Hardy v. Maxheimer

• Decision Date: 01 February 1988
• Docket Number: Docket Nos. 78250
• Citation: 429 Mich. 422,416 N.W.2d 299
• Parties: Suzie HARDY, Personal Representative of the Estate of Derick Holland, Deceased, Plaintiff-Appellant, v. Ronald MAXHEIMER, Individually and d/b/a Flint Canoe Livery, and the County of Genesee, a Michigan Municipal Corporation, Defendants-Appellees. Betty Jean JOHNSON, Personal Representative of the Estate of Curtis Mathews, Deceased, Plaintiff-Appellant, v. Ronald MAXHEIMER, Individually and d/b/a Flint Canoe Livery, and the County of Genesee, a Michigan Municipal Corporation, Defendants-Appellees. to 78253. 429 Mich. 422, 416 N.W.2d 299
• Court: Michigan Supreme Court

Page 299

416 N.W.2d 299

Suzie HARDY, Personal Representative of the Estate of Derick

Holland, Deceased, Plaintiff-Appellant, v. Ronald MAXHEIMER, Individually and d/b/a Flint Canoe Livery, and the County of Genesee, a Michigan Municipal

Corporation, Defendants-Appellees.

Betty Jean JOHNSON, Personal Representative of the Estate of Curtis Mathews, Deceased, Plaintiff-Appellant, v. Ronald MAXHEIMER, Individually and d/b/a Flint Canoe Livery, and the County of Genesee, a Michigan Municipal

Corporation, Defendants-Appellees.

Docket Nos. 78250 to 78253.

429 Mich. 422, 416 N.W.2d 299

Supreme Court of Michigan.

Argued April 7, 1987.

Decided Dec. 7, 1987.

Rehearing Denied Feb.1, 1988.

Dean, Dean, Segar, Hart & Shulman, P.C. by Leonard B. Shulman, Flint, for plaintiffs-appellants

Kaufman and Payton by Donald L. Payton, Southfield, for Flint Canoe Livery.

Donald L. Payton, Jo Robin Davis, Kaufman and Payton, Farmington Hills, for defendants-appellees, Ronald Maxheimer, d/b/a Flint Canoe Livery.

Wilson, Portnoy, Leader, Pidgeon & Roth, P.C. by Robert P. Roth, Bloomfield Hills, for Genesee County.

Before the Entire Bench.

ARCHER, Justice.

We granted plaintiffs leave to appeal primarily to determine (1) whether M.C.L. Sec. 600.5852; M.S.A. Sec. 27A.5852 ¹ applies to wrongful death cases in which death was "instantaneous," and (2) whether death by drowning is instantaneous as a matter of law.

We hold that the saving provision contained in M.C.L. Sec. 600.5852; M.S.A. Sec. 27A.5852 operates to toll the statute of limitations in both survival-type actions and death-type actions brought under M.C.L. Sec. 600.2922; M.S.A. Sec. 27A.2922, the wrongful death statute. ² Thus, the plaintiffs in the instant case may pursue their wrongful death action to judgment because the personal representatives brought the action within two years of their appointment and within three years after the initial period of limitation had run.

Facts

On September 2, 1979, two young boys, Derick Holland and Curtis Mathews, drowned when the canoe they and another companion had rented capsized. The canoe was rented from the Flint Canoe Livery, on Mott Lake in Genesee County. The livery was run by defendant Maxheimer, and codefendant Genesee County had contracted with Maxheimer to allow him to operate the livery on the county-owned lake.

On May 4, 1983, plaintiffs were appointed as the personal representatives of the estates of decedents Holland and Mathews. Subsequently, on August 5, 1983, plaintiffs brought separate actions in Genesee Circuit Court ³ against Maxheimer ⁴ and Genesee County. ⁵ The defendants responded with motions for accelerated judgment, claiming that the suits were barred by the three-year period of limitation for negligence actions, M.C.L. Sec. 600.5805(8); M.S.A.

                Sec. 27A.5805(8). 6  Plaintiffs argued that the saving clause of M.C.L. Sec. 600.5852;  M.S.A. Sec. 27A.5852 applied to all wrongful death actions and tolled the statute of limitations, thus extending the time in which their cause of action properly could be filed.  The trial court denied the defendants' motions, and certified the denial for appeal
                

On appeal, a divided Court of Appeals reversed the decision of the trial court. 149 Mich.App. 236, 385 N.W.2d 762 (1986). The majority held that (1) application of the saving provision found in M.C.L. Sec. 600.5852; M.S.A. Sec. 27A.5852 is limited to survival actions, and (2) the determination of whether an action "survive[d] by law" for purposes of applying the saving provision is to be made by distinguishing between instantaneous death (i.e., a death action) and noninstantaneous death (i.e., a survival action). Judge Shuster disagreed, stating that he would apply the saving provision to survival-type actions as well as to death-type actions brought under the wrongful death statute.

