Colbert v. Conybeare Law Office

• Decision Date: 19 April 2000
• Docket Number: Docket No. 211467.
• Citation: 239 Mich. App. 608,609 N.W.2d 208
• Parties: Kevin Kenneth COLBERT, Plaintiff-Appellant, v. CONYBEARE LAW OFFICE and Bruce C. Conybeare, Defendants-Third-Party Defendants-Appellees, and Linda Sue Henley, f/k/a Linda Sue Colbert, Third-Party Plaintiff-Appellee.
• Court: Court of Appeal of Michigan — District of US

609 N.W.2d 208

239 Mich. App. 608

Kevin Kenneth COLBERT, Plaintiff-Appellant, v. CONYBEARE LAW OFFICE and Bruce C. Conybeare, Defendants-Third-Party Defendants-Appellees, and Linda Sue Henley, f/k/a Linda Sue Colbert, Third-Party Plaintiff-Appellee.

Docket No. 211467.

Court of Appeals of Michigan.

Submitted December 15, 1999, at Grand Rapids.

Decided February 4, 2000, at 9:15 a.m.

Released for Publication April 19, 2000.

Law Office of Thomas A. Geelhoed (by Thomas A. Geelhoed), Grand Rapids, for the plaintiff.

Farr & Oosterhouse (by William S. Farr and John R. Oostema), Grand Rapids, for the defendants.

Before FITZGERALD, P.J., and HOEKSTRA and MARKEY, JJ.

PER CURIAM.

Plaintiff appeals by right from the trial court's order granting summary disposition to defendants pursuant to MCR 2.116(C)(10) with regard to plaintiff's claims of legal malpractice and breach of contract. We affirm.

I

On June 23, 1992, plaintiff was involved in a motor vehicle accident in which he sustained serious injuries. As a result of his injuries, plaintiff was unable to return to work. At the time of the accident, plaintiff was employed by a construction company as a heavy equipment operator and was on his way to a job site when the accident occurred. Plaintiff was driving his own vehicle at the time of the accident, but in the vehicle he had an electric drill that a superintendent for the construction company had asked plaintiff to carry back and forth for use on the job site. The superintendent, who was also a volunteer fireman and a son of the company owner, was called to the scene of the accident, helped extricate plaintiff from the wreckage, and later retrieved the electric drill from plaintiff's vehicle. The company owner also came upon the scene of the accident on his way to work and saw plaintiff in the wreck.

Two days after the accident, plaintiff filed a claim with his automobile insurer for first-party benefits under the no-fault automobile insurance act, M.C.L. § 500.3101 et seq.; MSA 24.13101 et seq. He began receiving the benefits shortly thereafter and continued to receive them until June 1995.¹ Plaintiff also applied for social security disability benefits, which he has been receiving on a monthly basis since December 1992.

On July 8, 1992, plaintiff retained defendants to represent him in claims and legal proceedings arising out of the accident, including a third-party claim under the no-fault act against the driver responsible for the accident, a potential worker's compensation claim, and medical malpractice claims arising from plaintiff's injuries. Defendants assisted plaintiff in settling the third-party claim for the amount of the other driver's policy limits. In a letter to plaintiff dated September 28, 1992, defendants informed plaintiff that they would not represent him in a possible medical malpractice action and advised him of the statute of limitations applicable to such a claim. Defendants also advised plaintiff that he could not successfully bring a worker's compensation claim because he was "simply on [his] way to work" at the time of the accident. Defendants stated that the fact that plaintiff was carrying tools owned by his employer at the time of the accident did not make his injuries work related. Defendants did not advise plaintiff of the time limitations for filing a worker's compensation claim.

Plaintiff subsequently retained different counsel and did file a claim for worker's compensation benefits. The claim was filed on December 28, 1994, approximately 2½ years after the accident. In January 1996, plaintiff settled the worker's compensation claim for a lump-sum payment of $215,000. Plaintiff then sued defendants for legal malpractice and breach of contract, alleging that defendants' erroneous advice regarding the viability of a worker's compensation claim deprived him of the opportunity to pursue his worker's compensation claim in a timely manner.² Plaintiff alleged that his ability to obtain worker's compensation benefits as a result of the accident was compromised because the delay in filing his claim resulted in a loss of plaintiff's bargaining leverage in settlement negotiations with his employer and insurer that led to a settlement that was less than plaintiff could have received had his claim been timely filed. Plaintiff further alleged that he was damaged by the loss of opportunity to pursue his worker's compensation claim, the loss of rights to receive worker's compensation benefits, the delay in receiving worker's compensation benefits, and mental anguish and other unspecified damages.

