Ward v. Siano

• Citation: 272 Mich. App. 715,730 N.W.2d 1
• Decision Date: 24 November 2006
• Docket Number: Docket No. 265599.
• Parties: Matt WARD, Personal Representative of The Estate of Howard Ward, Plaintiff-Appellant, v. John C. SIANO, Jr., M.D., Lansing Internal Medicine Associates, P.C., and Edward W. Sparrow Hospital Association, Defendants-Appellees.
• Court: Court of Appeal of Michigan (US)

730 N.W.2d 1

272 Mich. App. 715

Matt WARD, Personal Representative of The Estate of Howard Ward, Plaintiff-Appellant, v. John C. SIANO, Jr., M.D., Lansing Internal Medicine Associates, P.C., and Edward W. Sparrow Hospital Association, Defendants-Appellees.

Docket No. 265599.

Court of Appeals of Michigan.

Submitted July 31, 2006, at Lansing.

Decided November 24, 2006, at 9:10 a.m.

Released for Publication February 28, 2007.

Mark Granzotto, P.C. (by Mark Granzotto and Elizabeth Gleicher), Royal Oak, for Matt Ward.

Johnson & Wyngaarden, P.C.(by Michael L. Van Erp), Okemos, for Dr. John Siano, Jr., M.D. and Lansing Internal Medicine Associates, P.C.

Plunkett & Cooney, P.C. (by Robert G. Kamenec), Bloomfield Hills, for Edward W. Sparrow Hospital Association.

Smith Haughey Rice & Roegge (by Richard C. Kraus), for Amici Curiae University of Michigan Board of Regents, Mohamed Aziz, M.D. and Stephan F. Taylor, M.D.

Before: SAWYER, P.J., and O'CONNELL, SAAD, WILDER, ZAHRA, OWENS, and FORT HOOD, JJ.

PER CURIAM.

This Court convened this special panel pursuant to MCR 7.215(J)(3) to resolve a conflict that arose between our decision in Mazumder v. Univ. of Michigan Regents, 270 Mich.App. 42, 715 N.W.2d 96 (2006), and our later decision in this case, Ward v. Siano, 270 Mich.App. 584, 718 N.W.2d 371 (2006), vacated in part 270 Mich.App. 801, 718 N.W.2d 371 (2006). Pursuant to our conflict resolution rules, this Court vacated those portions of Ward that conflicted with Mazumder. MCR 7.215(J)(5). We now address the issue that the original panel in Ward would have decided differently if it were not bound to follow Mazumder. MCR 7.215(J)(1), (2).

The issue is whether a wrongful death plaintiff may rely on equitable tolling to escape the retroactive effect of our Supreme Court's decision in Waltz v. Wyse, 469 Mich. 642, 677 N.W.2d 813 (2004). In Waltz, our Supreme Court stated that the two-year period contained in the wrongful death saving statute, MCL 600.5852, was not tolled by serving a medical malpractice defendant with a notice of intent to sue. Waltz, supra at 655, 677 N.W.2d 813. Our Court recently reaffirmed that Waltz applies retroactively, Mullins v. St. Joseph Mercy Hosp., 271 Mich.App. 503, 507-510, 722 N.W.2d 666 (2006), so plaintiffs who filed before Waltz, but incorrectly and detrimentally relied on their notice of intent to sue to toll the running of the saving statute, are barred from pursuing their claims. In Mazumder, supra at 62, 715 N.W.2d 96, however, this Court applied the doctrine of equitable tolling to a plaintiff who had relied on her understanding of the law as it existed before Waltz was issued. The dissent in Mazumder pointed out that uniform application of equitable tolling to similar plaintiffs would effectively circumvent those decisions that applied Waltz retroactively. Mazumder, supra at 71-72, 715 N.W.2d 96 (Hoekstra, P.J., concurring in part, dissenting in part). In our previous opinion in this case, this Court agreed that the retroactive application of Waltz could not coexist with a blanket exception of equitable tolling woven solely from the general unfairness of retroactively applying Waltz. We concur with that reasoning. Because our Court has held that Waltz applies retroactively, we resolve the conflict in favor of our initial opinion in this case. We reinstate its reasoning and adopt it as the rule of law.

Equitable or judicial tolling ordinarily applies to a specific extraordinary situation in which it would be unfair to allow a statute of limitations defense to prevail because of the defendant's bad faith or other particular and unusual inequities. See 51 Am. Jur. 2d, Limitation of Actions, § 174, pp. 563-564. Absent statutory language allowing it, judicial tolling is generally unavailable to remedy a plaintiff's failure to comply with express statutory time requirements. See 51 Am. Jur. 2d, Limitation of Actions, § 177, p. 565 ("Equitable tolling is not permissible if it is inconsistent with the text of the relevant statute."); see also Secura Ins. Co. v. Auto-Owners Ins. Co., 461 Mich. 382, 387-388, 605 N.W.2d 308 (2000); Garg v. Macomb Co. Community Mental Health Services, 472 Mich. 263, 285 n. 12, 696 N.W.2d 646 (2005). Inequities that justify judicial tolling must arise independently of the plaintiff's failure to diligently pursue the claim in accordance with the statute. See 51 Am. Jur. 2d, Limitation of Actions, § 174, pp. 563-564, and § 177, p. 565; see also Devillers v. Auto Club Ins. Ass'n, 473 Mich. 562, 586, 590-592, 702 N.W.2d 539 (2005).

