Horan v. Brown

• Decision Date: 22 April 1986
• Docket Number: 78937,Docket Nos. 78927
• Parties: Mary C. HORAN, Plaintiff-Appellee, v. Alan John BROWN, John V. Brown, and Daniel Loyce Snyder, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 805

384 N.W.2d 805

148 Mich.App. 464

Mary C. HORAN, Plaintiff-Appellee, v. Alan John BROWN, John V. Brown, and Daniel Loyce Snyder Defendants-Appellants.

Docket Nos. 78927, 78937.

Court of Appeals of Michigan.

Submitted Oct. 9, 1985.

Decided Jan. 22, 1986.

Released for Publication April 22, 1986.

Goodman & Miller (by Mark A. Baun), Southfield, for plaintiff-appellee.

Eggenberger, Eggenberger, McKinney & Weber, P.C. by William D. Eggenberger, Detroit, for defendant-appellant Brown.

Fitzgerald, Hodgman, Kazul, Rutledge, Cawthorne & King, P.C. by Michael A. Gunderson, Detroit, for defendant-appellant Snyder.

Before MAHER, P.J., and WAHLS and HOOD, JJ.

PER CURIAM.

On November 2, 1983, plaintiff filed a complaint against Alan John Brown alleging that on February 19, 1979, she was injured in an automobile accident while riding as a passenger in a car driven by Brown. Brown answered and raised the statute of limitations, M.C.L. Sec. 600.5805; M.S.A. Sec. 27A.5805, as an affirmative defense. Plaintiff responded to the defense alleging that she did not know nor could have reasonably known of her serious impairment until August of 1983. Subsequently, plaintiff filed an amended complaint adding as defendants John V. Brown, the owner of the car driven by Alan Brown, and Daniel Loyce Snyder, the driver of the other car involved in the accident.

All defendants filed a motion for accelerated judgment, GCR 1963, 116.1(5), now MCR 2.116(C)(7), asserting the statute of limitations defense. The trial court denied the motion on the basis that the period of limitations does not begin to run until the threshold level of serious impairment of body function has been met. Defendants appeal by leave granted.

It is undisputed that the statute of limitations, M.C.L. Sec. 600.5805(8); M.S.A. Sec. 27A.5805(8), is applicable to this case and provides:

"The period of limitations is 3 years after the time of the death or injury for all other actions to recover damages for the death of a person, or for injury to a person or property."

M.C.L. Sec. 600.5827; M.S.A. Sec. 27A.5827 further provides:

"Except as otherwise expressly provided, the period of limitations runs from the time the claim accrues. The claim accrues at the time provided in sections 5829 and 5838, and in cases not covered by these sections the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results."

The sole question on appeal is: When does a cause of action for serious impairment of body function accrue so as to begin the running of the period of limitations? In Mielke v. Waterman, 145 Mich.App. 22, 377 N.W.2d 328 (1985), this Court held that a cause of action for damages for noneconomic losses from a serious impairment of body function does not accrue until the plaintiff discovers or should have discovered the serious impairment of body function. We agree.

As noted by the Mielke Court, the Supreme Court has interpreted M.C.L. Sec. 600.5827; M.S.A. Sec. 27A.5827 as follows:

" 'In the case of an action for damages arising out of tortious injury to a person, the cause of action accrues when all of the elements of the cause of action have occurred and can be alleged in a proper complaint.

" 'Those elements are four in number.

" '(1) The existence of a legal duty by defendant toward plaintiff.

" '(2) The breach of such duty.

" '(3) A proximate causal relationship between the breach of such duty and an injury to the plaintiff.

" '(4) The plaintiff must have suffered damages.

* * *

* * *

" 'It is quite common in personal injury actions to allege and prove future loss of earning capacity, future medical expenses, future pain and suffering. Indeed all of these elements must be alleged and proved in a single cause of action. Once all of the elements of an action for personal injury, including the element of damage, are present, the claim accrues and the statute of limitations begins to run. Later damages may result, but they give rise to no new cause of action, nor does the statute of limitations begin to run anew as each item of damage is incurred.' " Mielke, supra, pp. 24-25, 377 N.W.2d 328, quoting Connelly v. Paul Ruddy's Equipment Repair & Service Co, 388 Mich. 146, 150-151, 200 N.W.2d 70 (1972).

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