Kull v. Watzke , 119 Mich. App. 451 ( 1982 )

119 Mich. App. 451 (1982) 326 N.W.2d 540

KULL
v.
WATZKE

Docket No. 60319.

Michigan Court of Appeals.

Decided September 9, 1982.

Alan G. Greenberg, for plaintiff.

Thomas J. Trenta, for defendant.

Before: M.J. KELLY, P.J., and M.F. CAVANAGH and P.R. JOSLYN,^[*] JJ.

PER CURIAM.

Edmund Kull was married to plaintiff and had two minor children, born in 1968 and 1971. On January 28, 1973, Kull died due to injuries sustained in an automobile accident. Eight years later, plaintiff petitioned to be appointed personal representative of her husband's estate. She was appointed on May 27, 1981. On July 6, 1981, plaintiff commenced an action for wrongful death, pursuant to MCL 600.2922; MSA 27A.2922, alleging that her husband's death occurred as a result of defendant's negligence. Defendant moved for accelerated judgment under GCR 1963, 116.1(5), arguing that the applicable three-year statute of limitations, MCL 600.5805(8); MSA 27A.5805(8), barred plaintiff's claim. Plaintiff responded that the period of limitation should be tolled in respect to claims that she is asserting on behalf of her minor children due to her children's infancy. The trial court granted defendant accelerated judgment and plaintiff appeals as of right.

MCL 600.5805(8); MSA 27A.5805(8) provides a three-year period of limitation for commencement of wrongful death actions. Reiterman v Westinghouse, 106 Mich. App. 698, 701-702; 308 NW2d 612 (1981). In addition, MCL 600.5851(1); MSA 27A.5851(1) provides:

"If the person first entitled to make an entry or bring an action is under 18 years of age, insane or imprisoned at the time his claim accrues, he or those claiming under him shall have 1 year after his disability is removed through death or otherwise, to make the entry or bring the action although the period of limitations has run."

Plaintiff's children, however, are not the persons first entitled to bring a wrongful death action. Rather, MCL 600.2922; MSA 27A.2922 mandates that only the personal representative of an estate may bring an action for wrongful death. Accord, Maiuri v Sinacola Construction Co, 382 Mich. 391, 393; 170 NW2d 27 (1969). Since minor children are not entitled to bring wrongful death actions, the period of limitation is not tolled by their infancy. This issue was treated at some length in Hebert v Cole, 115 Mich. App. 452; 321 NW2d 388 (1982), and we choose to follow Judge ALLEN's reasoning in that decision. The inequity caused by the Supreme Court's decision to create a child's cause of action in a wrongful death case, which is not coextensive with its cause of action in a personal injury case, we leave for correction by the Legislature.

The three-year period for bringing a wrongful death action expired before plaintiff filed her complaint. Accelerated judgment was, therefore, properly granted.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.