Trentadue v. Buckler Automatic Lawn Sprinkler Company , 479 Mich. 378 ( 2007 )

4/December 2006—MDC Court
Michigan Supreme
Lansing, Michigan
Chief Justice: Justices:
Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED JULY 25, 2007
DAYLE TRENTADUE, as Personal
Representative of the Estate of
MARGARETTE F. EBY, Deceased,
Plaintiff-Appellee,
v No. 128579
JEFFREY GORTON, VICTOR NYBERG,
TODD MICHAEL BAKOS, MFO
MANAGEMENT COMPANY, and CARL
F. BEKOFSKE, as Personal Representative
of the Estate of RUTH R. MOTT, Deceased,
Defendants,
and
BUCKLER AUTOMATIC LAWN
SPRINKLER COMPANY, SHIRLEY
GORTON and LAURENCE W. GORTON,
Defendants-Appellants.
DAYLE TRENTADUE, as Personal
Representative of the Estate of
MARGARETTE F. EBY, Deceased,
Plaintiff-Appellee,
v Nos. 128623, 128624, and
128625
BUCKLER AUTOMATIC LAWN
SPRINKLER COMPANY, SHIRLEY
GORTON, LAURENCE W. GORTON,
JEFFREY GORTON, 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.
BEFORE THE ENTIRE BENCH
CORRIGAN, J.
This wrongful death case requires us to consider whether the common-law
“discovery rule,” which allows tolling of the statutory period of limitations when a
plaintiff could not have reasonably discovered the elements of a cause of action
within the limitations period, can operate to toll the period of limitations, or
whether MCL 600.5827, which has no such provision, alone governs the time of
accrual of the plaintiff’s claims. We conclude that MCL 600.5827 alone controls.
Because the Court of Appeals held to the contrary, we reverse its judgment and
remand the case to the Genesee Circuit Court for further proceedings consistent
with this opinion.
2
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
This case arises from the tragic rape and murder of Margarette F. Eby in
November 1986 at her home in Flint. According to plaintiff’s complaint, in 1981
Eby leased a residence in the gatehouse on the grounds of the Mott family estate
from Ruth R. Mott (Mott) where Eby began to live. Eby was found raped and
murdered on November 9, 1986, after last being seen alive on November 7, 1986.
The rape and murder remained unsolved until 2002, when deoxyribonucleic acid
(DNA) evidence established that Jeffrey Gorton, an employee of his parents’
corporation, the Buckler Automatic Lawn Sprinkler Company (Buckler), which
serviced the sprinkler system on the grounds, had committed the crime. Gorton
pleaded no contest when charged with the murder and was sentenced to life
imprisonment for Eby’s rape-murder.
On August 2, 2002, plaintiff Dayle Trentadue, Eby’s daughter and the
personal representative of her estate, filed a complaint against Jeffrey Gorton; his
parents Shirley and Lawrence Gorton who, as noted, operated Buckler; Buckler;
Carl F. Bekofske, personal representative of the estate of Ruth R. Mott, deceased,
who died in 1999; MFO Management Company (MFO), the management
company that provided administrative services to the Mott family; and two of
Mott’s employees, Victor Nyberg and Todd Bakos, asserting several theories of
negligence. Regarding the Gortons, the contentions were essentially negligent
hiring and monitoring of Jeffrey Gorton. The other defendants were allegedly
3
negligent in allowing access to the area that led to Eby’s residence and not
providing adequate security or alarms.
Each defendant, except Jeffrey Gorton, moved for summary disposition
under MCR 2.116(C)(7), arguing, among other things, that plaintiff’s action was
barred by the three-year statute of limitations for wrongful death actions.1 In
particular, they argued that under MCL 600.58272 a claim accrues when the
plaintiff is harmed,3 and the action for wrongful death must be commenced within
three years after the claim first accrued to the plaintiff or to someone through
whom the plaintiff claims. MCL 600.5805(1); MCL 600.5805(10). Further, while
MCL 600.5852 permits an extension of up to three years based on when a personal
representative is appointed, that statute was inapplicable here because almost 16
years had passed. Thus, defendants asserted that the suit should have been
dismissed as untimely and barred under the statute of limitations. Plaintiff in
response asserted that the common-law discovery rule applied to toll the period of
limitations. That is, even though the provisions of the period of limitations were
1
MCL 600.5805(10).
2
MCL 600.5827:
Except as otherwise expressly provided, the period of limitations
runs from the time the claim accrues. The claim accrues at the time
provided in sections 5829 to 5838, and in cases not covered by these
sections the claim accrues at the time the wrong upon which the claim is
based was done regardless of the time when damage results.
3
Boyle v Gen Motors Corp, 468 Mich 226, 231 n 5; 661 NW2d 557 (2003).
4
silent on tolling based on discovery, until she knew the identity of the killer, the
period of limitations was tolled.4
The Genesee Circuit Court ruled for plaintiff, adopting her theory that the
common-law discovery rule remains viable in Michigan and thus applicable here.
The court concluded regarding defendants Buckler and Shirley and Lawrence
Gorton that “[a] claim for personal injury accrues when all of the elements are
present and can be properly pleaded in a complaint,” citing, e.g., Connelly v Paul
Ruddy’s Equip Repair & Service Co, 388 Mich 146; 200 NW2d 70 (1972).
Trentadue v Buckler Automatic Lawn Sprinkler Co, opinion of the Genesee Circuit
Court, issued October 28, 2003 (Docket No. 02.74145-NZ), p 4. The court also
“recognize[d], in some instances, [that the] identity of the killer may be necessary
to plead a cause of action.” Id. Accordingly, it decided that most of plaintiff’s
claims were not time-barred because plaintiff could not determine that the duties
were breached, or that the breaches caused the injuries, until she became aware of
the killer’s identity in 2002. Regarding Bekofske and MFO, the court granted
4
Regarding plaintiff’s inability to discover the identity of the killer, she
characterized the facts largely as do Justice Kelly and Justice Weaver in dissent.
