Reiterman v. Westinghouse, Inc , 106 Mich. App. 698 ( 1981 )

106 Mich. App. 698 (1981) 308 N.W.2d 612

REITERMAN
v.
WESTINGHOUSE, INC.

Docket No. 45897.

Michigan Court of Appeals.

Decided June 3, 1981.

Bushnell, Gage, Doctoroff, Reizen & Byington (by David D. Kohl), for plaintiff.

Buchanan, Ogne & Jinks, P.C., for defendant Westinghouse, Inc.

Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen (by B.I. Stanczyk, John P. Jacobs, Christine D. Oldani, and Raymond W. Morganti), for defendant General Electric Company.

Before: BASHARA, P.J., and D.F. WALSH and T.M. BURNS, JJ.

BASHARA, P.J.

Defendant General Electric Company (G.E.) filed a hybrid motion for summary/accelerated judgment asserting that plaintiff had failed to commence an action against it within the three-year statutory limitation for wrongful death actions. The trial court denied the motion, and G.E. was granted leave to appeal. On June 20, 1980, this panel affirmed the trial court's ruling in an unpublished per curiam opinion, Docket No. 45897. The cause is again before us by way of our August 26, 1980, order granting G.E.'s petition for rehearing.

On June 22, 1975, plaintiff's decedent received an electrical shock when he attempted to plug a Westinghouse electric clothes dryer into an electrical outlet. On September 24, 1975, he died as a result of injuries sustained in the accident.

Plaintiff filed the instant wrongful death action on May 2, 1977, against Westinghouse. On January 25, 1978, plaintiff filed her first amended complaint against Westinghouse, alleging a breach of warranty in the manufacture of the electrical cord on the clothes dryer. Plaintiff filed a second amended complaint, again alleging a breach of warranty, against the J.L. Hudson Co., the seller of the clothes dryer, on August 27, 1978.

In October, 1978, plaintiff discovered that the electrical motor in the clothes dryer was also defective. This motor had been manufactured by the General Electric Company. On November 14, 1978, plaintiff filed her third amended complaint, adding General Electric as a defendant and alleging a breach of warranty with respect to the manufacturer of the motor.

It is well established that the statute of limitations in a wrongful death action is three years from the decedent's death. MCL 600.5805(7); MSA 27A.5805(7),^[1]Ruhle v Armstrong, 20 Mich. App. 573; 174 NW2d 292 (1969), aff'd 384 Mich. 709; 187 NW2d 223 (1971), Coury v General Motors Corp, 376 Mich. 248; 137 NW2d 134 (1965).

Plaintiff asserts, however, that since her claim alleges breach of warranty the accrual date established in MCL 600.5833; MSA 27A.5833 is controlling. It states:

"In actions for damages based on breach of a warranty of quality or fitness the claim accrues at the time the breach of the warranty is discovered or reasonably should be discovered."

Plaintiff therefore argues that the claim did not accrue until October, 1978, when she learned of the alleged breach of warranty by G.E. through the discovery process.

The case most germane to the issue at bar is Stoneman v Collier, 94 Mich. App. 187; 288 NW2d 405 (1979). Plaintiffs' decedent in Stoneman had died as the result of carbon monoxide asphyxia while operating a General Motors Corporation vehicle. A timely action was commenced against the manufacturer and installer of the exhaust system. Over three years after the death, plaintiffs attempted to add General Motors as a party defendant. Plaintiffs claimed that the statute of limitations did not begin to run until discovery of the existence of a possible cause of action. The trial court ruled that the discovery rule^[2] in products liability cases is not applicable in wrongful death cases.

In affirming the trial court's decision, the Court distinguished Dyke v Richard, 390 Mich. 739; 213 NW2d 185 (1973), where it was held that the statute of limitations for medical malpractice cases did not begin to run until the plaintiff discovered or should have discovered the existence of the claim.

