Osborne by Osborne v. Arrington, 84638

• Decision Date: 16 October 1986
• Docket Number: No. 84638,84638
• Citation: 394 N.W.2d 67,152 Mich.App. 676
• Parties: Darrell OSBORNE, Jr., a minor by Bandlyn OSBORNE, his conservator, and Bandlyn Osborne and Darrell Osborne, Sr., Individually, Plaintiffs-Appellees, v. Dr. Robyn ARRINGTON, Dr. Boyman and Detroit-Macomb Hospital Association, Jointly and Severally, Defendants, Sisters of Mercy Health Corporation d/b/a St. Joseph Mercy Hospital, Defendant- Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 67

394 N.W.2d 67

152 Mich.App. 676

Darrell OSBORNE, Jr., a minor by Bandlyn OSBORNE, his conservator, and Bandlyn Osborne and Darrell Osborne, Sr., Individually, Plaintiffs-Appellees, v. Dr. Robyn ARRINGTON, Dr. Boyman and Detroit-Macomb Hospital Association, Jointly and Severally, Defendants Sisters of Mercy Health Corporation d/b/a St. Joseph Mercy Hospital, Defendant- Appellant.

No. 84638.

Court of Appeals of Michigan.

Submitted April 7, 1986.

Decided June 17, 1986.

Released for Publication Oct. 16, 1986.

Thurswell, Chayet & Weiner by Gerald E. Thurswell and Janet M. Brandon, Southfield, for plaintiffs-appellees.

Kitch, Saurbier, Drutchas, Wagner & Kenney, P.C., by Stephen M. Kelley and James D. Zazakis, Detroit, for St. Joseph Mercy Hospital.

Before DANHOF, C.J., and HOOD and SULLIVAN, JJ.

PER CURIAM.

We granted leave to defendant St. Joseph Mercy Hospital to consider the propriety of the trial court's denial of defendant's motion for accelerated judgment and to compel arbitration. Plaintiff Bandlyn Osborne signed an arbitration agreement when she entered the defendant hospital on September 2, 1978. Her son, Darrell Osborne, Jr. was born that same day. The following day, Ms. Osborne signed an arbitration agreement on behalf of her son. On September 7, 1978, both mother and child were discharged from the hospital, and no revocation of the arbitration agreements was made within the sixty-day period provided under the Michigan Malpractice Arbitration Act (MMAA), M.C.L. Sec. 600.5042(3); M.S.A. Sec. 27A.5042(3).

It is undisputed that the child is mentally incompetent, and he allegedly suffers from brain damage, cerebral palsy and mental retardation. When plaintiffs filed a malpractice complaint in the circuit court, defendant moved for accelerated judgment and to compel arbitration pursuant to the agreements. The trial court denied defendant's motion, concluding that the plaintiffs, as the parties seeking to avoid the arbitration agreements, had the burden of proof and that since Darrell Osborne, Jr., was mentally incompetent his disability tolled the running of the sixty-day revocation period. The circuit court found further that, since the revocation period was tolled, the plaintiffs could still revoke the arbitration agreement and held that the arbitration agreement had been timely revoked as a matter of law. We reverse and remand.

The relevant provision of the MMAA, M.C.L. Sec. 600.5046(2); M.S.A. Sec. 27A.5046(2) provides:

"A minor child shall be bound by a written agreement to arbitrate disputes, controversies, or issues upon the execution of an agreement on his behalf by a parent or legal guardian. The minor child may not subsequently disaffirm the agreement".

The trial court relied upon M.C.L. Sec. 600.5851(1); M.S.A. Sec. 27A.5851(1), finding that the statute created an exemption from the running of the period of limitation in the MMAA. Section 5851(1) provides in relevant part:

"If the person first entitled to make an entry or bring an action is under 18 years of age, insane or imprisoned at the time of his claim accrues, he or those claiming under him shall have 1 year after his disability is removed through death or otherwise, to make the entry or bring the action although the period of limitations has run."

This Court has recently noted that Sec. 5046(2) clearly changes the common law to permit a parent to bind a child to an arbitration agreement. Benson v. Granowicz, 140 Mich.App. 167, 169, 363 N.W.2d 283 (1984), lv. den. 422 Mich. 976 (1985). Plaintiffs rely on this Court's decisions in Amwake v. Mercy Memorial Hospital, 92 Mich.App. 546, 285 N.W.2d 369 (1979), Paavola v. St. Joseph Mercy Hospital Corp, 119 Mich.App. 10, 325 N.W.2d 609 (1982), DiPonio v. Henry Ford Hospital, 109 Mich.App. 243, 311 N.W.2d 754 (1981), and Wallisch v. Fosnaugh, 126 Mich.App. 418, 336 N.W.2d 923 (1983), lv. den., 418 Mich. 871 (1983), in support of their argument that the arbitration agreement signed on behalf of the infant Darrell Osborne, Jr., had been timely revoked because he is mentally incompetent, and thus the saving provision for mental incompetents found in M.C.L. Sec. 600.5851(1) applies. The trial court adopted plaintiffs' argument in its decision.

However, the instant case can be readily distinguished from the cited cases on the facts. In Amwake, this Court, analogizing to Sec. 5851(1), found that the filing of a medical malpractice complaint by plaintiff's special guardian impliedly revoked the arbitration agreement signed by plaintiff because the adult plaintiff was in a comatose state which prevented her from comprehending her rights or from exercising them in her best interest.

In DiPonio, supra, plaintiffs' decedent signed an arbitration agreement before he died. Plaintiffs filed suit and later revoked the arbitration agreement signed by the decedent after "discovering it". On leave to appeal, this Court affirmed the circuit court's denial of defendant's motion for accelerated judgment and to compel arbitration, holding that, since plaintiffs' decedent's death was akin to a disability, the sixty-day revocation period was tolled during the period of disability and that the removal of the disability occurred when plaintiffs were appointed as personal representatives. 109 Mich.App. 253, 311 N.W.2d 754. Since the filing of the malpractice complaint was within the sixty days following plaintiffs' appointment as personal representatives, timely revocation had occurred. Id. The Court also was persuaded by the "discovery" rule in tolling the sixty-day revocation period as the personal representatives had not been aware of the existence of the arbitration agreement.

In Paavola, supra, this Court held that the appointment of a guardian for a mental incompetent does not remove the disability and commence the running of the limitation period for purposes of M.C.L. Sec. 600.5851(1). 119 Mich.App. 14, 325 N.W.2d 609; see also Wallisch, supra, 126 Mich.App. p. 426, 336 N.W.2d 923. All of these cases which analogize to the statute of limitations tolling period for mental incapacity involved individuals who signed the arbitration agreements and later became disabled for one reason or another. In the instant case, at no time during the revocation period was Bandlyn Osborne under a disability that affected her statutory power to create the agreement or the corresponding power to revoke the arbitration agreement.

Further, the legislative determinations that (1) a parent may bind his or her minor child to an arbitration agreement and (2) a minor child may not subsequently disaffirm have been upheld by this Court in Benson v. Granowicz, supra; McKinstry v. Valley Obstetrics-Gynecology Clinic, PC (After Remand), 146 Mich.App. 307, 380 N.W.2d 93 (1985), lv. gtd. 424 Mich. 877 (1986), and Roberts v. McNamara-Warren Community Hospital, 138 Mich.App. 691, 360 N.W.2d 279 (1984). In Benson, plaintiff mother executed an arbitration agreement on behalf of her eight-month-old minor son, but argued...