Most significantly, plaintiff claimed that she could not have discovered her
premises liability and security claims against Mott and MFO because the police
were convinced that Eby had been murdered by an acquaintance whom she
allowed into the apartment. This claim distorts the affidavit of David King, the
homicide investigator. King described the method of entry as “undetermined” and
attested that the police investigated Eby’s acquaintances and other persons “who
appeared to be suspicious because of their lifestyle.” It appears unknown why
police did not interview Jeffrey Gorton.
5
their summary disposition motions on the basis that if Mott and MFO had failed to
provide adequate security, this claim was known to plaintiff at the time of the
killing, and the cause of action could have been brought at that time.5
On appeal, the Court of Appeals affirmed in part, reversed in part, and
remanded, concluding that the common-law discovery rule tolled the limitations
period for all plaintiff’s claims, including the improper security claims against
Bekofske and MFO. 266 Mich App 297; 701 NW2d 756 (2005). The Court of
Appeals concluded that the common-law discovery rule tolled the period of
limitations because plaintiff was unaware of a cause of action against Buckler, the
Gortons, Nyberg, or Bakos until their relationship with the killer became known.
Regarding Bekofske and MFO, the Court of Appeals reversed the part of the trial
court’s judgment that granted summary disposition in their favor. It concluded
that the discovery rule applied because until the identity of the killer became
known, no causal connection could be discovered between a breach of duty and
Eby’s death. The Court of Appeals failed to address the absence of the common-
law discovery provision in MCL 600.5827. It evidently presumed that the
discovery provision could co-exist with the statute and was not abrogated by the
statute’s enactment.
Buckler, the Gortons, and MFO sought leave to appeal in this Court. We
granted leave to appeal to consider whether a common-law discovery rule
5
The claim against Jeffrey Gorton is not in dispute.
6
continues to exist in Michigan or whether MCL 600.5827, which has no common-
law discovery provision, is the exclusive means of establishing tolling.6
II. STANDARD OF REVIEW
This Court reviews motions for summary disposition under MCR
2.116(C)(7) de novo. Grimes v Dep’t of Transportation, 475 Mich 72, 76; 715
NW2d 275 (2006). In the absence of disputed facts, we also review de novo
whether a cause of action is barred by the applicable statute of limitations. Joliet v
Pitoniak, 475 Mich 30, 35; 715 NW2d 60 (2006). Finally, we address questions of
statutory interpretation de novo. Grimes, supra at 76.
III. ANALYSIS
A. THE STATUTE OF LIMITATIONS AND ITS EFFECT ON THE
COMMON-LAW DISCOVERY RULE
The applicable statute of limitations in a wrongful death case is MCL
600.5805(10),7 which states: “The period of limitations is 3 years after the time of
the death or injury for all other actions to recover damages for the death of a
person, or for injury to a person or property.” Thus, the period of limitations runs
three years from “the death or injury.”
6
475 Mich 906 (2006).
7
MCL 600.5805(10) has been renumbered several times since it was
enacted as part of the Revised Judicature Act of 1961. 1961 PA 236. The
subsection was also amended to explicitly apply to cases alleging wrongful death
in 1978. 1978 PA 495. We will refer to the subsection as subsection 10
throughout this opinion for ease of reference.
7
Moreover, MCL 600.5827 defines the time of accrual for actions subject to
the limitations period in MCL 600.5805(10).8 It provides:
Except as otherwise expressly provided, the period of
limitations runs from the time the claim accrues. The claim accrues
at the time provided in sections 5829 to 5838, and in cases not
covered by these sections the claim accrues at the time the wrong
upon which the claim is based was done regardless of the time when
damage results.
8
See, e.g., Joliet, supra at 40; Garg v Macomb Co Community Mental
Health Services, 472 Mich 263, 282; 696 NW2d 646 (2005), amended 473 Mich
1205 (2005); Moll v Abbott Laboratories, 444 Mich 1, 12; 506 NW2d 816 (1993).
Although this Court has consistently applied the statutes together, Justice
Kelly now questions whether MCL 600.5827 applies in cases governed by MCL
600.5805(10). By its terms, § 5827 applies to “cases not covered by” MCL
600.5829 to 600.5838, which are not relevant to this case. Accordingly, this Court
has consistently applied § 5827 and § 5805(10) together. Joliet, supra at 40;
Garg, supra at 282; Moll, supra at 12. Moreover, the statutes are complementary
and easily read together. MCL 600.5827 establishes that periods of limitations run
“from the time the claim accrues,” which is “the time the wrong upon which the
claim was based is done.” MCL 600.5805(10) specifies that personal injury and
wrongful death actions accrue at the time of “death or injury.” Because “[t]he
wrong is done when the plaintiff is harmed rather than when the defendant acted”
under § 5827, the statutes are perfectly consistent. Boyle v Gen Motors Corp, 486
Mich 266, 231 n 5; 661 NW2d 577 (2003).
Significantly, Justice Kelly’s preferred application of MCL 600.5805(10)
by itself would not yield a different result. First, the time of death under §
5805(10) would be marked from the same moment as the time the wrong was
done, under MCL 600.5827. Thus, not only are the statutes complementary, they
also have precisely the same effect when applied separately. Second, even
assuming that § 5805(10) should alone govern, we would be hard-pressed to inject
a common-law discovery rule into this statute’s plain language, which
unambiguously establishes that the “period of limitations is 3 years after the time
of the death or injury.” Finally, using a discovery rule to avoid the plain language
of § 5805(10) presents the same problem as does applying the rule under § 5827; it
ignores the remainder of the statutory scheme, which clearly provides for
discovery-based tolling when the Legislature deems it appropriate, as further
discussed infra.
