Sherrell v. Bugaski, Docket No. 95962

• Decision Date: 18 July 1988
• Docket Number: Docket No. 95962
• Citation: 169 Mich.App. 10,425 N.W.2d 707
• Parties: Mary A. SHERRELL, Plaintiff-Appellee, v. Bobby BUGASKI and City of Detroit, Defendants-Appellants. 169 Mich.App. 10, 425 N.W.2d 707
• Court: Court of Appeal of Michigan — District of US

Page 707

425 N.W.2d 707

Mary A. SHERRELL, Plaintiff-Appellee, v. Bobby BUGASKI and City of Detroit, Defendants-Appellants.

Docket No. 95962.

169 Mich.App. 10, 425 N.W.2d 707

Court of Appeals of Michigan.

Submitted April 5, 1988.

Decided June 6, 1988.

Released for Publication July 18, 1988.

[169 MICHAPP 11] Turner & Turner, P.C. (by Lauri R. Ellias), Southfield, for plaintiff-appellee.

Sullivan, Ward, Bone, Tyler, Fiott & Asher, P.C. (by Ronald A. Weglarz), Detroit, for defendants-appellants.

Before GILLIS, P.J., and WAHLS and DOCTOROFF, JJ.

DOCTOROFF, Judge.

Defendants appeal by leave granted from the decision of the trial court denying their motion for summary disposition on the basis of the statute of limitations and res judicata. MCR 2.116(C)(7). We reverse.

[169 MICHAPP 12] On January 7, 1979, plaintiff was involved in an automobile accident with a City of Detroit police car driven by defendant Bobby Bugaski. On April 24, 1980, plaintiff filed suit against defendants for injuries she sustained as a result of the accident. Plaintiff alleged that her injuries included severe headaches, pain in her lower back, and shock to her nervous system. On July 13, 1983, the trial court granted defendants' motion for summary judgment on the basis that there was no genuine issue of material fact as to the issue of serious impairment of bodily function under M.C.L. Sec. 500.3135; M.S.A. Sec. 24.13135. We affirmed the trial court in Sherrell v. Bugaski, 140 Mich.App. 708, 364 N.W.2d 684 (1984).

On November 21, 1985, plaintiff discovered that she had a herniated disc, which she alleges was the result of the automobile accident. On May 8, 1986, plaintiff once again filed a negligence action against defendants. Defendants then filed a motion for summary disposition, which was denied.

On appeal, defendants raise two issues. They claim that the trial court erred by denying their motion for summary disposition on the basis that plaintiff's suit was not barred under the doctrine of res judicata and by denying it on the basis that the period of limitations had not expired.

First as to the issue of res judicata, we find that the trial court erred by denying defendants' motion for summary disposition on this basis.

The doctrine of res judicata is a manifestation of the recognition that interminable litigation leads to confusion and chaos for the litigants and results in the inefficient use of judicial resources. Rogers v. Colonial Federal Savings & Loan Ass'n of Grosse Pointe Woods, 405 Mich. 607, 615, 275 N.W.2d 499 (1979). Under the broad application of res judicata that has been adopted in Michigan, claims that [169 MICHAPP 13] were actually litigated are barred from the second action as well as those claims arising out of the same transaction which plaintiff could have brought, but did not. Gose v. Monroe Auto Equipment Co., 409 Mich. 147, 160, 294 N.W.2d 165 (1980). This Court in Ward v. DAIIE, 115 Mich.App. 30, 37, 320 N.W.2d 280 (1982), set forth the elements of res judicata:

"The doctrine of res judicata provides that where two parties have fully litigated a particular claim and a final judgment has resulted, that claim may not be relitigated by either party. In Tucker v Rohrback, [13 Mich 73, 75 (1864) ] the Supreme Court delineated three prerequisites for a prior judgment to constitute a bar in a subsequent action: (1) the former action must have been decided on the merits; (2) the same matter contested in the second action must have been decided in the first; and (3) the two actions must be between the same parties or privies."

There is no question but that the suit which plaintiff filed in April, 1980, was against the very same defendants as are being sued in the instant case. Additionally, there is little dispute that plaintiff's first suit was decided on the merits presented. The trial court in the 1980 suit granted defendants' motion for summary disposition because there was no genuine issue as to the damages plaintiff sustained in the accident; as a matter of law, therefore, there was no serious impairment of bodily function. This Court affirmed in Sherrell, supra. The previous decision was thus final and was made on the merits. See Carter v. SEMTA, 135 Mich.App. 261, 265, 351 N.W.2d 920 (1984), lv. den. 422 Mich. 881 (1985).

Plaintiff in argument would have us accept that the second Ward element is not present in this [169 MICHAPP 14] case. She asserts that, because she had an additional injury which manifested itself only after the first lawsuit, the same matter is not being contested in the instant case as was decided in the prior suit. In support of this contention, plaintiff relies on Horan v. Brown, 148 Mich.App. 464, 466, 384 N.W.2d 805 (1986), lv. den. 425 Mich. 876 (1986), in which the Court held that a claim under the no-fault act does not accrue for purposes of the statute of limitations until the resulting injuries have been discovered. Further, plaintiff asserts that the application of res judicata is limited to those claims which she could have raised in the first lawsuit, Courtney v. Feldstein, 147 Mich.App. 70, 75, 382 N.W.2d 734 (1985), lv. den. 424 Mich. 901 (1986), contending that she could not have raised this injury in the first lawsuit as she had not discovered it.

We must disagree with plaintiff's reliance on Horan and her conclusions. Plaintiff's claim is barred by the doctrine of res judicata, as the matter raised in the present case was certainly adjudicated in the prior lawsuit. Ward, supra. Here, as in the first lawsuit, plaintiff is suing defendants for negligence in operating a motor vehicle. The previous suit was dismissed expressly on the issue of lack of damages. Simply because the facts on the issue of plaintiff's damages have changed, the application of res judicata is not barred. The only instance where a change in fact may cause an evasion of the application of res judicata is in an area of law where there are important competing considerations, such as worker's compensation. See Gose, supra, 409 Mich. p. 176, 294 N.W.2d 165. In worker's compensation cases, the remedial purpose of the statute is to maintain the fiscal integrity of persons whose wage-earning ability has been suspended or terminated. Id. Thus, an injury discovered[169 MICHAPP 15] after a lawsuit would be considered in recalculating a plaintiff's damages and res judicata would not apply to bar such recalculation.

No such important remedial policy applies in the present personal injury case. As Justice Levin, dissenting on other grounds, pointed out in Gose:

"In a negligence action, the trier is required to predict the likely future complications and damages and to ascertain a lump sum to compensate for past, present and future damages. There is no modification of the verdict even where the passage of time proves the prediction erroneous, and a second suit for damages resulting from the same breach is not permitted even if there has been a change in physical condition or other circumstance. In this context, the defendant is entitled to rely on the plaintiff's having presented all claims arising from the breach. He only expects to have to defend one suit." Id., p. 199, 294 N.W.2d 165. (Emphasis added.)

We therefore conclude that plaintiff's change in physical condition does not warrant suspending the application of res judicata to bar her claim. We thus reverse the trial court's denial of d...