Estate of Dale v. Robinson
| Decision Date | 22 July 2008 |
| Docket Number | Docket No. 269354.,Docket No. 269352.,Docket No. 269353. |
| Citation | 279 Mich. App. 676,760 N.W.2d 557 |
| Parties | ESTATE OF DALE v. ROBINSON. |
| Court | Court of Appeal of Michigan — District of US |
Before: SAWYER, P.J., and JANSEN and HOEKSTRA, JJ.
These consolidated appeals are before us for consideration as on leave granted. In Docket No. 269352, defendants Stephen William Robinson, Jr., M.D., and Second Opinion, P.C. (collectively "the Robinson defendants") appeal the trial court's order denying their motion for summary disposition. In Docket No. 269353, defendants Battle Creek Health System and Cancer Care Center (collectively "BCHS") appeal the same order denying their motion for summary disposition. In Docket No. 269354, defendants Peter Walter Barrett, M.D., Doctors Group, P.C., and Jin-Chul Kim, M.D. (collectively "the Barrett defendants"), also appeal the same order denying their motion for summary disposition. All defendants argue (1) that the complaint filed by plaintiff Dawn Merlone, the successor personal representative of the estate of C. Joyce Dale, was barred by the statute of limitations and (2) that Merlone did not properly commence this medical-malpractice action because she is not the same person who served the notice of intent on defendants. We affirm.
These appeals stem from the alleged misdiagnosis and mistreatment of cancer. Merlone's claims on behalf of the estate arise from the death of C. Joyce Dale, who was treated by defendants and at the defendant facilities in mid-2000. It is undisputed that Dale died on December 15, 2000.
The Calhoun County Probate Court issued letters of authority appointing R.J. Nunley as personal representative of Dale's estate on February 23, 2001. On February 19, 2003, Nunley served defendants with a notice of intent (NOI) to file a medical-malpractice claim. On August 15, 2003, Merlone (hereinafter "plaintiff" or "Merlone") was appointed successor personal representative of Dale's estate. On August 22, 2003, plaintiff filed a complaint, seeking to commence a medical-malpractice action against defendants.
In February 2005, the Barrett defendants moved for summary disposition pursuant to MCR 2.116(C)(7), arguing that the statute of limitations barred plaintiff's complaint. They contended that the NOI was not sent until after the period of limitations had expired and that there was consequently no time remaining to be tolled under MCL 600.5856. The Barrett defendants also argued that, pursuant to Waltz v. Wyse, 469 Mich. 642, 677 N.W.2d 813 (2004), the NOI did not toll the two-year wrongful-death saving period of MCL 600.5852, which affords personal representatives additional time in which to pursue a legal action on behalf of a decedent's estate. The Barrett defendants argued that Waltz applied retroactively.
BCHS then moved for summary disposition, concurring with the Barrett defendants' arguments. BCHS additionally argued that plaintiff's appointment as successor personal representative did not create an additional two-year period within which to file suit. BCHS attempted to distinguish Eggleston v. Bio-Medical Applications of Detroit, Inc., 468 Mich. 29, 658 N.W.2d 139 (2003), from the instant case on the ground that the first personal representative in Eggleston died only five months after his appointment. BCHS argued that the first personal representative in this case, Nunley, had served for two years without filing suit and that Merlone's appointment as successor personal representative had nothing to do with Nunley's inability to serve as personal representative. BCHS further argued that applying Eggleston in cases such as this one would allow a plaintiff to simply "switch" personal representatives to rectify the first personal representative's failure to timely commence proceedings. BCHS also argued that plaintiff's complaint was untimely under Lindsey v. Harper Hosp., 455 Mich. 56, 564 N.W.2d 861 (1997).
Thereafter, the Robinson defendants moved for summary disposition, reiterating the arguments raised in the other defendants' motions.
Plaintiff responded by asserting that defendants' arguments were erroneous and were not consistent with Eggleston. She also contended that applying Waltz to this case would be unfair because it would shorten the limitations period after the complaint had already been filed. Plaintiff argued that her complaint was timely under Omelenchuk v. City of Warren, 461 Mich. 567, 609 N.W.2d 177 (2000).1
In a supplemental brief filed in support of their motion for summary disposition, the Robinson defendants argued that, in addition to being untimely, plaintiff's complaint was defective because it had not been filed by the same person who filed the NOI. The Robinson defendants relied on Halton v. Fawcett, 259 Mich.App. 699, 675 N.W.2d 880 (2003), to support their argument. The other defendants concurred with this argument. In addition, BCHS argued that Eggleston was fact-specific and was not applicable to this case.