8
This is consistent with MCL 600.5805(10) because it indicates that the
claim accrues “at the time the wrong upon which the claim is based was
done . . . .” We have, not surprisingly given its clarity, so held in Boyle v Gen
Motors Corp, 468 Mich 226, 231-232; 661 NW2d 557 (2003), and Garg v
Macomb Co Community Mental Health Services, 472 Mich 263, 282; 696 NW2d
646 (2005). We have also clearly established that “[t]he wrong is done when the
plaintiff is harmed rather than when the defendant acted.” Boyle, supra at 231 n 5.
The Revised Judicature Act, at MCL 600.5838(2), 600.5838a(2),
600.5839(1), and 600.5855, provides for tolling of the period of limitations in
certain specified situations. These are actions alleging professional malpractice,
MCL 600.5838(2); actions alleging medical malpractice, MCL 600.5838a(2);
actions brought against certain defendants alleging injuries from unsafe property,
MCL 600.5839(1); and actions alleging that a person who may be liable for the
claim fraudulently concealed the existence of the claim or the identity of any
person who is liable for the claim, MCL 600.5855. Significantly, none of these
tolling provisions covers this situation—tolling until the identity of the tortfeasor
is discovered.
Plaintiff contends, however, that, notwithstanding these statutes, when the
claimant was unaware of any basis for an action, the harsh result of barring any
lawsuit because the period of limitations has expired can be avoided by the
operation of a court-created discovery rule, sometimes described as a common-law
rule, articulated in Johnson v Caldwell, 371 Mich 368, 379; 123 NW2d 785
9
(1963), superseded by statute as stated in Hawkins v Regional Medical
Laboratories, PC, 415 Mich 420, 428 n 2; 329 NW2d 729 (1982). Under a
discovery-based analysis, a claim does not accrue until a plaintiff knows, or
objectively should know, that he has a cause of action and can allege it in a proper
complaint. Moll v Abbott Laboratories, 444 Mich 1, 16-17; 506 NW2d 816
(1993).9 Accordingly, here, plaintiff argues that her claims did not accrue until
she discovered that Gorton was the killer because, before that time, she could not
have known of and alleged each element of the claims.10 We reject this contention
because the statutory scheme is exclusive and thus precludes this common law
practice of tolling accrual based on discovery in cases where none of the statutory
tolling provisions apply.
It is axiomatic that the Legislature has the authority to abrogate the
common law. Hoerstman Gen Contracting, Inc v Hahn, 474 Mich 66, 74; 711
NW2d 340 (2006). Further, if a statutory provision and the common law conflict,
9
A personal injury claim must allege that (1) the defendant owed the
plaintiff a legal duty, (2) the defendant breached the duty, (3) the breach was the
proximate cause of the plaintiff's injuries, and (4) damage. Moll, supra at 16.
10
Justice Weaver makes the same argument but also goes one step further.
She acknowledges that, under MCL 600.5827, a claim accrues when “‘all of the
elements of the cause of action have occurred’” or when “‘all of the elements of an
action for personal injury, including the element of damage, are present . . . .’”
Post at 8-9, 15, quoting Connelly, supra at 150-151 (emphasis omitted). Justice
Weaver then asserts: “At the time of Dr. Eby’s death, not all of the elements of a
wrongful death action had ‘occurred.’” Post at 9. To the contrary, clearly each
element of plaintiff’s negligence claims had occurred at the time of Eby’s death;
(continued…)
10
the common law must yield. Pulver v Dundee Cement Co, 445 Mich 68, 75 n 8;
515 NW2d 728 (1994).11 Accordingly, this Court has observed:
In general, where comprehensive legislation prescribes in
detail a course of conduct to pursue and the parties and things
affected, and designates specific limitations and exceptions, the
Legislature will be found to have intended that the statute supersede
and replace the common law dealing with the subject matter.
[Hoerstman Gen Contracting, supra at 74, quoting Millross v Plum
Hollow Golf Club, 429 Mich 178, 183; 413 NW2d 17 (1987), citing
2A Sands, Sutherland Statutory Construction (4th ed), § 50.05, pp
440-441].[12]
Here, as we have explained, the relevant sections of the Revised Judicature
Act comprehensively establish limitations periods, times of accrual, and tolling for
civil cases. MCL 600.5827 explicitly states that a limitations period runs from the
time a claim accrues “[e]xcept as otherwise expressly provided.” Accordingly, the
(…continued)
indeed, the crux of each claim is that defendants’ acts preceded and culminated in
Eby’s death.
11
Similarly, see Sington v Chrysler Corp, 467 Mich 144, 164; 648 NW2d
624 (2002) (“Codification of common-law rules makes those rules of no
consequence if they are inconsistent with the codification.”)
12
Justice Weaver’s effort at distinguishing Hoerstman and Millross on the
basis of their facts is unavailing. She points out that the statutory scheme at issue
here does not contain precisely the same language as the statutes at issue in those
cases. Post at 16-19. Hoerstman and Millross do not stand for the proposition
that the Legislature is bound to use certain language to convey its intent to
abrogate the common law in a given area, however. To the contrary, these cases
direct us to examine the scheme as a whole and ask if it constitutes
“‘comprehensive legislation prescrib[ing] in detail a course of conduct to pursue
and the parties and things affected, and designat[ing] specific limitations and
exceptions.’” Hoerstman Gen Contracting, supra at 74, quoting Millross, supra at
183. As Justice Weaver plainly states: “What is important in conveying [the]
intent [to abrogate] is that the legislation be comprehensive.” Post at 18.
11
statutes “designate specific limitations and exceptions” for tolling based on
discovery, as exemplified by MCL 600.5838, 600.5838a, 600.5839, and 600.5855.
The scheme also explicitly supersedes the common law as can be seen in the area
of medical malpractice, for instance, where this Court’s prestatutory applications
of the common-law discovery rule were superseded by MCL 600.5838a, in which
the Legislature codified the discovery rule for medical malpractice cases.
