Rawlins v. Aetna Cas. & Sur. Division

• Decision Date: 05 September 1979
• Docket Number: Docket No. 78-3226
• Citation: 92 Mich.App. 268,284 N.W.2d 782
• Parties: Eileen RAWLINS, Individually and as next friend of Cynthia Blair, and Sheryl Blair, Plaintiffs-Appellants, v. AETNA CASUALTY & SURETY DIVISION, a Connecticut Corporation, doing business in Michigan, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 782

284 N.W.2d 782

92 Mich.App. 268

Eileen RAWLINS, Individually and as next friend of Cynthia Blair, and Sheryl Blair, Plaintiffs-Appellants, v. AETNA CASUALTY & SURETY DIVISION, a Connecticut Corporation doing business in Michigan, Defendant-Appellee.

Docket No. 78-3226.

Court of Appeals of Michigan.

Sept. 5, 1979.

Rehearing Denied Oct. 18, 1979.

Released for Publication Nov. 9, 1979.

Thomas H. Hay, Lansing, for plaintiffs-appellants.

Jonathan E. Raven, Lansing, for defendant-appellee.

Before ALLEN, P. J., and T. M. BURNS and HOLBROOK, ^* JJ.

HOLBROOK, Judge.

The instant action was brought by a surviving widow and her two children seeking survivor's loss benefits from their No-Fault automobile Insurer. Plaintiff Eileen Rawlins' husband died as a result of an automobile accident which occurred in the State of Texas on April 27, 1974. The accident was a one car collision involving only the decedent's automobile. At the time of the accident plaintiff wife and her two minor children were domiciled and residing in the State of Michigan. Their complaint states that they were dependent upon the decedent for their support. Defendant was the insurer of a second automobile, owned and operated by the plaintiff wife.

Plaintiffs claim they were unaware of their rights under plaintiff Eileen Rawlins' policy with defendant and, therefore, did not make a claim for benefits thereunder until advised to do so by their attorney. The first written notice of claim for benefits under the policy of insurance was made to the defendant on or about July 19, 1976. The present action was filed on September 16, 1976.

Both daughters, Cynthia and Sheryl, were under the age of 18 years at the time of the accident and for more than the first year following the accident. Cynthia was born September 12, 1960, and Sheryl was born March 10, 1958, according to the complaint.

Defendant filed a Motion for Accelerated Judgment on the ground that the action was barred by the statutory limitation period contained in the No-Fault Statute, M.C.L. § 500.3145; M.S.A. § 24.13145. A hearing was held before the trial court on July 21, 1978. Plaintiffs, in their answer to the motion, argued that the limitation period was one of notice and not of limitation, and that it would be unfair and inequitable to defeat the claim of the minor children.

The trial court issued an opinion on July 27, 1978, finding that the actions were barred by the statutory limitations period and therefore granted the defendant's Motion for Accelerated Judgment and dismissed the case.

Plaintiffs have filed an appeal of right from that order.

Plaintiffs raise three issues on appeal

I. Does the one-year limitation period provided for in M.C.L. § 500.3145 bar a minor's cause of action for recovery of survivors' loss benefits under the no fault act ?

It is plaintiffs' position on this issue that the minority provision of the Revised Judicature Act, M.C.L. § 600.5851; M.S.A. § 27A.5851, extends the time required to give notice or file a claim under the No-Fault Act's statutory limitation of one year, M.C.L. § 500.3145; M.S.A. § 24.13145, by giving minors a year of grace after the termination of their disability before requiring them either to give notice or file a claim.

It becomes necessary first to interpret the No-Fault statute, specifically M.C.L. § 500.3145 which reads as follows:

"Sec. 3145. (1) An action for recovery of personal protection insurance benefits payable under this chapter for accidental bodily injury may not be commenced later than 1 year after the date of the accident causing the injury unless written notice of injury as provided herein has been given to the insurer within 1 year after the accident or unless the insurer has previously made a payment of personal protection insurance benefits for the injury. If the notice has been given or a payment has been made, the action may be commenced at any time within 1 year after the most recent allowable expense, work loss or survivor's loss has been incurred. However, the claimant may not recover benefits for any portion of the loss incurred more than one year before the date on which the action was commenced. The notice of injury required by this subsection may be given to the insurer or any of its authorized agents by a person claiming to be entitled to benefits therefor, or by someone in his behalf. The notice shall give the name and address of the claimant and indicate in ordinary language the name of the person injured and the time, place and nature of his injury."

