O'Keefe v. Clark Equipment Co., Docket No. 50066

• Decision Date: 25 March 1981
• Docket Number: Docket No. 50066
• Parties: Terrance O'KEEFE, Plaintiff-Appellant, v. CLARK EQUIPMENT COMPANY, Defendant-Appellee. 106 Mich.App. 23, 307 N.W.2d 343
• Court: Court of Appeal of Michigan — District of US

Page 343

307 N.W.2d 343

Terrance O'KEEFE, Plaintiff-Appellant, v. CLARK EQUIPMENT COMPANY, Defendant-Appellee.

Docket No. 50066.

106 Mich.App. 23, 307 N.W.2d 343

Court of Appeals of Michigan.

March 25, 1981.

Released for Publication July 13, 1981.

[106 MICHAPP 24] James M. Radabaugh, Troy, for plaintiff-appellant.

James N. Martin, Mount Clemens, for defendant-appellee.

Before KAUFMAN, P. J., and KELLY and CYNAR, JJ.

PER CURIAM.

Plaintiff-appellant, Terrance O'Keefe (hereinafter "O'Keefe") appeals from a trial court's grant of accelerated judgment, GCR 1963, 116, in favor of defendant-appellee, Clark Equipment Company, based upon the running of the statute of limitations.

On July 19, 1976, O'Keefe's hand was injured when a defective fork lift dropped a piece of machinery on it. On June 22, 1979, he commenced this action against John Doe Corporation claiming that the defective fork lift, manufactured by that [106 MICHAPP 25] corporation, caused his injury. On July 10, 1979, plaintiff had the Record Copy Service Corporation perform a record copy deposition on his employer to discover who manufactured the fork lift. See GCR 1963, 302.2. ¹ After receipt of the material requested by the deposition, it was discovered by plaintiff that the Clark Equipment Company manufactured the fork lift. Plaintiff's attorney received a copy of the deposition on August 13, 1979. On October 17, 1979, the plaintiff filed an amended complaint naming Clark Equipment Company as the defendant. On December 10, 1979, Clark moved for accelerated judgment which the trial court granted based upon the running of the statute of limitations. The plaintiff appeals the grant of accelerated judgment.

GCR 1963, 118.4 allows a plaintiff to amend his complaint and governs whether an amendment relates back to the date of the original complaint. In Charpentier v. Young, 83 Mich.App. 145, 149-150, 268 N.W.2d 322 (1978), rev'd on other grounds 403 Mich. 851 (1978), this Court addressed the issue of whether a plaintiff could amend his complaint to add a party after the statute of limitations had run. This Court stated:

"We, therefore, conclude that whether a party seeking to add parties to the litigation has complied with the court rules so as to entitle him to suspend the running of an applicable statute of limitations in favor of an added party, is for determination in the first instance by the trial court. An added party may obtain the trial court's review of the circumstances leading up to the filing of the amended complaint by filing a [106 MICHAPP 26] motion for accelerated judgment based upon the statute of limitations. The trial court may then review de novo the procedural steps taken by the amending party to assure that dilatory tactics have not unjustly deprived the added party of his legitimate statute of limitations defense. It is then within the discretion of the trial court to grant or deny the motion based upon his evaluation of the circumstances in each case."

This Court in Charpentier stated that a plaintiff may avoid a defense based upon the statute of limitations only where he can demonstrate diligence in discovery and compliance with procedural rules. Id. 151, 268 N.W.2d 322. The plaintiff in the instant case did not use due diligence, and this Court affirms the trial court's grant of accelerated judgment.

In this case, the applicable statute of limitations was three years. M.C.L. § 600.5805(8); M.S.A. § 27A.5805(8). Plaintiff did not commence his action until a month before the statute was to run. While plaintiff did begin discovery immediately, he did not press for the material from the record copy deposition which contained the information needed to join the real manufacturer. Rather, plaintiff waited until August 13, 1979, for the information and did not file an amended complaint until October 17, 1979. Furthermore, the plaintiff did not comply with GCR 1963, 118 when he amended his complaint, having filed no motion to so amend, as mandated by GCR 1963, 118.1. Therefore, the trial court did not err in granting defendant's motion for accelerated judgment.

Plai...