Thomas v. Process Equipment Corp.

• Decision Date: 29 December 1986
• Docket Number: Docket No. 86608
• Citation: 154 Mich.App. 78,397 N.W.2d 224
• Parties: Alexander THOMAS and Thelma Thomas, Plaintiffs-Appellants, v. PROCESS EQUIPMENT CORPORATION; Stainless Products Corp.; Pittsburgh Paint and Glass Co. (PPG); Allied-Kelite Products Division, Richardson Chemical Co., a division of Richardson Co.; E.I. du Pont de Nemours & Company (du Pont); Chemcentral/Detroit Corp.; Ecclestone Chemical Corp., Defendants-Appellees. 154 Mich.App. 78, 397 N.W.2d 224, Prod.Liab.Rep.(CCH)P. 11,241
• Court: Court of Appeal of Michigan — District of US

Page 224

397 N.W.2d 224

Alexander THOMAS and Thelma Thomas, Plaintiffs-Appellants, v. PROCESS EQUIPMENT CORPORATION; Stainless Products Corp.;

Pittsburgh Paint and Glass Co. (PPG); Allied-Kelite

Products Division, Richardson Chemical Co., a division of

Richardson Co.; E.I. du Pont de Nemours & Company (du

Pont); Chemcentral/Detroit Corp.; Ecclestone Chemical

Corp., Defendants-Appellees.

Docket No. 86608.

154 Mich.App. 78, 397 N.W.2d 224, Prod.Liab.Rep.(CCH)P.

11,241

Court of Appeals of Michigan.

Submitted April 17, 1986.

Decided Aug. 18, 1986.

Released for Publication Dec. 29, 1986.

[154 MICHAPP 80] Clayton C. Jones, Detroit, for plaintiffs-appellants.

Harvey, Kruse, Westen & Milan, P.C. by Michael[154 MICHAPP 81] F. Schmidt and Maurice A. Borden, Detroit, for Process Equipment Corp. and Stainless Products Corp.

Shelton & Bourne by Haskell Shelton and Robert E. Bourne, Midland, for Pittsburgh Paint and Glass Co.

Barbier, Goulet, Petersmarck, Tolleson, Mead & Paige, P.C. by F. Peter Blake and Thomas H. Hill, Mt. Clemens, for Allied-Kelite Products Div., Richardson Chemical Co.

Fitzgerald, Hodgman, Rutledge, Cawthorne, King & Manion, P.C. by Vincent C. Rabaut, Jr., Detroit, for Ecclestone Chemical Corp.

Miller, Canfield, Paddock & Stone by Gilbert E. Gove and Claudia Roberts Ellmann, Detroit, for E.I. du Pont de Nemours & Co.

Zamplas, Paskin, Nagi, Baxter, Johnson & Walker, P.C. by Jeannette A. Paskin, Detroit, for ChemCentral/Detroit Corp.

Before KELLY, P.J., and SHEPHERD and SIMON ^*, JJ.

SIMON, Judge.

Plaintiffs appeal from an order granting defendants' motion for summary disposition pursuant to MCR 2.116(C)(7) on the grounds that plaintiffs' claim was barred by the expiration of the applicable period of limitation. We affirm.

On November 5, 1981, Alexander Thomas (hereafter plaintiff) was employed by Michigan Chrome and Chemical Corporation, mixing chemicals manufactured by Pittsburgh Paint and Glass Company [154 MICHAPP 82] (and supplied by Allied-Kelite Products Division, Richardson Chemical Company, a division of Richardson Company), E.I. du Pont de Nemours & Company (and supplied by ChemCentral/Detroit Corporation), and Ecclestone Chemical Corporation (also supplied by ChemCentral), in a tank manufactured and supplied by Stainless Products Corporation. When plaintiff mixed these chemicals according to the directions of his employer, an explosive reaction occurred which caused plaintiff to suffer second- and third-degree burns over approximately one-quarter of his body. According to the complaint, this explosion was caused by defendants' negligent design, manufacture, and sale of the chemicals and the mixing tank involved and defendants' breach of express and implied warranties made to Michigan Chrome and Chemical Corporation and plaintiff.

After several weeks of hospitalization and treatment, plaintiff filed a workers' compensation claim which was eventually redeemed. During the workers' compensation proceeding, plaintiff's compensation lawyer did not advise him of the viability of a products liability claim against the manufacturers of the chemicals, and plaintiff did not become aware of this possibility until he met with his present attorney in April or May of 1984. At the time of this meeting, plaintiff did not know the identities of any of the chemical manufacturers or suppliers. He knew only the names of the chemicals involved.

Seeing no other alternative, plaintiffs proceeded to file a "John Doe" complaint on November 2, 1984. After further investigation, plaintiffs discovered the identity of the chemical manufacturers, and upon receiving permission of the trial court by order, plaintiffs filed an amended complaint on April 30, 1985, naming the defendants. The defendants[154 MICHAPP 83] were all served by May 2, 1985. On May 28, 1985, defendants moved for summary disposition. The lower court held that the period of limitation was not tolled while plaintiffs sought the identity of the alleged tortfeasors and the court further noted that plaintiffs' diligence in attempting to identify defendants also did not toll the period of limitation. Consequently, because plaintiffs' action was commenced almost six months after the three-year period of limitation had expired, the trial court granted defendants' motion for summary disposition.

