Trentadue v. Buckler Automatic Lawn Sprinkler Co.
| Citation | 701 N.W.2d 756,266 Mich. App. 297 |
| Decision Date | 24 March 2005 |
| Docket Number | Docket No. 252155,Docket No. 252209.,Docket No. 252207 |
| Parties | Dayle TRENTADUE, as Personal Representative of the Estate of Margarette F. Eby, Deceased, Plaintiff-Appellee, v. BUCKLER AUTOMATIC LAWN SPRINKLER COMPANY, Shirley Gorton, Laurence W. Gorton, Jeffrey Gorton, and Carl L. Bekofske, as Personal Representative of the Estate of Ruth R. Mott, Deceased, Defendants, and S. Victor Nyberg, Todd Michael Bakos and MFO Management Company, Defendants-Appellees. Dayle Trentadue, as Personal Representative of the Estate of Margarette F. Eby, Deceased, Plaintiff-Appellant, v. Buckler Automatic Lawn Sprinkler Company, Shirley Gorton, and Laurence W. Gorton, Defendants-Appellants, and Jeffrey Gorton, S. Victor Nyberg, Todd Michael Bakos, MFO Management Company, and Carl F. Bekofske, as Personal Representative of the Estate of Ruth R. Mott, Deceased, Defendants. Dayle Trentadue, as Personal Representative of the Estate of Margarette F. Eby, Deceased, Plaintiff-Appellee, v. Buckler Automatic Lawn Sprinkler Company, Shirley Gorton, Laurence W. Gorton, Jeffrey Gorton, S. Victor Nyberg, Todd Michael Bakos and Carl L. Bekofske, as Personal Representative of the Estate of Ruth R. Mott, Deceased, Defendants, and MFO Management Company, Defendant-Appellant. |
| Court | Court of Appeal of Michigan (US) |
Cox, Hodgman & Giarmarco, P.C. (by David A. Binkley, Elise V. Iafrate, and Tonie M. Franzese), Troy, for Dayle Trentadue.
Gault Davison, P.C. (by Edward B. Davison), Flint, for Shirley and Laurence Gorton.
Garan Lucow Miller, P.C. (by Joseph Kochis and Robert D. Goldstein), Grand Blanc, for Carl F. Bekofske.
Bodman, Longley & Dahling LLP (by Charles S. Hegarty and Christine E. Ficks), Detroit, for Todd M. Bakos and S. Victor Nyberg.
Law Offices of Catherine A. Gofrank (by Thomas M. Douglas), Southfield, for MFO Management.
Before: OWENS, P.J., and SAWYER and WHITE, JJ.
Plaintiff Dayle Trentadue, as personal representative of the estate of Margarette F. Eby, deceased, appeals by leave granted the order granting defendants Carl L. Bekofske, as personal representative of the estate of Ruth R. Mott, deceased (Mott),1 and MFO Management Company (MFO) summary disposition on plaintiff's claim pertaining to their breach of duty to provide adequate security to Margarette F. Eby (Eby), on the ground that it was barred by the applicable statute of limitations in this wrongful death action. Defendant Buckler Automatic Lawn Sprinkler Company (Buckler) and defendants Shirley Gorton and Laurence W. Gorton (the Gortons) appeal by leave granted the order denying their motion for summary disposition based on the applicable statutes of limitations on all plaintiff's claims. MFO appeals by leave granted the order denying its motion for summary disposition on plaintiff's breach of duty claim under a theory of respondeat superior. We affirm in part, reverse in part, and remand.
Defendants assert that plaintiff's claims are barred by MCL 600.5805(10). Buckler and the Gortons assert that all plaintiff's claims should be precluded because MCL 600.5827 states that a claim accrues "at the time the wrong upon which the claim is based was done regardless of the time when damage results." They contend that the time of the wrong that initiated the running of the limitations period was the date plaintiff's injury resulted from a breach of duty. Lemmerman v. Fealk, 449 Mich. 56, 64, 534 N.W.2d 695 (1995), citing Larson v. Johns-Manville Sales Corp., 427 Mich. 301, 309, 399 N.W.2d 1 (1986). Defendants contend the discovery rule is not available to plaintiff because the date of accrual is not delayed until discovery of the identity of the perpetrator or determination of all possible causes of action. Plaintiff argues that the discovery rule should apply because until Jeffrey Gorton's culpability for Eby's murder was discovered, there was no basis to assert breach of duty claims against Mott and MFO. Plaintiff asserts that, without the identity of Eby's murderer, there was no basis to assert any type of claim against the remaining defendants, Buckler, the Gortons, Nyberg, and Bakos, because their culpability was solely based on their specific job responsibilities or employment relationship to the murderer, Jeffrey Gorton.