Defendants moved for summary disposition pursuant to MCR 2.116(C)(10) with regard to plaintiff's claim of legal malpractice. Defendants argued that plaintiff could not establish the element of proximate cause because, as matter of law, plaintiff's injuries were not work related, and plaintiff therefore had no worker's compensation claim. Defendants further argued that even if plaintiff did have such a claim, it was timely filed, and plaintiff's allegation that he had to settle his claim for less because it was not timely filed was thus without basis and there were no resulting damages.

The trial court found that although there were questions of fact concerning whether plaintiff's injury was work related, defendants were nevertheless entitled to summary disposition. The court determined that plaintiff's worker's compensation claim was timely filed because the applicable period of limitation in M.C.L. § 418.381(1); MSA 17.237(381)(1) was tolled while plaintiff received social security benefits.³ The court also determined that plaintiff had presented no evidence of actual damages resulting from the alleged malpractice of defendants. The court granted plaintiff leave to amend his complaint to plead specific statements of proximate cause and a specific statement of damages, but plaintiff did not amend his complaint and instead brought the instant appeal.

II

Plaintiff claims that the trial court erred in holding that his claim for worker's compensation benefits was tolled under subsection 381(1) of the Worker's Disability Compensation Act, M.C.L. § 418.381(1); MSA 17.237(381)(1). We agree with the trial court that plaintiff's worker's compensation claim was timely filed because the period of limitation in subsection 381(1) was tolled.

We conduct a review de novo of the trial court's grant of summary disposition. Coleman v. Kootsillas, 456 Mich. 615, 618, 575 N.W.2d 527 (1998). Whether a cause of action is barred by a statute of limitations is, absent disputed issues of fact, a question of law that we review under the same standard. Todorov v. Alexander, 236 Mich.App. 464, 467, 600 N.W.2d 418 (1999). The interpretation of statutes is also a question of law that we consider de novo. Oakland Co. Bd. of Co. Rd. Comm'rs v. Michigan Property & Casualty Guaranty Ass'n, 456 Mich. 590, 610, 575 N.W.2d 751 (1998).

The statute of limitations for filing a worker's compensation claim is set forth in subsection 381(1), which states:

A proceeding for compensation for an injury under this act shall not be maintained unless a claim for compensation for the injury, which claim may be either oral or in writing, has been made to the employer or a written claim has been made to the bureau [of worker's compensation] on forms prescribed by the director, within 2 years after the occurrence of the injury.... A claim shall not be valid or effectual for any purpose under this chapter unless made within 2 years after the later of the date of injury, the date disability manifests itself, or the last day of employment with the employer against whom claim is being made. If an employee claims benefits for a work injury and is thereafter compensated for the disability by worker's compensation or benefits other than worker's compensation, or is provided favored work by the employer because of the disability, the period of time within which a claim shall be made for benefits under this act shall be extended by the time during which the benefits are paid or the favored work is provided. [Emphasis added.]

Subsection 381(1) thus provides that a claim for worker's compensation is not valid unless made within two years of the date of injury, the date disability manifests itself, or the last date of employment. However, the last sentence of subsection 381(1) is a tolling provision that extends the time in which a claim for worker's compensation may be made in cases where an employee has already received compensation for the disability. Bieber v. Keeler Brass Co., 209 Mich.App. 597, 601, 531 N.W.2d 803 (1995). It is the last sentence of subsection 381(1) that is at issue here.

A

Plaintiff argues first that the two-year period of limitation was not tolled because, before he filed his worker's compensation claim, he did not categorize his injuries as work related.⁴ Plaintiff's argument is without merit.

An employee who receives a work-related injury has two duties: one is to give notice to his employer of the accident causing injury and, if the employer contests the employee's claim, the second is to show that the resulting injury is compensable. Norris v. Chrysler Corp., 391 Mich. 469, 477-478, 216 N.W.2d 783 (1974); Ratliff v. General Motors Corp., 127 Mich.App. 410, 420-421, 339 N.W.2d 196 (1983). Notice to the employer of the injury itself is generally sufficient if the employer has some independent knowledge of accompanying facts connecting the injury with the employment such that the case might involve a potential compensation claim. See Nicholson v. Lansing Bd. of Ed., 423 Mich. 89, 102, 103 & n. 3, 377 N.W.2d 292 (1985); Norris, supra at 477-478, 216 N.W.2d 783; Ratliff, supra at 421, 339 N.W.2d 196. A potential claimant's notice need not be given with a view to claiming worker's compensation as long as the employer is on notice of the injury and accompanying facts sufficient to enable the employer to make an...