Flynn v. McLouth Steel Corp.

• Decision Date: 07 October 1974
• Docket Number: No. 1,Docket No. 15655,1
• Citation: 223 N.W.2d 297,55 Mich.App. 669
• Parties: David A. FLYNN, Plaintiff-Appellant, v. McLOUTH STEEL CORPORATION, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 297

223 N.W.2d 297

55 Mich.App. 669

David A. FLYNN, Plaintiff-Appellant, v. McLOUTH STEEL CORPORATION, Defendant-Appellee.

Docket No. 15655.

Court of Appeals of Michigan, Division No. 1.

Oct. 7, 1974.

Released for Publication Nov. 21, 1974.

Sanford L. Steiner, Ripple & Chambers, Detroit, for plaintiff-appellant.

Lawrence A. Bohall, Detroit, for defendant-appellee.

Before BRONSON, P.J., and V. J. Brennan and VanVALKENBURG,* JJ.

BRONSON, Presiding Judge.

This case presents for decision the following important issue:

WILL THE AUTHORITY OF A TRIAL JUDGE TO RULE ON A MOTION FOR ACCELERATED JUDGMENT BE ELIMINATED BY THE MERE DEMAND FOR A TRIAL BY JURY, EVEN WHEN NO DISPUTED ISSUES OF FACT ARE PRESENTED BY THE MOTION?

GCR 116.3 provides, in pertinent part, as follows:

'As to defenses and objections based upon subrule 116.1(5), the court may order immediate trial of any Disputed questions of fact, and judgment may be rendered forthwith if the proof shows that the moving party is entitled to judgment on the facts as determined; or the court may postpone the hearing on the matter until the trial on the merits, and shall postpone the hearing if a jury trial has been demanded pursuant to right on or before the day of the hearing.' (Emphasis supplied.)

Defendant-appellee McLouth Steel filed a motion for accelerated judgment in this case, citing the expiration of the limitations period. Since the defense of statute of limitations is listed in rule 116.1(5), the motion was properly considered by the trial judge under that part of rule 116 quoted above. GCR 1963, 116.1(5). ¹ Plaintiff-appellant Flynn made a timely demand for jury trial in accordance with rule 116.3.

Flynn argues that the mandatory language of rule 116.3 (Shall postpone the hearing) requires the trial judge to refuse to consider the motion for accelerated judgment, given the jury trial demand. In his view, whenever a jury trial is demanded the judge is powerless to pass on a motion for accelerated judgment. We disagree.

The language of rule 116.3 quoted above is specifically addressed to Disputed questions of fact, and prescribes the procedure to follow when such questions are presented in a motion for accelerated judgment on a ground listed in 116.1(5). Necessarily implied by such language is a preliminary issue: whether there is a disputed question of fact presented. This is a question of law, properly addressed to and determined by the trial judge. If he decides that a disputed question of fact is Not presented, the procedural alternatives, including the required postponement of the hearing when a demand for jury trial is made, do not apply. Mills v. Stankiewicz, 27 Mich.App. 483, 183 N.W.2d 602 (1970). The judge may properly go on to determine questions of law based on undisputed questions of fact himself. Id. at 485, 183 N.W.2d 602.

Such a construction is consistent with the fair meaning of the rule. It also provides adequate protection for the right to jury trial. Since there is no right to jury trial on issues which are not actually in dispute, the procedure contemplated in rule 116.3 will allow the trial judge to isolate just those issues appropriate for jury deliberation.

Moreover, this construction avoids the absured result entailed by a wooden application of Flynn's interpretation. A mere demand for jury trial, even in the face of an obviously meritorious rule 116.1(5) defense, would--under Flynn's interpretation--force the judge to 'postpone the hearing * * * until trial'. Such a needless waste of time and resources cannot be countenanced and is avoided by allowing the judge to decide at the outset whether disputed questions of fact are presented. If so, and if a jury trial has been demanded, ² the judge must postpone the hearing until trial on the merits. ³ If disputed questions of fact are Not presented, the judge must consider the merits of the motion himself, after hearing. The hearing may be held immediately or may be postponed, in the judge's discretion.