Finally, MCL 600.5855 is a good indication that the Legislature intended
the scheme to be comprehensive and exclusive. MCL 600.5855 provides for
essentially unlimited tolling based on discovery when a claim is fraudulently
concealed.13 If we may simply apply an extrastatutory discovery rule in any case
not addressed by the statutory scheme, we will render § 5855 effectively
meaningless. For, under a general extrastatutory discovery rule, a plaintiff could
toll the limitations period simply by claiming that he reasonably had no knowledge
of the tort or the identity of the tortfeasor. He would never need to establish that
the claim or tortfeasor had been fraudulently concealed.
13
MCL 600.5855 reads:
If a person who is or may be liable for any claim fraudulently
conceals the existence of the claim or the identity of any person who
is liable for the claim from the knowledge of the person entitled to
sue on the claim, the action may be commenced at any time within 2
years after the person who is entitled to bring the action discovers, or
should have discovered, the existence of the claim or the identity of
the person who is liable for the claim, although the action would
otherwise be barred by the period of limitations.
12
Since the Legislature has exercised its power to establish tolling based on
discovery under particular circumstances, but has not provided for a general
discovery rule that tolls or delays the time of accrual if a plaintiff fails to discover
the elements of a cause of action during the limitations period, no such tolling is
allowed. Therefore, we conclude that courts may not employ an extrastatutory
discovery rule to toll accrual in avoidance of the plain language of MCL 600.5827
and we reject this Court’s contrary conclusion in Chase v Sabin, 445 Mich 190,
191-192; 516 NW2d 60 (1994).14 Because the statutory scheme here is
14
This result is also consistent with our recent holding in Boyle, supra at
231-232, in which we declined to employ the discovery rule to the plaintiffs’ fraud
claim based, in part, on the plain language of MCL 600.5827, which also governed
accrual in that case.
We note that Justice Weaver, in particular, relies on Chase to support her
dissenting conclusion that “this case presents the unique situation in which this
Court has traditionally applied the discovery rule.” Post at 11, citing Stephens v
Dixon, 449 Mich 531, 534-536; 536 NW2d 755 (1995), in turn quoting Chase,
supra at 196-197. First, the plaintiff in Chase alleged that a surgeon negligently
injured him during surgery. Id. at 192. Therefore, the Chase Court’s broad
observations regarding appropriate use of the discovery rule are arguably dicta
when applied beyond the medical malpractice context. Most significantly, the
Chase Court concluded that use of the discovery rule was particularly appropriate
because a medical malpractice plaintiff will typically rely on a hospital or
physician’s records to prove his claim. Id. at 199-200. As Justice Weaver
observes, in contexts such as medical malpractice where the rule is typically
applied, “‘evidentiary records are rarely diminished by the passage of time’” and,
therefore, there is less concern for protecting defendants from fading memories
and time-flawed evidence. Post at 13, quoting Stephens, supra at 537. Thus,
although we reject the Chase Court’s use of a discovery rule when not authorized
by statute, we also fail to see how the instant case “presents the unique situation in
which this Court has traditionally applied the discovery rule[.]” Post at 11.
13
comprehensive, the Legislature has undertaken the necessary task of balancing
plaintiffs’ and defendants’ interests and has allowed for tolling only where it sees
fit. This is a power the Legislature has because such a statute of limitations bears
a reasonable relationship to the permissible legislative objective15 of protecting
defendants from stale or fraudulent claims. Gladych v New Family Homes, Inc,
468 Mich 594, 600; 664 NW2d 705 (2003). Accordingly, the lower courts erred
when they applied an extrastatutory discovery rule to allow plaintiff to bring her
claims 16 years after the death of her decedent. When the death occurred, the
“wrong upon which the claim is based was done.” Given this holding, we overrule
Johnson, supra, and its progeny.
Overruling these cases is the most appropriate course of action because they
run directly counter to the legislative scheme. Further, overruling them is not
problematic, under Robinson v Detroit, 462 Mich 439; 613 NW2d 307 (2000),
primarily because, by its nature, the discovery rule does not create expectation or
reliance interests. In Robinson, we explained that, in deciding whether to overrule
wrongly decided cases, we must consider whether “practical real-world
dislocations” would result, whether “reliance interests would work an undue
hardship, and whether changes in the law or facts no longer justify the questioned
decision.” Id. at 464-466. We have already explained that the statutory law, and
its changes over time, cause us to question the validity of court-imposed
15
Phillips v Mirac, 470 Mich 415, 436; 685 NW2d 174 (2004).
14
applications of the discovery rule. Most significantly, the nature of the discovery
rule contravenes any argument that our decision affects plaintiffs’ reliance
interests. A plaintiff does not decide to postpone asserting a claim because he
relies on the availability of extrastatutory discovery-based tolling. To the
contrary, discovery-based tolling is a retroactive mechanism for relief to be used
only when a plaintiff could not anticipate his claims. To the extent reliance
interests figure into the analysis, it is the expectations of defendants—including
those who, as here, may have had as little indication that a claim existed as did the
plaintiff—that are harmed when a plaintiff brings claims long after an event
occurred. Defendants must, at some point, be able to safely dispose of business
records and other seemingly mundane evidence that they would have no reason to
expect could exculpate them in litigation.
Finally, our dissenting colleagues’ explanations for why we should not
overrule cases that employ a common-law discovery rule ignore the central
reasoning and result of our decision. Justice Kelly states, for instance, that “[t]he
common-law discovery rule has become so embedded in the fabric of Michigan
limitations law that the state’s jurisprudence will be seriously damaged by
destroying it.” Post at 15. But rather than destroy the discovery rule, we
recognize that the Legislature has comprehensively established the circumstances
15
under which the rule should be applied and has, in the process, rendered use of the
rule more uniform and predictable for plaintiffs, defendants and courts alike.16
B. ADDITIONAL RESPONSE TO DISSENTS
First, we reject Justice Kelly’s contention in dissent that the statutory
scheme evinces the Legislature’s intent simply to “ratif[y] prior decisions of this
Court applying the common-law discovery rule,” post at 12, and, therefore, to
“implicitly acknowledge[] the applicability of the rule in other types of cases.”