The Court stated:

"[M]edical malpractice claims present special problems since it is sometimes difficult to distinguish the injury from symptoms of the condition for which treatment was sought.

"Here the factors which may obstruct a patient's awareness of a malpractice claim are not present. From the outset plaintiffs were aware that decedent Ollie died of carbon monoxide poisoning in a General Motors automobile, and could have proceeded against General Motors accordingly.

"As set forth in Sedlak v Ford Motor Co, 64 Mich. App. 61, 63; 235 NW2d 63 (1975):

"`It would be an extremely dangerous rule of law that the accrual date of a cause of action is held in abeyance indefinitely until a prospective plaintiff obtains professional assistance to determine the existence of a possible cause of action. Under such a theory, no limitations period would ever be binding.

"`The Supreme Court summed this all up as follows:

"`"It is not necessary that a party should know the details of the evidence by which to establish his cause of action. It is enough that he knows that a cause of action exists in his favor, and when he has this knowledge, it is his own fault if he does not avail himself of those means which the law provides for prosecuting or preserving his claim." Kroll v Vanden Berg, 336 Mich. 306, 311; 57 NW2d 897 (1953).'" Id., 192-193.

Also see, Szlinis v Moulded Fiber Glass Co, Inc, 80 Mich. App. 55; 263 NW2d 282 (1977), appeal dismissed 407 Mich. 893 (1979).

Stoneman can arguably be distinguished. This plaintiff did not know that G.E. was one of the manufacturers of the machine until two months before adding it as a party defendant. In Stoneman, plaintiffs immediately knew the decedent died in a General Motors car.

However, we find the distinction to be without significance. Plaintiff knew at the date of decedent's death that the faulty machine caused his injury. At that time, it was incumbent upon her to discover, within three years, the various manufacturers of the possible faulty mechanisms. There is a plethora of case law holding that the statute of limitations is not tolled pending discovery of the identity of the alleged tortfeasor where all the other elements of the cause of action exist. See Thomas v Ferndale Laboratories, Inc, 97 Mich. App. 718; 296 NW2d 160 (1980), and the cases cited therein.

Today's complex marketing and manufacturing systems commonly result in consumer products bearing one brand name although the components of the product have been manufactured by several enterprises. Our considered judgment is that the public is generally aware of this fact.

By holding that the statute of limitations begins to run on the date of death, it is not necessary to hold void the discovery rule established in the breach of warranty statute.^[3] Rather, we find as a matter of law that where a product is the instrumentality of death the fact that the product may have been defective has been manifested. It is then incumbent upon the survivors to investigate the product to determine liability.

The result reached today is in agreement with an analogous line of cases addressing the question of which of two possible statutes of limitation is applicable. In Rach v Wise, 46 Mich. App. 729, 731-732; 208 NW2d 570 (1973), the general rule in those cases was succinctly stated:

"[W]hen choosing which of several statutes of limitations is applicable to a particular case[,] * * * the nature of damages sought, rather than the form of the action plaintiff has proceeded under is determinative."

In accord, State Mutual Cyclone Ins Co v O & A Electric Cooperative, 381 Mich. 318; 161 NW2d 573 (1968).

The Court in Rach concluded that the three-year statute of limitations for personal injury cases controlled even though the action was premised on an express contract.

In the case at bar, the wrongful death of Mr. Reiterman establishes the nature of the damages sought. Hence, application of the wrongful death accrual results in consistency with the rule cited in Rach.

Our previous decision relied heavily upon two cases which hold that the two-year medical malpractice statute of limitations is applicable in wrongful death actions. Weiss v Bigman, 84 Mich. App. 487; 270 NW2d 5 (1978), and Olijnyk v Harrison Community Hospital, Inc, 80 Mich. App. 366; 263 NW2d 33 (1977). Upon further reflection, we find that line of cases not persuasive in this case. We agree with the Stoneman opinion where it distinguishes between medical malpractice and products liability cases due to the notice differences inherent in each type of action. Stoneman, supra, 192. Furthermore, accrual was not the issue in those cases, which turned upon conflict between two statutory periods.

