Herrick v. Taylor

• Citation: 317 N.W.2d 631,113 Mich.App. 370
• Decision Date: 06 April 1982
• Docket Number: Docket No. 53990
• Parties: Ernest L. HERRICK and Christine Herrick, Plaintiffs-Appellees, v. Lawrence Lavern TAYLOR, Defendant-Appellant. 113 Mich.App. 370, 317 N.W.2d 631
• Court: Court of Appeal of Michigan — District of US

Page 631

317 N.W.2d 631

Ernest L. HERRICK and Christine Herrick, Plaintiffs-Appellees, v. Lawrence Lavern TAYLOR, Defendant-Appellant.

Docket No. 53990.

113 Mich.App. 370, 317 N.W.2d 631

Court of Appeals of Michigan.

Submitted Dec. 1, 1981.

Decided Feb. 18, 1982.

Released for Publication April 6, 1982.

[113 MICHAPP 371] Dean, Dean, Segar, Hart & Shulman, P.C., Flint, for plaintiffs-appellees.

Brownell, Andrews, Philpott & Piper, Flint, for defendant-appellant.

Before V. J. BRENNAN, P. J., and ALLEN and MEGARGLE, ^* JJ.

V. J. BRENNAN, Presiding Judge.

Defendant appeals by leave granted from the trial court's order denying his motion for an accelerated judgment.

On May 1, 1974, plaintiff Ernest Herrick sustained a broken leg in an automobile accident that occurred while he was a guest passenger in an automobile owned and operated by defendant. Ernest[113 MICHAPP 372] Herrick was hospitalized for eighteen days. A cast was removed from his leg on July 25, 1974.

On September 8, 1975, the Supreme Court ruled in Manistee Bank & Trust Co. v. McGowan, 394 Mich. 655, 232 N.W.2d 636 (1975), that Michigan's guest passenger statute, M.C.L. Sec. 257.401; M.S.A. Sec. 9.2101, violated the equal protection clause of the Michigan Constitution.

Ernest Herrick and his wife, Christine, commenced this action on May 17, 1977. Thereafter, defendant moved for accelerated judgment pursuant to GCR 1963, 116.1(5), on the basis that the statute of limitations had expired.

Plaintiffs responded to the motion by arguing that their claims did not accrue until September 8, 1975, the decisional date of the Manistee Bank case, or in the alternative, that their claims did not accrue until July 25, 1974, the date the cast was removed from plaintiff Ernest Herrick's leg and he discovered that he had suffered a serious impairment of a bodily function.

In Old Reliable Fire Ins. Co. v. Schaub, 85 Mich.App. 294, 271 N.W.2d 206 (1978), this Court found that the Manistee Bank decision applies retroactively in accordance with the general rule that unconstitutional statutes are void ab initio. The Court found that it was the Supreme Court's intention to apply the decision retroactively because the Supreme Court's disposition of Dunham v. Lowinger, 395 Mich. 793, 235 N.W.2d 153 (1975), where the Supreme Court reversed a 1973 decision of this Court on the basis of Manistee Bank, and Stanfill v. Powers, 68 Mich.App. 488, 243 N.W.2d 24 (1976), where the Court applied Manistee Bank to a 1970 accident and May, 1975, trial. However, none of the above cases are dispositive of the instant case.

[113 MICHAPP 373] We are presented here with the question of whether plaintiffs' claims are barred by the statute of limitations because this suit was filed more than three years after the accident, but within three years after the decisional date of Manistee Bank. The parties agree that the applicable statute of limitations is three years. M.C.L. Sec. 600.5805(8); M.S.A. Sec. 27A.5805(8).

The trial court found that plaintiffs' claims did not accrue until September 8, 1975, the decisional date of Manistee Bank, for the reason that plaintiffs should have three years from the time the statutory impediment to sue was removed in which to bring their action. The trial court also found that plaintiffs' cause of action did not accrue on the date the cast was removed. We agree.

In the instant case, plaintiffs should have the benefit of three years from the decisional date of Manistee Bank. We hasten to distinguish this case from cases where the Supreme Court has recognized a previously prohibited cause of action. Bauman v. Grand Trunk W. R. Co., 41 Mich.App. 611, 200 N.W.2d 444 (1972), lv. den. 388 Mich. 793 (1972). In Bauman, the Court found that the decisional date of an opinion recognizing a cause of action not previously recognized should not change the ordinary accrual time of a cause of action. However, the instant case is distinguishable from Bauman on two bases. First, Bauman involved a loss of consortium claim which had not been recognized by the courts in Michigan prior to Montgomery v. Stephan, 359 Mich. 33, 101 N.W.2d 227 (1960), while the present case involves a claim which resulted because a statute was found to be unconstitutional. Also, in Bauman the accident on which plaintiff's claim was based occurred more than three years prior to the decisional date of Montgomery.[113 MICHAPP 374] In the present case, the accident occurred one year and four months prior to the Manistee Bank decision. Therefore, the three year statute of limitations had not expired prior to the decisional date if it would have started running on the date of the injury.

Statutes of limitations are procedural rather than substantive, and their purpose is to guard against stale claims. Johnson v. Children's Hospital of Michigan, 105 Mich.App. 539, 307 N.W.2d 371 (1981). Statutes of limitations should be fairly construed so as to advance the policy they...