In Waltz, supra, our Supreme Court held that the plain language of MCL 600.5856 prevented it from tolling the saving statute, MCL 600.5852. The Court resolved the dispute over the relevant time frames specifically on the basis of statutory interpretation. Waltz, supra at 651-652, 677 N.W.2d 813. Therefore, it essentially concluded that the Legislature never intended to allow a personal representative to bring a wrongful death claim outside the two-year period in MCL 600.5852, despite the filing of a notice of intent to sue. See id. at 651, 677 N.W.2d 813. In light of Waltz, any attempt on our part to excuse nonconformity with the statute would amount to amending the statute—in effect, legislating from the bench. See Devillers, supra at 590 n. 65, 702 N.W.2d 539. This is not the function of the judiciary. Id.

Although a court may limit its novel interpretation of a statute to prospective application, Pohutski v. City of Allen Park, 465 Mich. 675, 696-697, 641 N.W.2d 219 (2002); see also Bryant v. Oakpointe Villa Nursing Ctr. Inc., 471 Mich. 411, 432, 684 N.W.2d 864 (2004), this Court has held that Waltz has full retroactive effect. Mullins, supra at 507-510, 722 N.W.2d 666. To allow a wholesale disregard of Waltz's retroactive application on the basis of individual "unfairness" to each plaintiff would allow the constant exceptions collectively to swallow the rule. See Devillers, supra at 586-587, 590 n. 65, 702 N.W.2d 539. The delicate and specialized tool of judicial tolling is ill-suited to supplant the expansive, all-encompassing remedy of limiting a rule to prospective application. By proposing to apply judicial tolling to every medical malpractice wrongful death plaintiff who is "unfairly" subjected to the time limits clarified in Waltz, the rationale of Mazumder subverts, piecemeal, our decision that Waltz applies retroactively. Stated differently, if reliance on the pre-Waltz understanding of the law were alone sufficient to justify a litigant's failure to comply with Waltz's standards, our appellate courts would have limited the decision to prospective application. They did not. In our original decision in this case, as in Mazumder, plaintiff failed to demonstrate any inequity independent of his unknowing failure to comply with the retroactive time limits delineated in Waltz. This "inequity" is inadequate to sustain a claim for judicial tolling, because it is directly related to plaintiff's unassisted failure to comply with the retroactively applicable time restraints, not on intervening, external circumstances. See 51 Am. Jur. 2d, Limitation of Actions, § 174, pp. 563-564, and § 177, p. 565. Therefore, we adopt the reasoning contained in Ward, conclude that judicial tolling should not operate to relieve wrongful death plaintiffs from complying with Waltz's time restraints, and overrule those portions of Mazumder that conflict with this opinion.

The circuit court's order granting summary disposition to defendants is affirmed.

SAWYER, P.J., and SAAD, ZAHRA, and OWENS, JJ., concurred.

DAVID H. SAWYER, HENRY WILLIAM SAAD, BRIAN K. ZAHRA and DONALD S. OWENS, JJ., concur.

FORT HOOD, J., concurred in the result only.

O'CONNELL, J., (concurring).

I concur with the majority's conclusion that Mazumder v. Univ. of Michigan Regents, 270 Mich.App. 42, 715 N.W.2d 96 (2006), inaptly applied judicial estoppel to alleviate the undesirable retroactive effects¹ of Waltz v. Wyse, 469 Mich. 642, 677 N.W.2d 813 (2004). I write separately to ask the Supreme Court to grant leave and issue a full and final opinion (rather than a remand order) regarding the propriety of prospective or retroactive application of Waltz.

I. The Issue

Unfortunately, much of the commotion created by Waltz has focused on one of two questions: whether MCL 600.5852 is a statute of limitations or a saving provision, and whether Waltz's classification of § 5852 as a saving provision was an issue of first impression. The problem with these issues is that § 5852 indisputably qualifies as a saving provision, and its designation as such was not a new pronouncement. These issues were both resolved by the Supreme Court's holding in Miller v. Mercy Mem. Hosp., 466 Mich. 196, 202, 644 N.W.2d 730 (2002), which succinctly stated, "Section 5852 is a saving provision, not a statute of limitations." However, this ruling made little difference to the bench and bar and essentially went unnoticed, as did Waltz's unpublished opinion in the Court of Appeals.

The issue that truly ignited the fire-storm was the related holding that because MCL 600.5852 was a "saving provision," the medical malpractice tolling provision, MCL 600.5856, did not toll it. Waltz, supra at 655, 677 N.W.2d 813. This was an issue of first impression on a settled area of law whose resolution would ordinarily be limited to prospective application.² See Pohutski v. City of Allen Park, 465 Mich. 675, 696-697, 641 N.W.2d 219 (2002); Bryant v. Oakpointe Villa Nursing Ctr. Inc., 471 Mich. 411, 432, 684 N.W.2d 864 (2004). It was not a nominal extension of understood principles, but the plowing under of familiar and common legal concepts and the reversal of years of standard practice. The ingrained nature of the pre-Waltz approach to tolling statutes, saving statutes, and other extensions of limitations periods, can best be seen by considering the legal concepts that developed along the way.

II. The Road to Wal...