I

It is undisputed that the decedents died as a result of the drowning on September 2, 1979. Their personal representatives were appointed on May 4, 1983. Actions brought pursuant to the wrongful death statute accrue as provided by the statutory provisions governing the underlying liability theory. Hawkins v. Regional Med. Labs, 415 Mich. 420, 437, 329 N.W.2d 729 (1982). In this case, since the action is based on ordinary negligence, the claim accrued on September 2, 1979, the date of the injury. See Rhule v. Armstrong, 384 Mich. 709, 187 N.W.2d 223 (1971). Pursuant to M.C.L. Sec. 600.5805(8); M.S.A. Sec. 27A.5805(8), the applicable statute of limitations is three years. ⁷ Absent a saving or tolling provision, the action would be untimely if brought any time after September 2, 1982. The instant actions were not filed until August 5, 1983.

Plaintiffs contend the language of M.C.L. Sec. 600.5852; M.S.A. Sec. 27A.5852 extends the statute of limitations and therefore the claims are saved. M.C.L. Sec. 600.5852; M.S.A. Sec. 27A.5852 reads in pertinent part:

"If a person dies before the period of limitations has run or within 30 days after the period of limitations has run, an action which survives by law may be commenced by or against the executor or administrator of the deceased person ... at any time within 2 years after letters testamentary or letters of administration are granted.... But no executor or administrator shall bring an action under this provision unless he commences it within 3 years after the period of limitations has run." (Emphasis added.)

The defendants, on the other hand, contend that the Sec. 5852 saving provision applies only to "noninstantaneous" death cases "which survive[d] by law." Therefore, according to the defendants, the critical issues are whether plaintiffs' decedents had an actionable claim prior to the time of their death, and whether their deaths were "noninstantaneous." The Court of Appeals took the defendant's view that application of the Sec. 5852 saving provision is limited to survival (i.e., noninstantaneous death) actions and that this case was not a survival action because the plaintiffs' decedents deaths were "instantaneous." ⁸

In the instant case, the Court of Appeals focused upon the language in the Sec. 5852 saving provision: "action which survives by law." 149 Mich.App. at 242, 385

                N.W.2d 762. 9  Under the Court of Appeals interpretation, an action for wrongful death is created at the time of death, and cannot be said to "survive" death.  Therefore, according to the Court of Appeals, only actions which might have been brought as "survival" actions fall within the Sec. 5852 saving provision.  Id.  The Court of Appeals further maintained that for purposes of the Sec. 5852 saving provision, a [429 MICH 429] "survival" action is one in which the plaintiffs' decedents sustained "noninstantaneous" death.  Thus, under the Court of Appeals construction, if the death is interpreted to be "noninstantaneous" (i.e., a survival action), a plaintiff will have the benefit of an additional time period after appointment of a personal representative to bring an action for wrongful death, whereas a plaintiff whose decedent's death was "instantaneous" (i.e., a death action) will be bound by the applicable statute of limitations no matter when a personal representative is appointed
                

II

We disagree with the Court of Appeals for several reasons. We shall consider each reason separately.

A

Firstly, the Court of Appeals addressed this Court's decision in Hawkins, to support its position that the Sec. 5852 saving clause did not apply under the facts of this case. In Hawkins, supra, we held that any time death does not instantaneously result from wrongful conduct, the claim brought by the decedent's personal representative is a survival action enhanced by the broader measure of damages in the current death act. 415 Mich. at 434, 329 N.W.2d 729.

Although the Hawkins Court did not explicitly address the question presented in this case--whether the saving provision applies to wrongful conduct resulting in instantaneous death, the court did approve the interpretation given to the post-1939 death act and its relationship to the saving provision of M.C.L. Sec. 600.5852; M.S.A. Sec. 27A.5852 as announced by the federal circuit court in Janes v. Sackman Bros. Co., 177 F.2d 928 (CA 2, 1949).

In Janes, a minor child died as a result of a cowboy suit catching fire. Sackman Brothers Company manufactured and sold the suit to a Michigan retailer from whom the suit had been purchased. The death resulting from the alleged wrongful conduct was characterized as not occurring instantaneously, although the minor child died on the same day the suit caught fire. Applying Michigan law, the court discussed the relationship of a survival action and a death action and held:

"Since the present action is set up as a survival action under the combined remedy now granted by Sec. 27.711, the three-year period of Sec. 27.605 obviously applies, but is extended a maximum of three years by the provisions giving time for the appointment of an administrator in Sec. 27.610. And plaintiff by his allegations has certainly brought his case within the limits which the combination of these two limitation statutes imposes. But even if it should develop at the trial that death was, in fact, instantaneous, and that the action is grounded in the features of Sec. 27.711 which continue the former Death Act, we think the preferable view to be that, nevertheless, the action is not barred. Of course that would be clear were the analogies from other states suggesting the applicability of the general six-year statute to be held controlling. But the clear-cut rule as to the survival cases, the background of apparent judicial reaction that Sec. 27.610 does apply broadly in death cases, and the legislative attempt to blot out the troublesome distinctions between these former diverse rights lead us to believe that the Michigan court will hold this exception to the limitation statute also applicable to this branch of the now combined death claim [instantaneous...