Plaintiff contended that, pursuant to Waltz and MCL 600.5852, she had five years from the date of decedent's death to timely file her complaint. Plaintiff also asserted that she had recently sent her own NOI and that her complaint therefore should not be dismissed. In response to plaintiff's argument, BCHS argued that plaintiff's reading of MCL 600.5852 rendered the first sentence of the statute nugatory. The Barrett defendants concurred with BCHS's argument in this regard. In addition, the Robinson defendants argued that plaintiff's reading of MCL 600.5852 was contrary to the statute's plain language.
After entertaining oral arguments, the trial court ruled that Eggleston was dispositive and allowed a successor personal representative two years from the date of appointment to file a complaint. The trial court determined that the plaintiff's complaint had been filed within two years after she became the successor personal representative "and certainly well within the three year period after expiration of the two year limitations period provided for in MCL 600.5852." The trial court also observed that our Supreme Court had rejected the holding in Halton, i.e., that a medical-malpractice plaintiff must be the same person who sent the NOI. The trial court entered an order denying defendants' motions for summary disposition. The court thereafter denied defendants' motions for reconsideration.
This Court initially denied defendants' applications for leave to appeal,2 but our Supreme Court remanded the matters for consideration as on leave granted. Estate of Dale v. Robinson, 474 Mich. 1098, 711 N.W.2d 75, 77 (2006). This Court then consolidated the appeals. Estate of Dale v. Robinson, unpublished order of the Court of Appeals, entered April 27, 2006 (Docket Nos. 269352, 269353, and 269354).
This Court entered an order holding these appeals in abeyance pending the decision of a conflict panel in Mullins v. St. Joseph Mercy Hosp., 271 Mich.App. 503, 722 N.W.2d 666 (2006) (Mullins I). Estate of Dale v. Robinson, unpublished order of the Court of Appeals, entered July 11, 2006 (Docket Nos. 269352, 269353, and 269354). This Court then entered an additional order holding these appeals in abeyance pending the decision of another conflict panel in Braverman v. Garden City Hosp., 275 Mich.App. 705, 740 N.W.2d 744 (2007) (Braverman I). Estate of Dale v. Robinson, unpublished order of the Court of Appeals, entered March 16, 2007 (Docket Nos. 269352, 269353, and 269354).
We review de novo a trial court's decision to grant or deny summary disposition under MCR 2.116(C)(7). Stoudemire v. Stoudemire, 248 Mich.App. 325, 332, 639 N.W.2d 274 (2001). In reviewing a motion for summary disposition under subrule C(7), we accept the plaintiff's well-pleaded allegations as true and construe them in the plaintiff's favor. In doing so, we consider any affidavits, depositions, admissions, and other documentary evidence submitted by the parties. Hanley v. Mazda Motor Corp., 239 Mich.App. 596, 600, 609 N.W.2d 203 (2000). "If the pleadings demonstrate that one party is entitled to judgment as a matter of law, or if affidavits and other documentary evidence show that there is no genuine issue of material fact concerning the running of the period of limitations, the trial court must render judgment without delay." Adams v. Adams (On Reconsideration), 276 Mich. App. 704, 720, 742 N.W.2d 399 (2007). We review de novo questions of statutory interpretation. Koontz v. Ameritech Services, Inc., 466 Mich. 304, 309, 645 N.W.2d 34 (2002).
Defendants argue that the trial court erred by denying their motions for summary disposition because the successor personal representative failed to file her complaint within two years of the issuance of the original letters of authority. We disagree.
"Because an underlying claim `survives by law' and must be prosecuted under the wrongful-death act, ... any statutory or common-law limitations on the underlying claim apply to a wrongful-death action." Wesche v. Mecosta Co. Rd. Comm., 480 Mich. 75, 89, 746 N.W.2d 847 (2008). Accordingly, a wrongful-death medical-malpractice action is governed by the statute of limitations and the accrual statute applicable to medical-malpractice claims. Jenkins v. Patel, 471 Mich. 158, 164-165, 684 N.W.2d 346 (2004); Lipman v. William Beaumont Hosp., 256 Mich. App. 483, 489-490, 664 N.W.2d 245 (2003). A plaintiff in a medical-malpractice action has two years from the date the cause of action...
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