Waltz v. Wyse

• Decision Date: 14 April 2004
• Docket Number: Docket No. 122580, Calendar No. 12.
• Citation: 677 N.W.2d 813,469 Mich. 642
• Parties: Collene E. WALTZ, Personal Representative of the Estate of Jerrith Waltz, Deceased, Plaintiff-Appellant, v. Carol WYSE, D.O., and Hills & Dales Community General Hospital, Defendants-Appellees.
• Court: Michigan Supreme Court

677 N.W.2d 813

469 Mich. 642

Collene E. WALTZ, Personal Representative of the Estate of Jerrith Waltz, Deceased, Plaintiff-Appellant, v. Carol WYSE, D.O., and Hills & Dales Community General Hospital, Defendants-Appellees.

Docket No. 122580, (Calendar No. 12).

Supreme Court of Michigan.

Argued December 10, 2003.

Decided April 14, 2004.

Ferris & Salter, P.C. (by Don Ferris), Ann Arbor, MI, for the plaintiff.

Hackney Grover Hoover & Bean, PLC (by Brett J. Bean, Lyn N. Handel, and Marcia R. Matson), East Lansing, MI, for the defendants.

OPINION

YOUNG, J.

We granted leave in this wrongful death medical malpractice case to consider the interplay between M.C.L. § 600.5856(d)¹ and M.C.L. § 600.5852.² Specifically, we must determine whether § 5856(d), the medical malpractice notice tolling provision, tolls the additional period permitted for filing wrongful death actions under the wrongful death saving provision, § 5852. We conclude that § 5856(d) does not apply to the wrongful death saving provision and that, therefore, plaintiff's action was not timely filed. Accordingly, we affirm the judgment of the Court of Appeals.

I. FACTS³ AND PROCEDURAL HISTORY

Plaintiff's son, four-month-old Jerrith Waltz, died in the emergency room of defendant Hills & Dales Community General Hospital on April 18, 1994. In the months prior to his death, Jerrith was treated by defendant Dr. Carol Wyse for vomiting, diarrhea, pneumonia, and problems leading to dehydration and an inability to eat.

Bearing in mind that plaintiff's son died on April 18, 1994, particularly relevant to this appeal are the dates on which plaintiff took steps to file a medical malpractice action against the hospital and Dr. Wyse:

1. In January 1999, plaintiff, who had not yet been appointed personal representative of Jerrith's estate, notified the hospital and Dr. Wyse of her intent to file suit as required by M.C.L. § 600.2912b.

2. On May 27, 1999, plaintiff was appointed personal representative of Jerrith's estate.

3. On June 23, 1999, plaintiff, in her capacity as personal representative, filed a wrongful death medical malpractice complaint against the hospital and Dr. Wyse.

Defendants sought summary disposition, arguing that plaintiff had failed to file her complaint within either the applicable two-year limitation period for malpractice actions, M.C.L. § 600.5805(5),⁴ or the additional period allowed for wrongful death actions under § 5852.⁵ Defendants contended that the notice tolling provision, § 5856(d),⁶ did not toll the additional period provided for wrongful death actions under § 5852. Defendants argued that § 5852 was not itself a "statute of limitations or repose," but was instead a saving provision that merely provided a "grace period" that extended the otherwise-applicable limitation period. Moreover, defendants contended that plaintiff had no authority to file her notices of intent in January 1999, before she was appointed personal representative; thus, the notices did not serve to toll the time limit for filing suit in any event.⁷ The trial court granted defendants' motion, holding that (1) because the notice tolling provision, § 5856(d), did not toll the wrongful death "extension period," § 5852, and (2) because plaintiff was not appointed personal representative until after both the statute of limitations, § 5805(5),and the wrongful death "extension period" had expired, the action was time-barred.⁸

The Court of Appeals affirmed, holding that the trial court correctly concluded that the statute of limitations barred plaintiff's claim. Unpublished opinion per curiam, issued October 1, 2002 (Docket No. 231324). We granted plaintiff's application for leave to appeal.

II. STANDARD OF REVIEW

We review de novo decisions regarding summary disposition motions.⁹ Under MCR 2.116(C)(7), summary disposition is proper when a claim is barred by the statute of limitations. In determining whether summary disposition was properly granted under MCR 2.116(C)(7), this Court "consider[s] all documentary evidence submitted by the parties, accepting as true the contents of the complaint unless affidavits or other appropriate documents specifically contradict them."¹⁰

III. ANALYSIS

A. SECTION 5856(D) DOES NOT OPERATE TO TOLL § 5852

Plaintiff argues that her complaint was timely filed under the wrongful death provision, § 5852, as extended by the notice tolling provision, § 5856(d). Plaintiff contends that in Omelenchuk v. Warren, this Court applied the notice tolling provision to § 5852 and referred to § 5852 as setting forth a "limitation period." Thus, despite the fact that she did not file her notices of intent until well after the expiration of the two-year malpractice limitation period, plaintiff claims that she had until October 17, 1999 (182 days after the notices of intent were served) to file suit.

