rule were wrongly decided, it does not follow that these cases must be overruled. Robinson,
Before jettisoning precedent, this Court must determine “whether overruling such decision would work an undue hardship because of reliance interests or expectations that have arisen.” Robertson v DaimlerChrysler Corp,
This Court has recognized a fundamental right of access to courts for a great many years. As it stated in 1877, “[ejvery man is entitled to his day in court before his rights can be finally disposed of, and even the Legislature could not deprive him of the right.” Ehlers v Stoeckle,
The general power of the legislature to pass statutes of limitation is not doubted. The time that these statutes shall allow for bringing suits is to be fixed by the legislative judgment, and where the legislature has fairly exercised its discretion, no court is at liberty to review its action, and to annul the law, because in their opinion the legislative power has been unwisely exercised. But the legislative authority is not so entirely unlimited that, under the name of a statute limiting the time within which a party shall resort to his legal remedy; all remedy whatsoever may be taken away.... It is of the essence of a law of limitation that it shall afford a reasonable time within which suit may be brought. [Price v Hopkin,13 Mich 318 , 324 (1865).]
The discovery rule, based on principles of fundamental fairness, “ ‘was formulated to avoid the harsh results produced by commencing the running of the statute of limitations before a claimant was aware of any basis for an action.’ ” Stephens v Dixon,
Elimination of the common-law discovery rule will have a drastic, adverse effect on plaintiffs’ rights in Michigan. Cutting off plaintiffs’ actions before plaintiffs even know they have a cause of action is the very definition of a “practical real-world dislocation.” And people will lose confidence in the courts when they learn that the courts deny them compensation for their injuries simply because it took too long to discover their causes of action.
Aside from the real-world dislocation created by abolishing the common-law discovery rule, there are other factors to consider in determining whether to overrule the prior decisions of this Court. They include whether the decisions defy practical workability and whether changes in the law or the facts no longer justify the questioned precedents. Robinson,
It is the majority’s decision to abolish the common-law discovery rule that threatens to defy practical workability by leading to absurd results and constitutional violations. This Court has held that “[sjtatutes should be construed so as to prevent absurd results, injustice or prejudice to the public interest.” McAuley v Gen Motors Corp,
Moreover, given this Court’s decision in Henry v Dow Chemical Co,
Except in topsy-turvy land you can’t die before you are conceived, or be divorced before ever you marry, or harvest a crop never planted, or hurn down a house never built, or miss a train running on a non-existent railroad. For substantially similar reasons, it has always heretofore been accepted, as a sort of legal “axiom,” that a statute of limitations does not begin to run against a cause of action before that cause of action exists, i.e., before a judicial remedy is available to the plaintiff. For a limitations statute, by its inherent nature, bars a cause of action solely because suit was not brought to assert it during a period when the suit, if begun in that period, could have been successfully maintained; the plaintiff, in such a case, loses for the sole reason that he delayed — beyond the time fixed by the statute — commencing his suit which, but for the delay, he would have won. [Dincher v Marlin Firearms Co, 198 F2d 821, 823 (CA 2, 1952) (Frank, J., dissenting).]
Today’s decision to abolish the discovery rule also raises constitutional questions regarding the extent of the Legislature’s authority to enact statutes of limitations. The Legislature can, if it chooses, completely eliminate common-law causes of action.
In Dyke, this Court prohibited a statute of limitations from extinguishing a right to bring suit before reasonable discovery of the cause of action was possible. The Court explained:
Since “[i]t is of the essence of a law of limitation that it shall afford a reasonable time within which suit may be brought...”, Price, supra, a statute which extinguishes the right to bring suit cannot be enforced as a law of limitation. As to a person who does not know, or in the exercise of reasonable diligence could not ascertain within the two year period that he has a cause of action, this statute has the effect of abolishing his right to bring suit.
Such a statute, if sustainable at all could be enforced only as one intended to abolish a common law cause of action. But this statute does not purport to do this, is not asserted to do so, and we cannot ascribe any legislative intention to accomplish that end. We read it as a statute of limitation which applies in every case except where the plaintiff does not know of his cause of action. [Dyke,390 Mich at 746-747 .]
And this Court has also held that a limitations provision that does not afford a reasonable time to file suit cannot be constitutionally upheld, because it prevents access to the courts. Forest v Parmalee
In certain circumstances, the common-law discovery rule is necessary to ensure that plaintiffs have had a reasonable time to gain knowledge of their causes of action. By abrogating this rule, the majority decision raises serious constitutional questions. These constitutional concerns counsel in favor of retaining the discovery rule.