In the case of Davis v. Farmers Ins. Group, 86 Mich.App. 45, 47-49, 272 N.W.2d 334 (1978), the plaintiff brought an action to recover benefits under a policy of insurance issued to him by defendant. Farmers Insurance Group, for injuries sustained in a motorcycle accident. Defendant therein brought a motion for accelerated judgment under GCR 1963, 116.1(5), on the grounds that the claim was barred by the applicable statute of limitations. The trial court denied the motion and defendant therein appealed.

It was stated therein that the decision of the case depended upon an interpretation of M.C.L. § 500.3145(1); M.S.A. § 24.13145(1) and quoted the statute and then stated in part as follows:

"Plaintiff contends that the quoted section is not a limitation of actions provision, but rather a notice provision and therefore constitutes a bar to this action only if defendant establishes that it was prejudiced by the lack of notice, citing Carver v. McKernan, 390 Mich. 96, 211 N.W.2d 24 (1973).

"We disagree. Notice provisions have different objectives than statutes of limitation. Notice provisions are designed, Inter alia, to provide time to investigate and to appropriate funds for settlement purposes. Statutes of limitation are intended to prevent stale claims and to put an end to fear of litigation. Dillon v. Tamminga # 1, 64 Mich.App. 301, 236 N.W.2d 716 (1975).

"In Dolson v. Secretary of State, 83 Mich.App. 596, 269 N.W.2d 239 (1978), we dealt with the time limitation for recovery of personal protection insurance benefits claimed through an assigned claims plan, embodied in M.C.L. § 500.3174; M.S.A. § 24.13174. The time limitation contained in that section is determined by applying M.C.L. § 500.3145(1); M.S.A. § 24.13145(1), which provision is involved in the instant case. We concluded in Dolson that the specific objective of the time limitation is to insure that claims be settled while the evidence remains fresh. This objective is characteristic of a statute of limitation.

"In the case at bar, the language of the statute was intended as a limitation on actions for personal benefits arising under the no-fault act, with a mechanism for extending the one-year period upon filing of notice within the year. There is no requirement that plaintiff file notice in order to be able to take advantage of the full statutory period. That he is entitled to in any case. Notice simply gives him the benefit of an additional year's grace.

"Thus, we conclude that M.C.L. § 500.3145(1); M.S.A. § 24.13145(1) is a one-year statute of limitations, with a provision enabling claimants to extend the period for up to one additional year by giving notice. Plaintiff having neither filed a complaint nor given notice within the one-year period, is barred from now presenting his claim. The motion for accelerated judgment should have been granted."

We choose to follow Davis until our Supreme Court gives us a different interpretation. We are therefore constrained to rule as to the cause of action of Eileen Rawlins, that the statute of limitations in the No-Fault Statute is effective as applied to her.

We now proceed to determine if the statute of limitations in the act is subject to the minority provision of the Revised Judicature Act, M.C.L. § 600.5851; M.S.A. § 27A.5851, which reads as follows:

"Sec. 5851. (1) 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 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 section does not lessen the time provided for in section 5852."

The defendant argues that the limitation period set forth in the no-fault act is not affected by the minority savings provision of the Revised Judicature Act.

Plaintiff children argue that under the general statute of limitations provisions in the Revised Judicature Act, infancy is treated as a disability and minors are given a year of grace after termination of this disability in which to commence an action and that, applying this savings provision to the instant situation, the plaintiff-minors herein commenced an action for recovery of survivors' loss benefits within one year after reaching their majority. They further argue that this general savings provision then should fully apply to preserve the minors' cause of action under the no-fault statute.

The no-fault act contains its own statute of limitations. We now look for a case that is similar, I. e., involving a statute that contains its own statute of limitations and the issue is therein considered as to whether the general saving provisions of the Revised Judicature Act apply thereto.

The case of Lambert v. Calhoun, 394 Mich. 179, 229 N.W.2d 332 (1975), considers and rules on this issue. Therein Beverly Lambert through a representative commenced an action for damages for personal injuries three years and two months from the date of the automobile accident. Lambert, who was a minor at the time the action accrued, relied on the minority saving provision in the Revised Judicature Act which permits commencement of an action within one year after removal of the disability although the period of limitations has run. Lambert's action was brought under the Motor Vehicle Accident Claims Act, which...