16
Although Justice Kelly criticizes us for disregarding precedent, post at 9-
10, she very recently indicated that she would have been more than willing to
overrule precedent she disfavored, e.g. People v Nutt, 469 Mich 565; 677 NW2d 1
(2004). See People v Smith, 478 Mich 292, 322 n 17; 733 NW2d 351 (2007). She
also voted to overrule another decision of this Court in Haynes v Neshewat, 477
Mich 29, 39; 729 NW2d 488 (2007), overruling Kassab v Michigan Basic Prop
Ins Assn, 441 Mich 433; 491 NW2d 545 (1992). Therefore, one is naturally
tempted to re-inquire, see Rowland v Washtenaw Co Rd Comm, 477 Mich 197,
223-228; 731 NW2d 41 (2007) (Markman, J., concurring), whether her ongoing
criticism truly concerns our attitudes toward precedent or merely her attitudes
toward specific previous decisions of the Court. Justice Kelly points to her
positions in recent cases including Liss v Lewiston-Richards, Inc, 478 Mich 203;
732 NW2d 514 (2007), Rohde v Ann Arbor Pub Schools, 479 Mich ___; ___
NW2d ___ (Docket No. 128768, decided July 25, 2007), and Michigan Citizens
for Water Conservation v Nestlé Waters of America, Inc, 479 Mich ___; ___
NW2d ___ (Docket No. 130802, decided July 25, 2007). She states: “[E]ven
though I did not agree with the precedent in these cases, I said nothing about
overruling it.” Post at 11 n 5. Yet, in Liss, although she did not expressly
advocate overruling precedent, she asserted that the holding of Smith v Globe Life
Ins Co, 460 Mich 446; 597 NW2d 28 (1999), “should be limited strictly to cases
involving the insurance industry.” Liss, supra at 217 (Kelly, J., dissenting). In
Rohde and Nestlé, although she acknowledged that the cases with which she
disagrees are binding precedent, she had no need to advocate for overruling them;
she expressly contended that these established cases did not preclude her preferred
outcomes in the cases at hand. Rohde, supra at ___ (Kelly, J., concurring);
Nestlé, supra at ___ (Kelly, J., dissenting).
16
Post at 13. She concludes that the Legislature has abrogated our decisions only to
“limit[] the discovery rule where it saw fit.” Post at 13. But we see no logical
reason to equate the Legislature’s “approval of the rule” —by its codification of
some of this Court’s uses of the rule—with the Legislature’s approval of every
application of the rule. Justice Weaver similarly suggests that, because the
Legislature paid particular attention only to these circumstances, “it is apparent
that the Legislature recognized the continuing existence and viability of the
common-law discovery rule and saw fit to limit it in certain instances (§§ 5838
and 5838a), but not in all instances.” Post at 22. Thus, our dissenting colleagues
conclude that the Legislature intended merely to limit the rule in some
circumstances rather than to establish limited circumstances in which the rule
applies.
But the scheme does not, as Justice Kelly asserts, merely “expressly
provid[e] that the discovery rule does not apply in professional negligence cases,”
thus “impl[ying] that it was to apply in all other contexts” under the maxim of
expressio unius est exclusio alterius. Post at 13 n 7. In drawing this conclusion,
Justice Kelly focuses on the first sections of MCL 600.5838 and 600.5838a, which
establish general limitations on the use of a discovery rule in professional and
medical malpractice cases. MCL 600.5838(1) provides, for example, that a
professional malpractice claim
accrues at the time [the professional] discontinues serving the
plaintiff in a professional or pseudoprofessional capacity as to the
matters out of which the claim for malpractice arose, regardless of
17
the time the plaintiff discovers or otherwise has knowledge of the
claim. [Emphasis added.]
The second section of this statute, however, explicitly authorizes discovery-
based tolling. MCL 600.5838(2) provides that
an action involving a claim based on malpractice may be commenced
at any time within the applicable period prescribed in sections 5805
or 5851 to 5856, or within 6 months after the plaintiff discovers or
should have discovered the existence of the claim, whichever is later.
[Emphasis added.]
In other words, the statute simultaneously authorizes and limits the
circumstances under which tolling is appropriate. The same is true of the other
statutes that our dissenting colleagues claim merely limit how the rule applies in
certain cases; each statute comprehensively authorizes and limits the use of
discovery-based tolling in particular circumstances.17 Because the statutes
17
MCL 600.5838a(1) provides that a medical malpractice claim “accrues at
the time of the act or omission that is the basis for the claim of medical
malpractice, regardless of the time the plaintiff discovers or otherwise has
knowledge of the claim.” MCL 600.5838a(2), in turn, authorizes limited use of
the rule, stating: “an action involving a claim based on medical malpractice may
be commenced at any time within the applicable period prescribed in section 5805
or sections 5851 to 5856, or within 6 months after the plaintiff discovers or should
have discovered the existence of the claim, whichever is later.” MCL
600.5838a(2) and (3) round out the statute’s comprehensive governance of
discovery-based tolling in this area. These sections require that actions
commenced on the basis of discovery must be brought within six years of the act
or omission unless the claim involves permanent loss of or damage to a
reproductive organ resulting in the inability to procreate or discovery of the claim
was prevented by the fraudulent conduct of the defendant or his agents.