The Court of Appeals rejected plaintiff's argument, holding that the notice tolling provision did not toll the extended filing period for wrongful death actions:

In general, the statute of limitations for a wrongful death action is the statute of limitations for the underlying theory of liability, Eggleston v. Bio-Medical Applications of Detroit, Inc., 248 Mich.App. 640, 646, 645 N.W.2d 279 (2001), which is two years for medical malpractice, id., M.C.L. § 600.5805(5); Solowy v. Oakwood Hosp. Corp., 454 Mich. 214, 219, 561 N.W.2d 843 (1997).... However, a wrongful death savings provision applies if the deceased died either before or within thirty days after the period of limitations ended. M.C.L. § 600.5852; McNeil v. Quines, 195 Mich.App. 199, 202, 489 N.W.2d 180 (1992). Under the savings provision, the personal representative of an estate may begin a lawsuit within two years after letters of authority are issued, as long as the lawsuit is brought within three years after the two-year general period of limitations ended. M.C.L. § 600.5852; McNeil, supra at 202, 489 N.W.2d 180. This creates a maximum time of five years for filing suit, unless the six-month discovery rule in M.C.L. § 600.5838(2) applies.

Here, plaintiff failed to file her complaint within five years after her son's death. However, she argues that the five-year period was tolled for 182 days when her attorney sent both defendants notices of intent before filing suit, as required when a person alleges medical malpractice, M.C.L. § 600.2912b(1). See also Rheaume v. Vandenberg, 232 Mich.App. 417, 421, 591 N.W.2d 331 (1998). Generally, the potential plaintiff must wait at least 182 days after giving notice before filing a complaint, M.C.L. § 600.2912b(1); however, this period is reduced to 154 days if, as in this case, there was no written response to the notice, M.C.L. § 600.2912b(8). See also Omelenchuk, supra at 572-573, 609 N.W.2d 177. When the interval when a potential plaintiff is not allowed to commence an action would end after the expiration of the limitations period, then M.C.L. § 600.5856(d) applies and the period of limitations is tolled for 182 days, Omelenchuk, supra, at 574-575, 609 N.W.2d 177, if the notice meets the substantive requirements set forth in M.C.L. § 600.2912b, Roberts v. Mecosta Co. General Hosp., 466 Mich. 57, 59, 67, 70-71, 642 N.W.2d 663 (2002).

Here, the parties do not dispute that the wrongful death savings statute applied, and thus plaintiff could file suit within five years of the infant's death, which plaintiff did not do. However, plaintiff claims that the notices of intent given to defendants tolled the extended five-year limit set forth in the savings statute, M.C.L. § 600.5852. We disagree. We need look no further than the language of the tolling statute to resolve this issue. M.C.L. § 600.5856(d) expressly tolls the "statute of limitations." The Supreme Court has said recently that M.C.L. § 600.5852 is not a statute of limitations, but rather a savings statute. Miller [v. Mercy Mem. Hosp., 466 Mich. 196, 199; 644 N.W.2d 730 (2002).] Therefore, by its express language, M.C.L. § 600.5856(d) tolls the statute of limitations, not the extended limit in M.C.L. § 600.5852. Consequently, the trial court did not err because the statute of limitations barred plaintiff's claim. [Op., pp. 814-15.] [¹¹]

We agree with and adopt the reasoning of the Court of Appeals in affirming the grant of summary disposition for defendants. Section 5856(d), by its express terms, tolls only the applicable "statute of limitations or repose." As we recently stated in Miller, supra at 202, 644 N.W.2d 730, the wrongful death provision, § 5852, "is a saving statute, not a statute of limitations." (Emphasis supplied.)¹² See also Lindsey v. Harper Hosp, in which we explained that § 5852, as "the statute of limitations saving provision" and an "exception to the statute of limitations," operated "to suspend the running of the statute until a personal representative is appointed to represent the interests of the estate."¹³

The plain language of § 5852 wholly supports our conclusion that it is not itself a "statute of limitations." Again, § 5852 provides:

If a person dies before the period of limitations has run or within 30 days after the period of limitations has run, an action which survives by law may be commenced by the personal representative of the deceased person at any time within 2 years after letters of authority are issued although the period of limitations has run. But an action shall not be brought under this provision unless the personal representative commences it within 3 years after the period of limitations has run. [Emphasis supplied.]

By its own terms, § 5852 is operational only within the context of the separate "period of limitations" that would otherwise bar an action. Section 5852 clearly provides that it is an exception to the limitation period, allowing the commencement of a wrongful death action as many as three years after the applicable statute of limitations has expired.

In this case, the two-year limitation period provided in § 5805(5) expired...