Applying these principles to the case at bar, we conclude that the trial judge, in granting the motion for accelerated judgment in the face of Flynn's demand for jury trial, must have decided that the questions of fact presented by McLouth's motion were undisputed. Otherwise, he would have been bound by rule 116.3 to postpone a hearing on the motion until trial.

However, a review of the facts underlying the motion, in light of the recent pronouncements in Rizzo v. Kretschmer, 389 Mich. 363, 207 N.W.2d 316 (1973), indicate that the facts may well be disputed and require that the case be remanded for further proceedings.

On September 15, 1971, Flynn filed an action seeking damages for an injury resulting from an alleged slip and fall caused by a foreign substance on a stairway owned and maintained by McLouth Steel. The complaint sets the date of injury as October 10, 1968, while Flynn was working for Hall Engineering--a subcontractor of McLouth--on McLouth's premises.

Flynn was deposed on January 19, 1972. His testimony disclosed for the first time a possible statute of limitations defense. At least three times he clearly stated that the injury complained of occurred Prior to the accidental death of a fellow worker. ⁴ It is undisputed that the date of Flynn's injury is to be measured in relation to this other incident. It is also clear that the fatality to which Flynn referred and which he vividly remembers occurred on a Sunday.

Over eight months later, on September 29, 1972, McLouth filed a motion for accelerated judgment, supplemented by affidavits. Included was the affidavit of Mr. Hall, the president of Hall Engineering, in which it was alleged 1) that the only fatal accidents involving a Hall employee during 1968 happened on Sunday, June 30, 1968, in a manner strikingly similar to that testified to by Flynn in the latter's deposition and 2) that Flynn did not work for Hall on October 10, 1968, though he was working for Hall on McLouth's premises on June 30, 1968. Employment records were attached in support of the latter allegation.

In response, Flynn submitted a 'verified affidavit' stating that he believed the accident occurred on October 10, 1968. This was based on a review of his union records, which were also submitted but which reveal only that Flynn worked for Hall between October 3 and October 12, 1968.

Two other items lend rather limited support to Flynn's claim. He testified in the deposition that he left work 'right after the accident'. Since his employment with Hall during October, 1968 is undisputed, such testimony supports the October, rather than June, injury date. Further, three co-workers who were said (by Flynn) to have been present on the day of his injury were not all present on June 30, but were present on October 10, 1968.

Rizzo, supra, in the analogous summary judgment setting, provides an appropriate standard ⁵ for resolving the question of disputability:

'The court must be satisfied that it is impossible for the claim or defense to be supported at trial because of some deficiency which cannot be overcome.' Id. at 372, 207 N.W.2d at 320.

The question of the governing date of accrual of a cause of action for statute of limitations purposes is a question of fact. Tumey v. City of Detroit, 316 Mich. 400, 411, 25 N.W.2d 571 (1947); Ames v. MacPhail, 289 Mich. 185, 286 N.W. 206 (1939).

We are not unmindful of the proposition advanced by McLouth that general allegations of fact, without explanation, are not enough to rebut strong inferences raised by affidavits submitted in connection with pretrial motions. This is especially true when the nonmovant has made statements of fact which can arguably be considered binding on him. See Gamet v. Jenks, 38 Mich.App. 719, 726, 197 N.W.2d 160, 164 (1972). We point out, however, that Gamet is a Pre-Rizzo case. Moreover, it is for the trial court, on remand, to decide whether Flynn has done enough to escape the force of Gamet and merits the protection Rizzo seeks to provide. ⁶

One other issue raised by Flynn must be discussed in order to guide the trial court on remand.

Flynn maintains that the motion for accelerated judgment was improperly considered by the trial court because untimely in that it was neither filed in McLouth's first responsive pleading nor by motion not later than that first responsive pleading. GCR 1963, 116.1.

Under most circumstances, an eight-month delay would plainly violate the rule. But McLouth could not have been...