Stephens v. Dixon

• Decision Date: 05 April 1993
• Docket Number: Docket No. 137734
• Citation: 199 Mich.App. 73,500 N.W.2d 749
• Parties: Shirley STEPHENS, Plaintiff-Appellant, v. C.J. DIXON, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 749

500 N.W.2d 749

199 Mich.App. 73

Shirley STEPHENS, Plaintiff-Appellant, v. C.J. DIXON, Defendant-Appellee.

Docket No. 137734.

Court of Appeals of Michigan.

Submitted Nov. 18, 1992, at Detroit.

Decided April 5, 1993, at 9:20 a.m.

Released for Publication June 24, 1993.

Law Offices of Peter B. Bundarin by Peter B. Bundarin, Canton, for plaintiff-appellant.

Romain, Donofrio, Kuck & Egerer, P.C. by Karen L. Hahn, Southfield, for defendant-appellee.

Before DOCTOROFF, C.J., and MURPHY and MARK J. CAVANAGH, JJ.

MARK J. CAVANAGH, Judge.

Plaintiff appeals as of right from the trial court's order that granted defendant's motion for summary disposition based upon the three-year statute of limitations for negligence actions. M.C.L. § 600.5805(1) and (8); M.S.A. § 27A.5805(1) and (8). We reverse and remand for further proceedings.

On June 23, 1987, plaintiff was involved in an automobile accident. Although plaintiff was thrown about the passenger compartment and lost consciousness, she recovered within a period of weeks and believed that she had suffered no long-term injuries. In February of 1989, plaintiff started having neck pain, which increased in severity until she sought medical attention in December. The diagnosis was spondylosis of the neck vertebrae, an alleged latent result of the accident that had occurred in 1987.

On November 20, 1990, plaintiff filed her complaint, and on December 18, 1990, defendant moved for summary disposition. According to the defendant, the lawsuit was time-barred because the three-year period of limitation had expired on June 23, 1990, five months before plaintiff had filed her suit. In response, plaintiff argued that the period of limitation was tolled until she discovered or should have discovered a serious impairment of body function, the threshold established by M.C.L. § 500.3135; M.S.A. § 24.13135 for tort liability caused by the ownership, maintenance, or use of a motor vehicle. The trial court ruled that these facts could not be used to extend the period of limitation; a ruling with which we must disagree.

In Mielke v. Waterman, 145 Mich.App. 22, 377 N.W.2d 328 (1985), the plaintiff was injured in an automobile accident on August 19, 1977. In his lawsuit, filed on November 22, 1983, the plaintiff alleged that a serious impairment of body function, epilepsy caused by posttraumatic scarring of the brain, first manifested itself on May 3, 1982. Consequently, the plaintiff argued that his cause of action accrued on that date and was not time-barred. This Court agreed and went on to explain that the plaintiff's cause of action did not accrue "until he could allege all of the essential elements of the cause of action in a proper complaint." Id. at 26, 377 N.W.2d 328.

In Horan v. Brown, 148 Mich.App. 464, 384 N.W.2d 805 (1986), the plaintiff suddenly and unexpectedly experienced facial paralysis that resulted from an automobile accident she had been involved in four years earlier. Relying on Mielke, this Court again held that the period of limitation was tolled by operation of the discovery rule. Id. 148 Mich.App. at 468, 384 N.W.2d 805.

In a somewhat different factual setting, this Court repeated its agreement with the proposition that a cause of action under the no-fault act does not accrue until the person discovers or should have discovered a serious impairment of body function. Sherrell v. Bugaski, 169 Mich.App. 10, 16, 425 N.W.2d 707 (1988). In that case, however, we found that all the necessary elements were present when the plaintiff filed her first lawsuit in 1980 and that her cause of action accrued when she discovered the lower back injuries that formed the basis of her first action. Consequently, the plaintiff's second lawsuit, based on a subsequently discovered herniated disc and filed on May 8, 1986, was barred. With respect to damages that were discovered later, this Court explained that "they give rise to no new cause of action, nor does the statute of limitations begin to run anew as each item of damage is incurred." Id.

In Hohendorf v. Meagher, 188 Mich.App. 400, 470 N.W.2d 418 (1991), a case with almost the same facts as Sherrell, the plaintiffs' negligence action, based on soft-tissue back and neck injuries, was filed on April 18, 1984, and was dismissed, apparently because the court found that the injured plaintiff had not sustained a serious impairment of body function. The plaintiffs' second negligence action, based on a recently diagnosed herniated disc, was filed on July 18, 1989, and was also dismissed. On appeal, this Court concluded that the period of limitation for the plaintiffs' cause of action had not been tolled until discovery of the herniated disc. Id. at 403, 470 N.W.2d 418.

In arriving at its decision, the Hohendorf Court relied on Gagliardi v. Flack, 180 Mich.App. 62, 446 N.W.2d 858 (1989), for the proposition that "in an automobile negligence case, the statute of limitations is not tolled until such time as the plaintiff discovered or should have discovered that his injury constituted a serious body function." Hohendorf, supra 188 Mich.App. at 403, 470 N.W.2d 418.

In Gagliardi, the plaintiff injured his wrist in an automobile accident that occurred on August 14, 1982. The plaintiff admitted in his deposition that, as a result of his wrist injury, he was totally disabled for six weeks immediately following the accident and partially disabled until wrist surgery was performed on May 7, 1985. Gagliardi, supra 180 Mich.App. at 64, 446 N.W.2d 858. When the plaintiff filed his suit on October 24, 1985, he convinced the trial court that the period of limitation should be tolled until such time as he discovered or should have discovered that his wrist injury constituted a serious impairment of body function. However, the majority of the Gagliardi panel was not convinced, and expressed disagreement with the application of "the tolling doctrine to the entire spectrum of auto accident injuries," a suggestion that the majority attributed to Mielke and Horan. Id. at 76, 446 N.W.2d 858.

The apparent split of authority occasioned by Gagliardi and Mielke was certified to the Supreme Court, and leave to appeal was denied because the Supreme Court was "not persuaded that an actual conflict presently exist[ed] in the Court of Appeals." 433 Mich. 923, 450 N.W.2d 883 (1989). The only distinguishing feature that we can find that would be consistent with the Supreme Court order and at the same time reconcile the two lines of authority appears to be a narrow exception that would toll the period of limitation with respect to latent diseases, an exception discussed in Gagliardi and recognized earlier by a New Jersey court. Gagliardi, supra 180 Mich.App. at 72-73, 446 N.W.2d 858, citing Mancuso v. Mancuso, 209 N.J.Super. 51, 506 A.2d 1253 (1986).

In Mancuso, the plaintiff was involved in an automobile collision and "sustained what appeared to be superficial soft tissue injuries of minimal consequence." Id. at 53, 506 A.2d 1253. Sometime later, the plaintiff began experiencing neurological symptoms, and her problem was diagnosed as Parkinson's disease. In her attempt to avoid summary disposition, the plaintiff argued that the "potential causal connection between a severe exacerbation of Parkinson's disease and an apparently minor trauma sustained in an automobile accident that apparently resulted only in negligible soft tissue injury is a matter of such highly specialized medical knowledge that [she should...