Pryber v. Marriott Corp.
| Decision Date | 03 June 1980 |
| Docket Number | Docket No. 48150 |
| Citation | 296 N.W.2d 597,98 Mich.App. 50 |
| Parties | Barbara PRYBER and Albert J. Pryber, Plaintiffs-Appellants, v. MARRIOTT CORPORATION, a Foreign Corporation, Defendant-Appellee. 98 Mich.App. 50, 296 N.W.2d 597 |
| Court | Court of Appeal of Michigan — District of US |
[98 MICHAPP 52] Ray H. Boman, Detroit, for plaintiffs-appellants.
Ellen C. Nowicki, Birmingham, for defendant-appellee.
Before R. B. BURNS, P. J., and GILLIS and RILEY, JJ.
This is a personal injury action. Plaintiffs allege that as a result of defendant's negligence plaintiff Barbara Pryber was injured while at defendant's amusement park in Gurnee, Illinois. The injury occurred on July 3, 1976. Plaintiffs' complaint was filed on June 29, 1979. Defendant moved for accelerated judgment, GCR 1963, 116.1(5), raising a statute of limitations defense. The motion was granted on August 29, 1979. Plaintiffs appeal as of right. GCR 1963, 806.1.
Plaintiffs first contend that the defendant waived the statute of limitations defense by failing to raise it in its first responsive pleading. The contention is without merit.
Defendant filed its answer on July 26, 1979. An amended answer was filed within 15 days. The statute of limitations defense was raised in the [98 MICHAPP 53] amended pleading. The failure by a defendant to include an affirmative defense in his first responsive pleading generally waives that defense. GCR 1963, 116.1, 111.3. However, GCR 1963, 118.1 provides that a party may amend his pleading once as a matter of course within 15 days after it is served if the pleading is one to which no responsive pleading is required and the action has not been placed on the trial calendar. The amended pleading relates back to and becomes a part of the original pleading. GCR 1963, 118.4. Raising the statute of limitations defense in this manner supersedes the imposition of a waiver based on Rule 111. Manufacturers Construction Co. v. Covenant Investment Co., 43 Mich.App. 123, 125-126, 204 N.W.2d 54 (1972), 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed.), p. 200.
Plaintiffs' next contention presents a more difficult problem. Plaintiff Barbara Pryber's injury occurred on July 3, 1976. Plaintiffs' cause of action accrued on that date. M.C.L. § 600.5827; M.S.A. § 27A.5827. On that date, M.C.L. § 600.5861(2); M.S.A. § 27A.5861(2) read:
"The period of limitation applicable to a claim accruing outside of this state shall be either that prescribed by the law of the place where the claim accrued or by the law of this state, whichever bars the claim."
The applicable Illinois statute, Ill.Rev.Stat., Ch. 83, § 15, provides a two-year period in which an action for personal injuries can be brought. The applicable Michigan statute, M.C.L. § 600.5805(7) M.S.A. § 27A.5805(7), provides a three-year period in which an action for personal injuries can be brought. Thus, plaintiffs' cause of action was barred by application of the Illinois statute of limitations on July 3, 1978.
[98 MICHAPP 54] However, 1978 P.A. 542, § 1, effective December 22, 1978, amended § 5861 to read as follows:
(Emphasis supplied.) M.C.L. § 600.5861; M.S.A. § 27A.5861 as amended.
The present action was filed on June 29, 1979. The lower court ruled that M.C.L. § 600.5861(2); M.S.A. § 27A.5861(2), prior to its amendment, controlled and effectively barred plaintiffs' cause of action. The lower court reasoned that the Legislature was without authority to revive a cause of action which had been barred by the statute of limitations. On this basis, accelerated judgment was granted.
Plaintiffs contend that the lower court erred, arguing that the Legislature has the authority to revive by statute a cause of action which has been barred.
A two-step analysis is required to resolve the issue. First, we must determine the legislative intent underlying the amendatory act. Second, we must determine whether the Federal or state constitutions prevent the Legislature from carrying out its intention.
At the outset, we note that M.C.L. § 600.5861; M.S.A. § 27A.5861 is a statute of limitations rather than a choice-of-law statute. The statute "borrows" the limitations rule of another state and makes it the law of the forum for the purposes of the particular [98 MICHAPP 55] litigation. See Leflar, American Conflicts Law, § 128, p. 307.
Statutes of limitations operate prospectively unless an intent to have the statute operate retrospectively clearly and unequivocally appears from the context of the statute itself. In re Davis' Estate, 330 Mich. 647, 652, 48 N.W.2d 151 (1951), 20 Michigan Law & Practice, Statute of Limitations, § 3, p. 546. The last sentence of § 5861, which reads: "This amendatory act shall be effective as to all actions hereinafter commenced and all actions heretofor commenced now pending in the trial or appellate courts", clearly indicates the legislative intent that the statute be applied retroactively. The effect of such application under the facts of the instant case is to revive the cause of action which had been barred by the running of the prior statute of limitations.
This, however, does not end our inquiry into the legislative intent. The reason for the continuation of that inquiry is the existence of M.C.L. § 600.5869; M.S.A. § 27A.5869, 1 which provides in relevant part:
"All actions * * * shall be governed and determined according to the law under which the right accrued, in respect to the limitations of such actions."
The statutes are in apparent conflict. Section 5869 indicates that the applicable statute of limitations is that in effect at the time plaintiffs' cause of action accrued, M.C.L. § 600.5861(2); M.S.A. § 27A.5861(2), prior to its amendment. See Kennedy v. Local 38, United Brewery, Flour, Cereal, Soft Drink & Distillery Workers of America, 3 Mich.App. 700, 705-706, 143 N.W.2d 596 (1966). Section [98 MICHAPP 56] 5861 as amended indicates that it is the applicable statute of limitations.
Statutes in pari materia are those which relate to the same thing or which have a common purpose. Palmer v. State Land Office Board, 304 Mich. 628, 8 N.W.2d 664 (1943). The statutes here are in pari materia. Where two statutes are in pari materia and are in irreconcilable conflict, the one last enacted will control or be regarded as an exception to or qualification of the earlier statute. Metropolitan Life Ins. Co. v. Stoll, 276 Mich. 637, 640-641, 268 N.W. 763 (1936). Application of this rule requires the conclusion that the Legislature intended that § 5861 apply in the instant case. This...
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