In a similar vein, MCL 600.5839(1) expressly authorizes plaintiffs to bring
suit to recover damages arising out of a defective and unsafe condition of an
improvement to real property on the basis of when they discover the defect; such a
suit must be brought within “1 year after the defect is discovered or should have
(continued…)
18
authorize use of discovery-based tolling, we cannot agree that “[t]he only possible
reason the Legislature would have included this language is to take professional
negligence claims outside the scope of the common-law discovery rule.” Post at
13 n 7. Moreover, the general prohibition on use of the discovery rule in
malpractice cases is not “reduced to a redundancy” because it “remove[s]
professional negligence claims from the scope of a rule that the Legislature never
recognized as existing.” Post at 13-14 n 7. Rather, in light of this Court’s
ongoing use of the discovery rule, particularly in the medical malpractice arena,
the Legislature pointedly clarified that a malpractice claim accrues regardless of
when it is discovered, consistent with the mandate in MCL 600.5827, while also
prescribing a tolling period for commencement of a suit based on discovery.
Most significantly, both dissenting justices’ interpretations of the scheme
directly contravene the broad mandate in § 5827 that, “[e]xcept as otherwise
expressly provided, the period of limitations runs from the time the claim
accrues.” In accord with this mandate, MCL 600.5838, 600.5838a, 600.5839, and
600.5855 provide that certain actions may be commenced after a claim is
discovered, although the claim accrued in the past and the limitations period has
run. Thus, these statutes are clearly expressed exceptions to the general rule in §
(…continued)
been discovered.” The statute also lists certain criteria that justify use of the rule
and limits its application to claims brought within “10 years after the time of
occupancy of the completed improvement, use, or acceptance of the
improvement.” Id.
19
5827 that the limitations period begins running when the harm is done. Indeed,
expressio unius est exclusio alterius.
MCL 600.5855 also belies the contention that the statutory exceptions
merely limit, rather than exclusively authorize, discovery-based tolling under
certain circumstances. As we have discussed, MCL 600.5855 provides for
essentially unlimited tolling based on discovery when a claim is fraudulently
concealed. If we may apply an extrastatutory discovery rule in any case not
covered by the expressed exceptions, we will render § 5855 effectively
meaningless because a plaintiff may toll the limitations period simply by claiming
he reasonably had no knowledge of the tort or the identity of the tortfeasor. He
would never need to allege fraudulent concealment.
Justice Weaver’s argument regarding this issue only serves to strengthen
our point. She explains that “the fraudulent concealment provision would not be
helpful to this plaintiff, nor to other plaintiffs who, in the absence of fraudulent
concealment, are unable to pursue a claim because they did not have the
information necessary to establish a claim until after the period of limitation had
expired.” Post at 20. Therefore, she concludes: “Given the distinct need for the
common-law discovery rule to assist these innocent plaintiffs, it cannot be said
that the continued existence of the discovery rule makes § 5855 superfluous. The
two provisions can peacefully co-exist because they serve different purposes.”
Post at 21.
20
To the contrary, the common-law discovery rule fully encompasses the
statutory rule allowing tolling based on fraudulent concealment. As described by
Justice Weaver, for instance, the common-law rule applied if the “plaintiff did not
have enough information to allege” elements of the claim, through no fault of his
own. Post at 9. The discovery of previously unknown information would
therefore permit a claim to be saved by the discovery rule regardless of whether
the information was intentionally obscured from the plaintiff. Thus, Justice
Weaver’s interpretation renders the fraudulent concealment statute unnecessary—
because the statute’s purpose is subsumed by the broader common-law rule—and
ignores the Legislature’s decision to apply the discovery rule to one class of
undiscovered claims but not to all undiscovered claims. Although she attempts to
protect innocent plaintiffs, she fails to acknowledge that the Legislature has
balanced its desire to protect such plaintiffs against its desire to protect defendants
from having to defend stale claims; the outcome of the balancing differs on the
basis of the defendant’s culpability, or lack thereof, for obscuring the claim.
Finally, we also disagree with Justice Kelly’s contention that the lower
courts could nonetheless employ a discovery rule here because courts commonly
did so in 1986 at the time of Eby’s death. She cites MCL 600.5869, which states:
“[a]ll actions and rights shall be governed and determined according to the law
under which the right accrued, in respect to the limitations of such actions or right
of entry.” Post at 21. MCL 600.5827 and the three-year limitations period for
wrongful death actions under MCL 600.5805 have existed in their current forms
21
since 1961 and 1978, respectively.18 Moreover, the related statutes defining and
limiting the use of discovery rules under particular circumstances have also
existed since 1986.19 Thus, the relevant statutory law has not changed since 1986.
Regardless of whether we agree with Justice Kelly that § 5869 encompasses both
statutory and common law, she presents no authority or explanation for how a
unique, equitable, inherently backward-looking doctrine such as the discretionary
common-law discovery rule can be meaningfully applied as “the law under which
the right accrued.” First, a court could not have invoked the discovery rule in
1986 when the “right accrued” because it was unnecessary; the limitations period
had not run. Second, § 5869 does not require use of the rule, as Justice Kelly
presumes. Post at 22 n 13. Rather, the rule is judge-made law that has been
applied on a case-by-case basis. In essence, Justice Kelly’s theory would render
our opinion paradoxically meaningless because our holding would not apply to
events occurring any time before the day we decide this case; although a claim that
accrues tomorrow will be subject to the relevant statutory period and exceptions, a
claim that accrued in 1986 may be brought at any time in the future, indefinitely.