Plaintiffs have launched a two-prong attack on the lower court's opinion. They first argue that filing a "John Doe" complaint tolled the period of limitation because the defendants were named and served before the expiration of the summons from that complaint. We disagree.

In a products liability claim, as in this case, there is a period of limitation of three years from the accrual of such claim. M.C.L. Sec. 600.5805(9); M.S.A. Sec. 27A.5805(9). Plaintiffs attempted to avoid the limitations bar by filing a "John Doe" complaint, i.e., naming no specific defendants, but instead referring to them as "XYZ Corp.", etc. This type of complaint is authorized by the court rules:

"(1) Persons who are or may be interested in the subject matter of an action, but whose names cannot be ascertained on diligent inquiry, may be made parties by being described as:

"(a) unknown claimants;

"(b) unknown owners; or

"(c) unknown heirs, devisees, or assignees of a deceased person who may have been interested in the subject matter of the action." MCR 2.201(D)(1) [formerly GCR 1963, 201.4(1) ].

While the court rules authorize the filing of such a [154 MICHAPP 84] complaint, they are silent on the effect such a complaint has on the statute of limitations.

Plaintiffs argue that the filing of such a complaint satisfies the statute of limitations. Plaintiffs contend that MCR 2.101(B) (an action is commenced by the filing of a complaint) controls and, therefore, whenever a complaint is filed, the statute of limitations has been satisfied and is no longer an immediate issue.

Plaintiffs' position here is untenable. The logical result of plaintiffs' position is that the statute of limitations has little if any import, as it can easily be circumvented by the filing of any type of complaint. This would be a strange result indeed considering that statutes of limitation are seen as promoting justice by the prevention of stale claims being filed. Lothian v. Detroit, 414 Mich. 160, 166-167, 324 N.W.2d 9 (1982); Cronin v. Minster Press, 56 Mich.App. 471, 478-479, 224 N.W.2d 336 (1974), lv. den. 393 Mich. 811 (1975); Meda v. City of Howell, 110 Mich.App. 179, 184, 312 N.W.2d 202 (1981). More importantly, plaintiffs' position conflicts with the previous holdings of this Court that the filing of a "John Doe" complaint does not toll or satisfy the period of limitation; for all practical purposes all defendants specifically unnamed are not yet parties to a suit. Meda, supra, pp. 185-186, 312 N.W.2d 202; Fazzalare v. Desa Industries, Inc., 135 Mich.App. 1, 6, 351 N.W.2d 886 (1984).

Plaintiffs also argue that even if the "John Doe" complaint did not satisfy the statute of limitations, their amended complaint of April 30, 1985, named specific defendants, and because amendments relate back to the original complaint, MCR 2.118(D) [formerly GCR 1963, 118.4], and the original complaint was filed within the three-year limitation period, the action is not time-barred. However, this argument ignores the holding in Meda and Fazzalare[154 MICHAPP 85] that defendants not specifically named in "John Doe" complaints are not yet parties to the suit and, if added later, are considered new parties to the litigation. Therefore, amendments to a complaint that add new parties do not relate back. See also Browder v. International Fidelity & Ins. Co., 98 Mich.App. 358, 361, 296 N.W.2d 60 (1980), aff'd 413 Mich. 603, 321 N.W.2d 668 (1982). Since defendants in the instant case were considered new parties when added, and the period of limitation had expired before they were added as parties, they were entitled to summary disposition.

Plaintiffs' final argument on this issue is that because they were diligent in their attempts to determine the identity of the defendants, the period of limitation should have been tolled. However, the "diligent plaintiff" exception is not as broad as plaintiffs would have us believe. Plaintiffs rely on Charpentier v. Young, 83 Mich.App. 145, 268 N.W.2d 322 (1978), rev'd on other grounds 403 Mich. 851, 291 N.W.2d 926 (1978). By order, the Supreme Court held that the period of limitation was tolled during the time in which the motion to amend the complaint to add parties defendant was pending, plaintiffs having demonstrated due diligence by seeking a decision on their motion within three weeks. Thus, as stated in Moore v. Flower, 108 Mich.App. 214, 217, 310 N.W.2d 336 (1981), remanded 414 Mich. 897, 323 N.W.2d 6 (1982):

"Application of statutes of limitations is a counting procedure with a primary purpose being to give the parties and the courts a specific time at which the statutory bar goes into effect. We find that the Supreme Court order in Charpentier, supra, applies such a rule and hold that, when a plaintiff moves to add a party defendant or to amend a complaint to do so, the statute of limitations is tolled during the time in which the motion [154 MICHAPP 86] to add parties or amend the complaint is pending in the trial court."

In this case, plaintiffs did not move to amend their complaint until the period of limitation had already run; tolling the period of limitation while the motion was pending would make no difference. Plaintiffs have provided this Court with no reason why their action is not time-barred. Thus, the trial court acted properly in granting defendants' motion for summary disposition.

Plaintiffs' second issue is that their cause of action did not accrue until the identity of all the defendants was discovered. In determining when a cause of action accrues for purposes of a statute of limitations, the general rule is that a cause accrues only when all the...