Pusquilian v. Cedar Point, Inc., Docket No. 10712

• Decision Date: 26 June 1972
• Docket Number: Docket No. 10712,No. 1,1
• Citation: 41 Mich.App. 399,200 N.W.2d 489
• Parties: Jessie B. PUSQUILIAN and Peter Pusquilian, Plaintiffs-Appellants, v. CEDAR POINT, INC., an Ohio corporation, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 489

200 N.W.2d 489

41 Mich.App. 399

Jessie B. PUSQUILIAN and Peter Pusquilian, Plaintiffs-Appellants, v. CEDAR POINT, INC., an Ohio corporation, Defendant-Appellee.

Docket No. 10712.

Court of Appeals of Michigan, Division No. 1.

June 26, 1972.

Leave to Appeal Denied Sept. 12, 1972.

Released for Publication Sept. 15, 1972.

Haig Avedisian, Detroit, for plaintiffs-appellants.

Harvey, Kruse & Westen, Detroit, for defendant-appellee.

Before LEVIN, P.J., and BRONSON and VanVALKENBURG, ^* JJ.

BRONSON, Judge.

Plaintiffs, Jessie B. and Peter Pusquilian, appeal an accelerated judgment of dismissal entered in the Wayne mCounty Circuit Court pursuant to GCR 1963, 116 in favor of defendant, an Ohio corporation.

Plaintiffs are residents of Dearborn, Michigan. Defendant operates a private, profit-making amusement park in Sandusky, Ohio. Plaintiff Jessie B. Pusquilian claims that on July 13, 1967, she purchased in Michigan an admission ticket to defendant's amusement park and that she was injured in Ohio while using one of the facilities provided by defendant when the seat she occupied collapsed.

This suit was commenced in the Wayne County Circuit Court on July 13, 1970. On August 5, 1970, defendant moved for an accelerated judgment of dismissal pursuant to GCR 1963, 116. The bases of the motion were that the court lacked jurisdiction over the defendant and that the cause of action was barred by the statute of limitations. The trial court was directed to the Michigan 'borrowing' statute, M.C.L.A. § 600.5861; M.S.A. § 27A.5861, and the Ohio statute of limitations, O.R.C.A. § 2305.10. The parties agreed that Ohio's statute of limitations for causes of action of the nature asserted in this case was two years, and that this suit was commenced in Michigan beyond two years but within Michigan's three-year statute of limitations. M.C.L.A. § 600.5805(7); M.S.A. § 27A.5805(7). The trial judge granted defendant's motion. Plaintiff's motion to set aside the accelerated judgment of dismissal was denied.

Michigan law is well settled. Liability for an alleged tort is governed by the substantive law of the place of injury. Kaiser v. North, 292 Mich. 49, 289 N.W. 325 (1939); Abendschein v. Farrell, 382 Mich. 510, 170 N.W.2d 137 (1969). However, where the statute of limitations relates only to 'remedy' and not 'right', Michigan holds that the limitations period for bringing a suit is governed by the law of the forum. Home Life Insurance Co. v. Elwell, 111 Mich. 689, 70 N.W. 334 (1897); Dowse v. Gaynor, 155 Mich. 38, 118 N.W. 615 (1908); Fries v. Holland Hitch Co., 12 Mich.App. 178, 162 N.W.2d 672 (1968); Maki v. George R. Cooke Co., 124 F.2d 663 (CA 6, 1942); Baldwin v. Brown, 202 F.Supp. 49 (ED Mich., 1962); Lewis v. Food Machinery & Chemical Corp., 245 F.Supp. 195 (WD Mich., 1965).

If our inquiry ended here, the Michigan three-year statute of limitations, M.C.L.A. § 600.5805(7); M.S.A. § 27A.5805(7), would clearly apply. Michigan, however, has adopted the Uniform Statute of Limitations on Foreign Claims Act (hereinafter 'Act'), M.C.L.A. § 600.5861; M.S.A. § 27A.5861. Ohio does not have a similar statute. The Act reads as follows:

'Sec. 5861. (1) As used in this section, 'claim' means any right of action which may be asserted in a civil action or proceeding and includes, but is not limited to, a right of action created by statute.

'(2) 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.

'(3) The periods of limitation prescribed in this section apply only to a claim upon which action is commenced more than 1 year after the effective date of this act.

'(4) This section shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact it.

'(5) This section may be cited as the uniform statute of limitations on foreign claims act.'

Under subsection (2), when a claim accrues outside of Michigan, the applicable statute of limitations is either Michigan's or that of the place where the claim accrues, whichever is shorter. Therefore if the Act applies, the Ohio statute of limitations governs and plaintiffs are barred from bringing suit in Michigan.

Plaintiffs claim that he Act does not apply when the other forum involved has not enacted it. They contend that to apply the Act in such a case would be to contravene the general purpose set out in subsection (4) of making uniform the laws of each state which has enacted it. The thrust of this argument is that the Act applies only when the foreign state has reciprocally agreed to apply the shorter statute of limitations. We do not agree that reciprocity is fundamental to the operation of this Act.

Our research has not revealed any case on point under this Act. Subsection (4), however, is found in many uniform laws promulgated by the National Conference of Commissioners on Uniform Laws. See, E.g., Uniform Simultaneous Death Act, ¹ § 7, 9C U.L.A. p. 160; Uniform Securities Ownership by Minors Act, § 4, 9C U.L.A., 1967 Cum.Supp. p. 85. The problem before us has been considered by some courts in dealing with other uniform laws. Ex parte Morgan, 86 Cal.App.2d 217, 194 P.2d 800 (1948) (Uniform Criminal Extradition Act); Abramson v. Abramson, 161 Neb. 782, 74 N.W.2d 919 (1956) (Uniform Judicial Notice of Foreign Law Act). These cases held that reciprocity is not fundamental to a uniform act's operation and that whether a foreign state has adopted the Uniform Act is irrelevant to its operation in the forum state, unless reciprocity is expressly called for in the act itself. ² The Abramson court reasoned that the Uniform Act in question, when enacted in Nebraska, became a Nebraska law applicable to any action brought in a Nebraska court seeking to enforce rights based on the common or statutory law of any other state, whether or not that state had enacted the same law. The same reasoning applies in this case.

There is nothing in the Uniform Statute of Limitations on Foreign Claims Act which calls for reciprocal action by the foreign state as a prerequisite to its application in Michigan. The Act was drafted to bring a uniform approach to the problems it deals with. Vernon, Report on the First Tentative Draft of the Uniform Statute of Limitations on Foreign Claims Act, 3 Wayne L.Rev. 187 (1957). See, also, Proyect, A Study of Uniform Statute and the Present State of the Law Limiting Claims Arising in Foreign States, 4 Wayne L.Rev. 123 (1958). The approach suggested by plaintiffs would only serve to bring more confusion to the problem rather than simplifying it. Subsection 4, on which plaintiffs rely, does not call for a contrary result. It merely calls for a uniform interpretation of the Act in those states which adopt it so that...