A trial court's ruling on motions for summary disposition is reviewed de novo. Hazle v. Ford Motor Co., 464 Mich. 456, 461, 628 N.W.2d 515 (2001). When there is no disputed issue of fact, the question whether a statute of limitations bars a cause of action is also reviewed de novo. Van Reken v. Darden, Neef & Heitsch, 259 Mich.App. 454, 456, 674 N.W.2d 731 (2003).
Our Supreme Court has recognized the dichotomy that exists between the need to protect defendants from stale claims and the injustice that could result from precluding certain claims by requiring application of a discovery rule to toll limitations periods in certain situations. A discovery rule has been applied to avoid unjust results that could occur when a reasonable and diligent plaintiff would be denied the opportunity to bring a claim because of either the latent nature of the injury or the inability of the plaintiff to learn of or identify the causal connection between the injury and the breach of a duty owed by a defendant. Specifically:
When the discovery rule is applicable, a claim does not accrue until the plaintiff discovers, or with the exercise of reasonable diligence should have discovered, (1) an injury and (2) a causal connection between the plaintiff's injury and the defendant's breach of duty. Jackson Co. Hog Producers v. Consumers Power Co., 234 Mich.App. 72, 78, 592 N.W.2d 112 (1999), citing Lemmerman, supra, p. 66, 534 N.W.2d 695. "The test applied [to determine] when a cause of action accrued is an objective one, based on objective facts, and not on what a particular plaintiff subjectively believed." Jackson Co Hog Producers, supra.
Pursuant to the discovery rule, a limitations period begins to run if a plaintiff is aware that there is a "possible cause of action" i.e., when a plaintiff "is aware of an injury and its possible cause." Moll, supra, pp 23-24, 506 N.W.2d 816. It is not necessary that a plaintiff be capable of proving each element of a cause of action before the limitations period begins to run. Jackson Co Hog Producers, supra, p. 78, 592 N.W.2d 112.
The discovery rule applies when an element of a cause of action has occurred but is undiscoverable using reasonable diligence for a time. Doe v. Roman Catholic Archbishop of the Archdiocese of Detroit, 264 Mich.App. 632, 640, 692 N.W.2d 398 (2004), citing Travelers Ins. Co. v. Guardian Alarm Co. of Michigan, 231 Mich.App. 473, 479-480, 586 N.W.2d 760 (1998). With respect to plaintiff's claims against Buckler, the Gortons, Nyberg, and Bakos, the relationship of Buckler, the Gortons, Nyberg, and Bakos with Eby's killer could not be discovered by plaintiff, under the circumstances of this case, until Jeffrey Gorton was determined to be the killer or the means of access of Eby's killer into her residence was determined. Thus, plaintiff was not aware of a possible cause of action until that time. We reject defendants' argument that the discovery rule is inapplicable because this is simply a case of unknown identity, and the courts have consistently held that the rule is inapplicable in such cases. This is not a case where plaintiff knew of an injury and its cause, but did not know the identity of the actor. Plaintiff knew that Eby was murdered, but did not know that anyone had caused Eby harm other than the killer. Plaintiff could not have known of a cause of action against anyone in Buckler's, the Gortons', Nyberg's, or Bako's positions until the facts of the murder were uncovered.
As noted by our Supreme Court in addressing cases involving repressed memory of assault:
In those instances in which we have applied the common-law discovery rule to extend the statute of limitations, the dispute between parties has been based on evaluation of a factual, tangible consequence of action by the defendant, measured against an objective external standard. The presence of this external standard addresses the concern for reliable fact finding that is the underlying rationale for precluding untimely claims. [Lemmerman, supra, p. 68, 534 N.W.2d 695.]
Plaintiff's claims against Buckler, the Gortons, Nyberg, and Bakos are neither speculative nor...
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