Fisher v. Volkswagenwerk Aktiengesellschaft

• Decision Date: 21 July 1982
• Docket Number: Docket No. 52355
• Citation: 115 Mich.App. 781,321 N.W.2d 814
• Parties: John R. FISHER, Jr., and Margaret Ann Sutherland, Co-Administrators of the Estates of John R. Fisher and Ina Fisher, Deceased, Plaintiffs-Appellees, v. VOLKSWAGENWERK AKTIENGESELLSCHAFT a/k/a Volkswagenwerk Gmbh, A Corporation of the German Federation Republic and Volkswagen of America, Inc., A New Jersey Corporation, Defendants- Appellants. 115 Mich.App. 781, 321 N.W.2d 814
• Court: Court of Appeal of Michigan — District of US

Page 814

321 N.W.2d 814

John R. FISHER, Jr., and Margaret Ann Sutherland Co-Administrators of the Estates of John R. Fisher and Ina Fisher, Deceased Plaintiffs-Appellees, v. VOLKSWAGENWERK AKTIENGESELLSCHAFT a/k/a Volkswagenwerk Gmbh A Corporation of the German Federation Republic and Volkswagen of America, Inc., A New Jersey Corporation Defendants- Appellants.

Docket No. 52355.

115 Mich.App. 781, 321 N.W.2d 814

Court of Appeals of Michigan.

Submitted Nov. 18, 1981.

Decided May 4, 1982.

Rehearing Denied June 28, 1982.

Released for Publication July 21, 1982.

[115 MICHAPP 782] F. L. Wyckoff, Detroit, for plaintiffs-appellees.

Bushnell, Gage, Doctoroff, Reizen & Byington by George E. Bushnell, Jr., Noel A. Gage and Lynn H. Shecter, Southfield, for defendants-appellants.

Before CYNAR, P. J., and V. J. BRENNAN and DEMING ^*, JJ.

DEMING, Judge.

Defendants-appellants appeal by leave granted from an order denying a motion for accelerated judgment, GCR 1963, 116.1(3).

[115 MICHAPP 783] The plaintiffs were coadministrators of the estates of their parents, John R. Fisher and Ina Fisher, deceased. The administration of the respective estates terminated in the probate court and the estates were closed on June 26, 1978, and March 1, 1978.

The genesis of this litigation was an automobile accident which took the lives of John and Ina Fisher. The accident occurred on December 9, 1976. The plaintiffs, as administrators, brought this suit in the Wayne County Circuit Court on December 6, 1979. Thereafter, defendants moved for accelerated judgment, alleging that plaintiffs were not proper parties and that they lacked the capacity to sue. Prior to the hearing on the defense motion, the plaintiffs returned to the probate court and the estates were reopened on April 17, 1980. Plaintiffs were reappointed as coadministrators and moved the circuit court to amend their complaint to assert their proper reappointment as personal representatives of the deceased.

The defense motion was denied after a hearing on April 18, 1980. The trial court opined that the cause of action asserted by plaintiffs was an asset of the estates and that the reopening of the estates was purely ministerial. The court concluded that plaintiffs' reappointment would relate back to the filing of the complaint, avoiding the bar of the statute of limitations. We disagree and reverse.

Only the personal representative of a deceased may bring a statutory wrongful death action. M.C.L. Sec. 600.2922(2); M.S.A. Sec. 27A.2922. The Michigan Supreme Court has placed a strict construction on the term "shall" as it applies to the wrongful death statute. In Maiuri v. Sinacola Construction Co., 382 Mich. 391, 393, 170 N.W.2d 27 (1969), the Court barred an action:

[115 MICHAPP 784] "This action was brought by Pasquale Maiuri and Amelia Maiuri, husband and wife, parents of the deceased, in their individual capacities, not as representatives of their son's estate. The Language of the statute is mandatory. The plaintiffs' action must fail because they are improper parties. Burns v. Van Laan (1962), 367 Mich. 485, 116 N.W.2d 873."

The cause of action under the wrongful death statute accrues when death occurs and an action is timely brought if it is commenced within three years of the death. Coury v. General Motors Corp., 376 Mich. 248, 251, 137 N.W.2d 134 (1965). The suit was filed within the applicable period of limitation, M.C.L. Sec. 600.5805(8); M.S.A. Sec. 27A.5805(8), but, because the plaintiffs misrepresented themselves to the circuit court, they were not, at the time the suit was filed, coadministrators in fact.

Initially, we reject plaintiffs' argument that the doctrine of executor de son tort should apply. Michigan allows no common law recovery for wrongful death. Given the strict construction given by the Supreme Court in Maiuri, supra, and the earlier rejection of this argument in Gilkey v. Hamilton, 22 Mich. 283, 286 (1871), we are not persuaded that we should follow such a rule.

In Castle v. Lockwood-McDonald Hospital, 40 Mich.App. 597, 199 N.W.2d 252 (1972), this Court addressed a similar issue. There, plaintiff, a widow of the deceased, was appointed special administratrix solely for the purpose of instituting a lawsuit, since the chief asset of the estate was a cause of action for a wrongful death. The plaintiff in Castle had been validly appointed special administratrix before the three-year statute of limitations ran. We held that, because she had acted in good faith, mistakenly believing herself as having the legal authorization to institute a lawsuit, the doctrine of [115 MICHAPP 785] relation back applied. Concerning the Relation-Back rule, and its narrow application, the Castle Court said:

"The doctrine of 'relation back' is not new. It is generally applied in the following situation:

" '[W]henever letters of administration or testamentary are granted, they relate back to the intestate's or testator's death, and all previous acts of the representative that were beneficial in their nature to the estate, and that were in their nature things that he could have performed had he been duly qualified at the time, are validated.' 31 Am.Jur.2d, Executors and Administrators, Sec. 162, p. 94.

"Further, in a great majority of the cases in this country when the doctrine of 'relation back' has been considered, it has been held that such an appointment made after the statute of limitation has run against a claim will relate back to validate actions taken on the claim within the statutory period by the person subsequently appointed administrator thus barring reliance upon the defense of limitations by a party against whom the claim is asserted on behalf of the estate. Such result has been reached in wrongful death actions. Kiley v. Lubelsky, 315 F.Supp. 1025 (1970). See 3 A.L.R.3d 1234. The apparent reason for the application of the doctrine of relation back as a means of defeating the defense of the statute of limitation is the desire of the courts not to have valid claims avoided by legal technicalities provided the administrator acted in good faith and had some reasonable grounds for believing he had been duly appointed.

* * *

"Therefore, we hold that when a validly appointed special administratrix institutes a wrongful death action, under the mistaken belief that she has been specifically authorized to so act, but thereafter discovers her error and procures the proper authorization by probate order in satisfaction of MCLA 702.61; MSA 27.3178(131) after the expiration of the applicable statute of limitation, the probate order will relate back to the commencement of the wrongful death action and [115 MICHAPP 786] the action will be deemed properly commenced within the time limited by statute." Castle, supra, 40 Mich.App. 603-604, 606-607, 199 N.W.2d 252.

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