Lemmerman v. Fealk

• Decision Date: 05 July 1995
• Docket Number: 8,97841 and 98365,Docket Nos. 97839,Nos. 7,s. 7
• Citation: 534 N.W.2d 695,449 Mich. 56
• Parties: , 64 USLW 2059 Marlene LEMMERMAN, Plaintiff-Appellee, v. Benjamin FEALK or the Estate of Benjamin Fealk, Bella Fealk, and Rachel Levy a/k/a Rae Levy, Jointly and Severally, Defendants-Appellants. Gale WILLIFORD, Plaintiff-Appellee, v. Irwin BIESKE, Defendant-Appellant. Calendar
• Court: Michigan Supreme Court

Page 695

534 N.W.2d 695

449 Mich. 56, 64 USLW 2059

Marlene LEMMERMAN, Plaintiff-Appellee, v. Benjamin FEALK or the Estate of Benjamin Fealk, Bella Fealk, and Rachel Levy a/k/a Rae Levy, Jointly and Severally, Defendants-Appellants.

Gale WILLIFORD, Plaintiff-Appellee, v. Irwin BIESKE, Defendant-Appellant.

Docket Nos. 97839, 97841 and 98365.

Calendar Nos. 7, 8.

Supreme Court of Michigan.

Argued Jan. 12, 1995.

Decided July 5, 1995.

Law Firm of Lore A. Rogers, P.C. by Lore A. Rogers, Ann Arbor, for plaintiff in Lemmerman.

Bruetsch & Associates by Patrick J. Bruetsch and Todd A. Kreckman, Birmingham, for plaintiff in Williford.

Bruce J. Lazar, Farmington Hills, for defendant Bella Fealk in Lemmerman.

Martin N. Fealk, P.C. by Martin N. Fealk, Farmington Hills, for defendant Rachael Levy a/k/a Rae Levy in Lemmerman.

Lawrence A. Baumgartner, P.C. by Jane R. Ware, Mount Clemens, for defendant in Williford.

Julie Kunce Field, Ann Arbor, for amicus curiae Women and the Law Clinic.

Opinion

BOYLE, Justice.

We are asked in these cases to extend the limitation period for the civil actions brought by plaintiffs who allege they were sexually abused as children by the defendants, but were unable to timely file claims because of repression of the memory of abuse. We must decide whether (1) the discovery rule is applicable to determine the time of accrual of the claims triggering the running of the limitation period for plaintiffs' tort actions of assault and battery, negligence, and intentional infliction of emotional distress, or (2) if the limitation period can be extended by the one-year statutory grace period allowed after removal of the disability of insanity under M.C.L. § 600.5851(1); M.S.A. § 27A.5851(1). ¹

We hold that neither the discovery rule nor the insanity disability statute addresses the exception claimed to extend the time allowable for bringing suit in these cases. The question of tolling the allowable time for bringing claims allegedly due to repressed memory is appropriately addressed to the Legislature.

The Court of Appeals decision in Lemmerman v. Fealk, is reversed, and both cases are remanded to the trial courts for proceedings consistent with this opinion, MCR 2.116(C)(7).

I

A Lemmerman v. Fealk

Plaintiff Marlene Lemmerman alleges that she was sexually and physically abused by her father and aunt for approximately ten years, beginning in 1939, when she was three. Plaintiff asserts that during the period in which these assaults were occurring she attempted to tell her mother about the abuse, but that her mother denied the allegations, took no action to halt the abuse, and on at least one occasion responded by threatening her with a pair of scissors. As a coping mechanism, plaintiff maintains that she developed a second personality who took her place during the abusive episodes. It is alleged that this personality dissociation repressed plaintiff's active memory of the abuse.

On May 19, 1989, plaintiff alleges to have confirmed her knowledge of sexual abuse through a confrontation with her father, who was a patient in a psychiatric hospital at the time of the encounter. ² Plaintiff alleges that, after several months of therapy, she realized that the sexual abuse was not her fault and was thus able to seek legal redress. Plaintiff's father passed away in May, 1990.

On May 18, 1990, plaintiff filed a complaint in circuit court against her mother, her father's estate, and her aunt, setting forth allegations of assault and battery and intentional infliction of emotional distress by all defendants, and negligence by her mother and father. Pursuant to a defense motion for summary disposition under MCR 2.116(C)(7), the trial court dismissed the plaintiff's action. The court found the insanity disability grace period provision of M.C.L. § 600.5851; M.S.A. § 27A.5851 was not available to toll the statute of limitations because plaintiff lacked the corroboration of allegations of abuse required by Meiers-Post v. Schafer, 170 Mich.App. 174, 427 N.W.2d 606 (1988).