Finally, we find that the cases holding that the more specific statute controls where there is a conflict between a general and a specific statute are also not germane to this controversy. Mayor of Port Huron v City Treasurer of Port Huron, 328 Mich. 99; 43 NW2d 77 (1950), People v Bernard Smith, 81 Mich. App. 561; 266 NW2d 40 (1978). The two statutes in this case concern different topics, one a statutory time limitation and the other a time of accrual. Neither is more specific than the other. By holding that the breach of warranty reasonably should have been discovered upon decedent's death, both statutes are given effect.

The Court of Appeals opinion dated June 20, 1980, is vacated. The matter is remanded for entry of accelerated judgment, GCR 1963, 116.1(5), in favor of defendant G.E. Costs to G.E.

D.F. WALSH, J., concurred.

T.M. BURNS, J. (dissenting).

I respectfully dissent and would follow our prior opinion in this matter.

Without question, the applicable period of limitations for wrongful death actions is the three-year time period formerly set forth in MCL 600.5805(7); MSA 27A.5805(7). Ruhle v Armstrong, 20 Mich. App. 573; 174 NW2d 292 (1969), aff'd 384 Mich. 709; 187 NW2d 223 (1971). The general rule regarding wrongful death actions is that this three-year period begins to run on the date of the decedent's death. Coury v General Motors Corp, 376 Mich 248; 137 NW2d 134 (1965). This general rule, however, has no application in this case.

Under the provisions of MCL 600.5833; MSA 27A.5833:

"In actions for damages based on breach of a warranty of quality or fitness the claim accrues at the time the breach of the warranty is discovered or reasonably should be discovered."

Plaintiff's suit against defendant General Electric Company is premised upon a breach of warranty of fitness. Therefore, it falls squarely within the statutory language that neither admits of ambiguity nor exception on account of the wrongful death statute.

Statutes that relate to particular matters or questions control over contrary general law. Mayor of Port Huron v City Treasurer of Port Huron, 328 Mich. 99; 43 NW2d 77 (1950). Thus, for instance, in Weiss v Bigman, 84 Mich. App. 487; 270 NW2d 5 (1978), this Court held that a complaint brought under the wrongful death act, but which was based upon an allegation of medical malpractice, was required to be filed within the period of limitations pertaining to medical malpractice actions. See MCL 600.5805(4); MSA 27A.5805(4). See also Olijnyk v Harrison Community Hospital, Inc, 80 Mich. App. 366; 263 NW2d 33 (1977).

Plaintiff has properly pleaded a cause of action for breach of warranty. The fact that her decedent had the misfortune of dying rather than suffering severe physical injury in no way affects the validity of her claim for breach of warranty. Nor is this fact of any import under MCL 600.5833; MSA 27A.5833. I dissented in this Court's opinion in Rach v Wise, 46 Mich. App. 729, 733; 208 NW2d 570 (1973) (T.M. BURNS, J., dissenting), and I do so here. This Court is not in the business of redrafting a litigant's pleadings to fit our artificial rules of procedure.

I dissent and would affirm the circuit court's denial of defendant General Electric Company's motion for accelerated judgment.

NOTES

[1] Section 5805(7) was the residual statute of limitations statute for tort actions for which no specific statute is established at the time this action was brought. By judicial construction, it had been held applicable to wrongful death actions. Ruhle, supra. Effective December 13, 1978, § 5805(8) was added to specifically establish a three-year limitation for commencement of wrongful death actions. 1978 PA 495. Application of either the current or the former subsection leads to the same result.

[2] The term "discovery rule" is a commonly used phrase for accruals which commence when the plaintiff discovers or reasonably should have discovered the breach.

[3] This decision must not be construed as negating the effect of the breach of warranty accrual provision where wrongful death has not been claimed.