Most significantly, Justice Kelly’s focus on MCL 600.5869 obscures the
crux and effect of her position; she is asking us to refrain from applying our
18
1961 PA 236; 1978 PA 495.
19
MCL 600.5838 (amended by 1975 PA 142 to address discovery-based
tolling); MCL 600.5838a (enacted by 1986 PA 178 with language addressing
(continued…)
22
holding in this case to this case. This position violates the general rule that
decisions are retroactive unless “exigent circumstances” justify the “extreme
measure” of prospective-only application. Devillers v Auto Club Ins Ass’n, 473
Mich 562, 586; 702 NW2d 539 (2005) (internal quotations omitted). Even when a
decision meets the threshold criterion for prospective application because it clearly
establishes a new principle of law, we must consider: “(1) the purpose to be
served by the new rule, (2) the extent of reliance on the old rule, and (3) the effect
of retroactivity on the administration of justice.” Pohutski v City of Allen Park,
465 Mich 675, 696; 641 NW2d 219 (2002). Here, prospective-only application is
inappropriate. First, the very purpose of our holding is to respect limits the
Legislature has placed on plaintiffs’ abilities to revive suits relying on events
occurring in the distant past; prospective application is therefore directly opposed
to our resolve to honor the Legislature’s policy choice. Moreover, as we already
explained, the very nature of the discovery rule defies any reliance on its
operation. Finally, the administration of justice is not significantly affected
because the rights and interests of plaintiffs and defendants are opposed in these
matters; although plaintiffs may be denied relief for stale claims, defendants and
the judiciary are relieved from having to defend and decide cases based on
deteriorated evidence.
(…continued)
discovery); MCL 600.5839(1) (amended by 1985 PA 188 to address discovery-
based tolling); MCL 600.5855 (enacted by 1961 PA 236).
23
For similar reasons, our decision does not “throw[] Michigan into topsy-
turvy land, where a person’s legal claim dies before it is born.” Post at 23. A
discovery rule is only necessary when a plaintiff’s claim has accrued and he
cannot bring suit within the limitations period. Nothing in our decision cuts off a
plaintiff’s right to bring suit before the wrong is done; for, until the wrong is done,
a claim does not accrue under MCL 600.5827.
C. DUE PROCESS
Plaintiff also asserts that, in construing MCL 600.5827 as we do, we
deprive her of due process20 because she cannot seek damages for her injury.
While she does not dispute that in normal circumstances three years, along with
the statutorily allowed extension for personal representatives, is reasonable, she
asserts that it is unreasonable if she had no way of knowing the identity of the
perpetrator of the wrong. That is, she argues that it is unconstitutional for the
Legislature to deprive a plaintiff who has an injury—but who, through no fault of
his own, has no knowledge of who injured him—of a cause of action.
Plaintiff’s reasoning is rooted in the following passage from Price v
Hopkin, 13 Mich 318, 324 (1865):
[T]he legislative authority is not so entirely unlimited that,
under the name of a statute limiting the time within which a party
shall resort to his legal remedy, all remedy whatsoever may be
taken away. . . . It is of the essence of a law of limitation that it
shall afford a reasonable time within which suit may be brought
20
US Const, Am XIV; Const 1963, art 1, § 17.
24
and a statute that fails to do this cannot possibly be sustained as a
law of limitations, but would be a palpable violation of the
constitutional provision that no person shall be deprived of
property without due process of law. [Citations omitted.]
Justices Kelly and Weaver also rely on Price for their contention that our holding
violates due process. They misconstrue the holding in Price, however, which does
not apply to this case.
Price does not address the discovery rule. Rather, there, the Court was
faced with a new legislative enactment that shortened the limitations period during
which a plaintiff could bring a suit for ejectment from land. Id. at 322-323. When
the act took effect, it applied to all future cases that had not yet been filed. Id. at
323. Accordingly, the ability to bring suit was extinguished for a limited class of
plaintiffs who, before the act was passed, had relied on the former limitations
period and expected to be able to bring suit in the future. Id. at 323, 324-328. The
Price Court concluded that, under the circumstances, due process was violated
because a legislature may not “take away an existing right of action, by a statute of
limitations which allows no time in which to bring suit after the statute has come
into operation.” Id. at 324.
Accordingly, the specific holding in Price has no bearing on this case, in
which the limitations period has remained consistent since the time plaintiff’s
causes of action accrued.21 A plaintiff’s right to due process is not violated
21
Justice Weaver argues that, in Chase, supra at 196, this Court cited Price
as general support for continued use of the discovery rule. Post at 24-25. The
(continued…)
25
because a desired remedy is no longer available; every statute of limitations
deprives plaintiffs of a remedy at the moment the period of limitations expires.
Indeed, in Price, the newly shortened limitations period was not problematic, in
and of itself, as a matter of law. Price, supra at 323-324. Rather, it was only
unconstitutional as applied to the plaintiff. Id. at 328. The general rule expressed
in Price remains:
The general power of the legislature to pass statutes of
limitation is not doubted. The time that these statutes shall allow for
bringing suits is to be fixed by the legislative judgment, and where
the legislature has fairly exercised its discretion, no court is at liberty
to review its action, and to annul the law, because in their opinion
the legislative power has been unwisely exercised. [Price, supra at
324.]
Given the Legislature’s unquestioned power, the only question we must ask—as
with any due process analysis of a statute that involves neither a suspect
classification such as race, alienage, ethnicity or national origin, nor a deprivation
(…continued)
reference to Price in Chase directly precedes a discussion of the general
proposition—rooted in MCL 600.5827 and explained in Connelly, supra—that a
negligence claim accrues not when a defendant breaches a duty, but when a
plaintiff is injured. Any other conclusion “could potentially bar a plaintiff’s
legitimate cause of action before the plaintiff’s injury.” Chase, supra at 196. We
agree that this potential effect could “‘declare the bread stale before it is baked,’”
id. at 197 (citation omitted), and raise the due process concerns described in Price.
We reject the Chase Court’s interpretation of Price only to the extent Chase may
be read, as Justice Weaver suggests, to assert that a plaintiff’s due process rights
are violated under Price if an otherwise reasonable limitations period expires
before a plaintiff is aware of the claim. Such an interpretation of Price would
eschew the Price Court’s assertion that it is fully within the power of the
Legislature to enact reasonable periods of limitations.