On appeal, the Court of Appeals reversed the decision of the trial court. 201 Mich.App. 544, 507 N.W.2d 226 (1993). The Court held that the discovery rule was applicable to determine when the plaintiff's cause of action accrued. The Court also found that when the plaintiff knew or should have known that she had a cause of action was a question of fact. Id. at 548-553, 507 N.W.2d 226. In addition, the Court found the provisions of M.C.L. § 600.5851; M.S.A. § 27A.5851 applicable, holding that there were questions of fact regarding whether the plaintiff suffered from insanity and, if she did, when that disability had been removed. 201 Mich.App. at 553-554, 507 N.W.2d 226. The Court found that corroboration was not necessary under either theory. We granted leave to appeal and ordered that the case be argued together with Williford v. Bieske, 445 Mich. 935, 521 N.W.2d 15 (1994).

B Williford v. Bieske

Plaintiff Gale Williford alleges that her father, Irwin Bieske, repeatedly sexually abused her, forced her into prostitution, and assaulted and battered her from December, 1942, when the she was five, throughout her adolescence. Plaintiff alleges that she regressed into another state of mind as a means of escaping the abuse and, as a consequence, repressed memory of the abuse until her memory of these acts was revived during psychological therapy sessions in 1992.

On April 19, 1993, plaintiff filed a complaint in circuit court against her father, alleging intentional infliction of emotional distress and assault and battery. Defendant moved for summary disposition, pursuant to MCR 2.116(C)(7), claiming that plaintiff's action was barred by the applicable limitation period because she provided no corroboration of her allegations of sexual assault. The motion was initially denied pending discovery, and on reconsideration the trial court found that plaintiff's action could survive summary disposition under the terms of M.C.L. § 600.5851; M.S.A. § 27A.5851, if corroborating evidence of the allegations was uncovered during discovery.

Leave to appeal to the Court of Appeals was denied for lack of merit, citing Lemmerman, supra. ³ We granted leave to appeal, directing that the case be argued along with Lemmerman, 445 Mich. 934, 521 N.W.2d 14 (1994).

II

As a general rule, untimely filed tort claims are barred by the statute of limitations. Claims for assault and battery normally must be brought within two years after they accrue, and claims for negligence and intentional infliction of emotional distress must be brought within three years after they accrue in order to avoid the limitation bar. M.C.L. § 600.5805(2), (8); M.S.A. § 27A.5805(2), (8). A claim accrues "at the time the wrong upon which the claim is based was done regardless of the time when damage results." M.C.L. § 600.5827; M.S.A. § 27A.5827. The time of the wrong triggering the running of the limitation period is the date a plaintiff's injury results from a breach of duty. Larson v. Johns-Manville Sales Corp, 427 Mich. 301, 309, 399 N.W.2d 1 (1986) (citation omitted). ⁴

The statute of limitations bars plaintiffs' claims in the instant cases, absent some exception, because the assaults are alleged to have occurred some forty to fifty years ago. Such assaults would inflict immediate damage on the children so abused. ⁵ Subsequent damage arising after the initial assaults would not give rise to a new cause of action or renew the running of the limitation period. Larson, supra at 315-316, 399 N.W.2d 1. ⁶

Plaintiffs claim that the statute of limitations is tolled because either the discovery rule or the insanity disability grace period serves to extend the limitation period for claims by adults of childhood sexual abuse that has been repressed from the victims' active memories. For reasons discussed below, we find that neither the discovery rule, which has been developed through our common-law authority, nor the statutory exception appropriately applies to extend the period for filing suit in this context.

A

The policy goals underlying statutes of limitation are well established:

[Statutes of limitation] encourage the prompt recovery of damages; they penalize plaintiffs who have not been industrious in pursuing their claims; they "afford security against stale demands when the circumstances would be unfavorable to a just examination and decision"; they relieve defendants of the prolonged fear of litigation; they prevent fraudulent claims from being asserted; and they " 'remedy ... the general inconvenience resulting from delay in the assertion of a legal right which it is practicable to assert.' " [Lothian v. Detroit, 414 Mich. 160, 166-167, 324 N.W.2d 9 (1982) (citations omitted).]

"In summary, the primary purposes behind statutes of limitations are: 1) to encourage plaintiffs to pursue claims diligently, and 2) to protect defendants from having to defend against stale and fraudulent claims." Larson, supra at 311, 399 N.W.2d 1.

Despite the importance of these goals, we have recognized that the tension between the need to protect against stale claims and the injustice of precluding some claims requires application of a discovery rule in certain circumstances. When a plaintiff would otherwise be denied a reasonable opportunity to bring suit because of the latent nature of the injury or the inability to discover the causal connection between the injury and the defendant's breach of duty owed to the plaintiff, we have applied the discovery rule to prevent unjust results. "[B]ecause statutes of limitation do not evidence a legislative intent to extinguish a cause of action before the plaintiff is aware of the possible cause of action, we have adopted the discovery rule in the appropriate instances." Chase v. Sabin, 445 Mich. 190, 196, 516 N.W.2d 60 (1994).

Where the discovery rule is found to be appropriate, a "plaintiff's claim accrues when the plaintiff discovers, or through the...