This Court, like most, has long recognized the value of stare decisis. Its decisions applying the common-law discovery rule should be upheld under that doctrine because (1) the decisions recognizing the rule were correctly decided, (2) a change in the discovery rule would have a drastic effect on plaintiffs’ rights, (3) the discovery rule is workable, and (4) abolishing the rule will lead to constitutional violations as well as absurd and unjust results.
A majority of this Court decides that the common-law discovery rule is inapplicable when
All actions and rights shall be governed and determined according to the law under which the right accrued, in respect to the limitations of such actions or right of entry.
The majority finds that “plaintiffs claims accrued at the time of Eby’s death.” Ante at 407. Mrs. Eby was murdered in 1986. At that time, this Court recognized the common-law discovery rule. Thus, as of 1986, the law in this state was that the cause of action did not accrue until “all of the elements of the cause of action have occurred and can be alleged in a proper complaint.” Connelly v Paul Ruddy’s Equip Repair & Service Co,
APPLICATION OF THE COMMON-LAW DISCOVERY RULE TO THE FACTS OF THE CASE
Under the common-law discovery rule, a claim accrues when, on the basis of objective
Here, it was not until after Jeffrey Gorton was arrested that plaintiff found out that Mrs. Eby’s killer was a stranger. Plaintiff could not have alleged a breach of duty against any of the defendants before knowing that a stranger, Gorton, had killed Mrs. Eby. Therefore, it was not until Gorton was identified as the killer that the period of limitations began to run. Because plaintiff filed suit within three years of the identification of Gorton as the killer, plaintiffs claims are timely.
CONCLUSION
With today’s decision, the majority throws Michigan into topsy-turvy land, where a person’s legal claim dies before it is born. The majority finds that plaintiffs tort cause of action disappeared before plaintiff could discover the tortfeasor. As a result, the judgment of the Court of Appeals has been reversed.
I disagree with this decision on numerous grounds.
Examples of these other subsections illustrate this point: § 5805(2) specifies only that “[t]he period of limitations is 2 years for an action charging assault, battery, or false imprisonment.” Similarly, § 5805(5) provides that “the period of limitations is 2 years for an action charging malicious prosecution.”
The majority recognizes that
Apparently, the majority deems it appropriate to decide whether the discovery rule can save a claim when
See the discussion of this Court’s recognition of the fundamental right of access to the courts on pages 442-443 of this dissent.
The four justices who are in the majority in this case were also in the majority in Robinson. Looking back, one must question the majority’s statement in Robinson that stare decisis is generally “ ‘the preferred course.’ ” Id. at 463 (citation omitted). This majority has never relied on the doctrine to uphold a prior decision of this Court.
The majority attempts to turn the argument around and questions “whether [my] ongoing criticism truly concerns [their] attitudes toward precedent or merely [my] attitude toward specific previous decisions of the Court.” Ante at 394 n 16. In support of this allegation, the majority cites my opinion in People v Smith,
Rather than look to Smith and Haynes, the majority would do better to look to my recent opinions in Liss v Lewiston-Richards, Inc,
In Liss I stated, “[Gjiven the language and purpose of the [Michigan Consumer Protection Act,
See, e.g., Johnson v Caldwell,
The majority claims that there is no “reason to equate the Legislature’s ‘approval of the rule’ — by its codification of some of this Court’s uses of the rule — with the Legislature’s approval of every application of the rule.” Ante at 395. Yet the well-established maxim of expressio unius est exclusio alterius, which this majority has often invoked in deciding cases, states that the Legislature’s mention of one thing implies the exclusion of all others. E.g., Miller v Chapman Contracting,
The majority implies that
The majoriiy claims that
In addition to Michigan, 35 states plus the District of Columbia have embraced the discovery rule. See, e.g., Alaska: Hanebuth v Bell Helicopter Int'l,
Bean v McFarland,
Lothian v Detroit,
The majority claims that § 5869 cannot save plaintiffs claim because the statutory law has not changed since 1986. This fact is irrelevant. Section 5869 states that “[a]ll actions and rights shall be governed and determined according to the law under which the right accrued....” This section is not confined to statutory provisions. Rather, § 5869 includes all law. It is well established that the law includes the common law. E.g., People v Blume,
The majority also claims that I present no authority or explanation for why the discovery rule is applicable. Ante at 400. In fact, I have made such a presentation. I will recap it here: