Fazzalare v. Desa Industries, Inc.

• Decision Date: 02 August 1984
• Docket Number: Docket No. 65983
• Citation: 351 N.W.2d 886,135 Mich.App. 1
• Parties: Frank FAZZALARE and Mary Jane Fazzalare, Plaintiffs-Appellees, v. DESA INDUSTRIES, INC., Defendant-Appellant, and Turf Supplies, Inc., and Renter Center, Inc., Defendants. 135 Mich.App. 1, 351 N.W.2d 886
• Court: Court of Appeal of Michigan — District of US

Page 886

351 N.W.2d 886

Frank FAZZALARE and Mary Jane Fazzalare Plaintiffs-Appellees, v. DESA INDUSTRIES, INC., Defendant-Appellant and Turf Supplies, Inc., and Renter Center, Inc., Defendants.

Docket No. 65983.

135 Mich.App. 1, 351 N.W.2d 886

Court of Appeals of Michigan.

Submitted June 7, 1983.

Decided June 4, 1984.

Released for Publication Aug. 2, 1984.

[135 MICHAPP 3] Anthony & Hearsch by Robert J. Seibert, Mount Clemens, for plaintiffs-appellees.

Martin, Bacon & Martin, P.C. by Michael R. Janes, Mount Clemens, for defendant-appellant on appeal.

Before WALSH, P.J., and BEASLEY and SULLIVAN, ^* JJ.

WALSH, Presiding Judge.

The facts in this case are adequately set out in the dissenting opinion.

In our judgment, the holding of the dissent is at odds with the well-established principle that, once all of the elements of a cause of action have occurred, the running of the statutory period of limitation is not delayed until the claimant becomes aware of the identity of the alleged tortfeasor.[135 MICHAPP 4] Thomas v. Ferndale Laboratories, Inc., 97 Mich.App. 718, 296 N.W.2d 160 (1980).

The dissent places much reliance on O'Keefe v. Clark Equipment Co., 106 Mich.App. 23, 307 N.W.2d 343 (1981). The O'Keefe panel cited, and applied, the "rule" set forth by this Court in Charpentier v. Young, 83 Mich.App. 145, 149-150, 268 N.W.2d 322 (1978):

"We, therefore, conclude that whether a party seeking to add parties to the litigation has complied with the court rules so as to entitle him to suspend the running of an applicable statute of limitations in favor of an added party, is for determination in the first instance by the trial court. An added party may obtain the trial court's review of the circumstances leading up to the filing of the amended complaint by filing a motion for accelerated judgment based upon the statute of limitations. The trial court may then review de novo the procedural steps taken by the amending party to assure that dilatory tactics have not unjustly deprived the added party of his legitimate statute of limitations defense. It is then within the discretion of the trial court to grant or deny the motion based upon his evaluation of the circumstances in each case."

Concurring in the result, Judge Riley expressed the view in Charpentier that a more definite rule would be preferable to the majority's general discretion standard:

"A statute of limitations is primarily a technical counting process which provides some measure of security to the parties in regard to when the statutory bar goes into effect. A possible rule would be that the statute be tolled for the amount of time the court takes to decide on a motion to amend if that delay extends beyond the date on which the original limitations period would end. The problem of dilatory actions to [135 MICHAPP 5] increase this delay could be handled by the trial court's vigilance over its motion docket." 83 Mich.App. 152, 268 N.W.2d 322.

The Supreme Court reversed in Charpentier:

"Leave to appeal considered November 30, 1978, and, pursuant to GCR 1963, 853.2(4), in lieu of leave to appeal, the Court of Appeals is reversed, the trial court's accelerated judgments in favor of defendants-appellees are set aside, and the case is remanded to the trial court for further proceedings. The statute of limitations was tolled for 21 days, from March 10 to March 31, 1976, the time during which the motion to amend complaint and add parties defendant was pending, plaintiffs having demonstrated due diligence by seeking a decision on their motion within three weeks." 403 Mich. 851, 291 N.W.2d 926 (1978).

In this case, the dissent states: "I am unable to ascertain from the brief order how much of the Charpentier rationale is reversed and to what matters the test of due diligence is to be applied." Our reading of the Supreme Court's order, however, persuades us that the Supreme Court rejected the general discretion standard of this Court's Charpentier majority. See Moore v. Flower, 108 Mich.App. 214, 217, 310 N.W.2d 336 (1981) ¹:

"We see, as did Judge Riley in her concurrence in Charpentier, supra, a serious problem with permitting the trial court to extend a defendant's liability depending on whether the trial court, in its discretion, finds that a plaintiff exercised diligence in attempting to join that defendant. 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 [135 MICHAPP 6] 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 to add parties or amend the complaint is pending in the trial court."

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 interrupted by the filing of such a complaint. The Supreme Court has identified the purposes served by statutes of limitation:

"Statutes of limitations are intended to 'compel the exercise of a right of action within a reasonable time so that the opposing party has a fair opportunity to defend'; 'to relieve a court system from dealing with "stale" claims, where the facts in dispute occurred so long ago that evidence was either forgotten or manufactured'; and to protect 'potential defendants from protracted fear of litigation'." Bigelow v. Walraven, 392 Mich. 566, 576, 221 N.W.2d 328 (1974), citing 51 Am Jur 2d, Limitation of Actions, Sec. 17, pp. 602-603.

Would-be plaintiffs must diligently investigate potential claims within the time frames established by the Legislature. Defendants are entitled to notice of claims within the applicable statutory limitation period. See Meda v. City of Howell, 110 Mich.App. 179, 312 N.W.2d 202 (1981).

Reversed.

SULLIVAN, J., concurred.

BEASLEY, Judge (dissenting).

The following opinion, originally circulated as a proposed majority opinion, is now filed as a dissenting opinion.

Defendant Desa Industries, Inc. filed a motion [135 MICHAPP 7] for accelerated judgment, claiming that the products liability action brought by plaintiffs, Frank and Mary Jane Fazzalare, was barred by the three-year statute of limitations provided in M.C.L. Sec. 600.5805(8); M.S.A. Sec. 27A.5805(8). From denial of the motion, defendant Desa appeals by leave granted. ¹

In a complaint filed on August 31, 1981, plaintiffs claimed that plaintiff Frank Fazzalare sustained serious injuries to his left forearm on September 2, 1978, when the chain on an electric power saw that he was operating became dislodged. Plaintiffs included as defendants Renter Center, Inc., a retail outlet which leased the saw to plaintiffs, ABC Distributor, a wholesale company which sold it to Renter Center, and John Doe Manufacturing, an unknown company which manufactured the electric power saw.

Along with their complaint, plaintiffs filed a motion for leave to amend the complaint, which was noticed for hearing on September 18, 1981. The purpose of this motion was to advise the trial court of plaintiffs' efforts to identify the manufacturer. On September 15, 1981, the deposition of Patrick Morrow, president of defendant Renter Center, was taken. Unable to ascertain with certainty which of several possible companies manufactured the chain saw in question, plaintiffs voluntarily dismissed their motion to amend the complaint. ² On November 11, 1981, while inspecting Renter Center's inventory under a court order, plaintiffs discovered that Desa manufactured the saw in question. On February 8, 1982, plaintiffs [135 MICHAPP 8] filed a stipulation granting them leave to file an amended complaint, which was filed on February 16, 1982. On February 25, 1982, plaintiffs served an amended complaint upon defendant Desa Industries, claiming that Desa was liable as the manufacturer of the offending electric power saw. Claiming that plaintiffs' action was barred by the statute of limitations, defendant Desa moved for accelerated judgment.

While recognizing that an amendment to a pleading does not relate back to the original filing date of the case for purposes of adding a new defendant when the period of limitation has otherwise expired as to the new defendant, the trial court, attempting to alleviate the harsh effect of applying the statute of limitations to deprive plaintiffs of their day in court against the manufacturer, held that plaintiffs had exercised due diligence and, thus, their cause of action against defendant Desa was not barred:

"Under the totality of the circumstances, this Court finds that plaintiffs have been diligent in their attempts to ascertain the appropriate parties and follow the appropriate procedural steps. The Court further finds that the added defendants have not been deprived of a legitimate statute of limitations defense by dilatory tactics. In the Court's judicial discretion, the statute of limitations was suspended as to the added defendant's so that the amended complaint was within the statute of limitations. Accordingly, defendant's motion for accelerated judgment is DENIED."

As indicated, in the complaint filed in the within case, plaintiffs asserted a claim against the manufacturer of the chain saw. Not knowing the name of the manufacturer, plaintiffs described the manufacturer as John Doe Corporation. Thus, at the outset, this case requires consideration of the legal [135 MICHAPP 9] effect on the statute of limitations of the use of John Doe defendants in products liability cases.

Under the common law, it was essential that a person's name appear in the complaint before he could be made a defendant in an action. ³ In general, the rule has been that absent a statute, the inclusion of John Doe defendants is not permitted. ⁴

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