26
of a fundamental right—is whether it “‘bears a reasonable relation to a permissible
legislative objective.’” Phillips v Mirac, Inc, 470 Mich 415, 436; 685 NW2d 174
(2004) (citation omitted). Statutes of limitations “serve the permissible legislative
objective of relieving defendants of the burden of defending claims brought after
the time so established.” O'Brien v Hazelet & Erdal, 410 Mich 1, 14; 299 NW2d
336 (1980).22 This Court has also explained that “[i]f the Legislature can entirely
abrogate a common-law right, surely it may provide that a particular cause of
22
See, also, Stephens v Dixon, 449 Mich 531, 536; 536 NW2d 755 (1995)
(brackets in original):
“While providing equitable relief to plaintiffs otherwise
barred by a strict application of the statute of limitations, the
discovery rule also threatens legitimate interests of the defendant
which the statute protects. While it may be harsh to bar the action of
a plaintiff who, through no fault of his own, did not discover his
injury until after the running of the statute, it is also unfair . . . to
compel a defendant to answer a charge arising out of events in the
distant past. The discovery rule tends to undermine the sense of
security that the statute of limitations was designed to provide,
namely, that at some point a person is entitled to put the past behind
him and leave it there.” [Olsen, The discovery rule in New Jersey:
Unlimited limitation on the statute of limitations, 42 Rutgers LR
205, 211-212 (1989).]
In her dissent, Justice Kelly asserts: “The purpose of a limitations statute is
to ‘penalize plaintiffs who have not been industrious in pursuing their claims,’ not
to eliminate a valid cause of action when the plaintiff is without fault.” Post at 19,
quoting Lemmerman v Fealk, 449 Mich 56, 65-66; 534 NW2d 695 (1995). She
ignores that limitations periods are also aimed at relieving defendants from the
burden of defending stale claims. Justice Weaver acknowledges the dual purposes
of limitations periods. When she asserts that the equities favor plaintiff in this
case, however, Justice Weaver merely distinguishes Stephens, supra, in which the
discovery rule was clearly inapplicable because the plaintiff knew of her injury
and its cause before the limitations period expired. Post at 8, 13-14.
27
action can no longer arise unless it accrues within a specified period of time.” Id.
at 15.
In light of the permissible legislative objectives of statutes of limitations,
O’Brien, supra, the statutes applicable to this case unquestionably further a
legitimate legislative aim. The Legislature obviously weighed carefully the
competing interests of plaintiffs and defendants when it limited a plaintiff’s ability
to bring suit under MCL 600.5827 and MCL 600.5805, but protected plaintiffs by
affording a limited extension for personal representatives, MCL 600.5852, as well
as a discovery-based tolling provision when a defendant fraudulently conceals
claims, MCL 600.5855. Given the three-year limitations period and its potential
extensions, we cannot say that the Legislature failed to “afford a reasonable time
within which suit may be brought.” Price, supra at 325. Accordingly, our holding
does not violate plaintiff’s due process rights.
D. EQUITABLE TOLLING UNDER BRYANT v OAKPOINTE VILLA
NURSING CENTRE, INC
Finally, we decline plaintiff’s request to employ a “pinpoint application of
equity” to her claims so as to render them timely, on the unique facts of this case.
In making this request, plaintiff relies largely on Bryant v Oakpointe Villa Nursing
Centre, Inc, 471 Mich 411; 684 NW2d 864 (2004). In Bryant, we addressed the
difference between actions sounding in ordinary negligence and those sounding in
medical malpractice. We concluded that some of the plaintiff’s claims sounded in
malpractice, and would have been barred by the malpractice limitations period.
28
Id. at 432. Nonetheless, we allowed the particular plaintiff’s malpractice claims to
proceed with the negligence claims because
[t]he distinction between actions sounding in medical malpractice
and those sounding in ordinary negligence is one that has troubled
the bench and bar in Michigan . . . [and the p]laintiff’s failure to
comply with the applicable statute of limitations is the product of an
understandable confusion about the legal nature of her claim, rather
than a negligent failure to preserve her rights. [Id. at 432.]
As we clarified in Devillers v Auto Club Ins Ass’n, 473 Mich 562, 590 n 65;
702 NW2d 539 (2005), however, our use of equity in Bryant is limited to those
circumstances when the courts themselves have created confusion. In Bryant, the
use of equity was appropriate because of “the preexisting jumble of convoluted
caselaw through which the plaintiff was forced to navigate.” Devillers, supra at
590 n 65. Here, in contrast, plaintiff has not detrimentally relied on confusing,
pre-existing case law. By its very nature, the discovery rule does not lend itself to
detrimental reliance; plaintiffs seeking to invoke it do not wait to bring suit
because they expect to rely on the rule, but because they claim that external factors
prevented them from discovering their claims.
Perhaps most significantly, in Bryant, no controlling statute negated the
application of equity; rather, this Court’s caselaw determined whether a claim
sounded in medical malpractice or ordinary negligence. Devillers, supra at 590 n
65. To the contrary, in the instant case, the statutory scheme controls limitations
periods, accrual, and tolling, just as the no-fault act, specifically MCL
500.3145(1), controlled the outcome in Devillers. Id. As we opined in Devillers,
29
supra at 591, if courts are free to cast aside a plain statute in the name of equity,
even in such a tragic case as this, then immeasurable damage will be caused to the
separation of powers mandated by our Constitution.23 Statutes lose their meaning
if “an aggrieved party need only convince a willing judge to rewrite the statute
under the name of equity.” Id. Significantly, such unrestrained use of equity also
undermines consistency and predictability for plaintiffs and defendants alike.
IV. CONCLUSION
We hold that the plain language of MCL 600.5827 precludes the use of a
broad common-law discovery rule to toll the accrual date of claims to which this
statute applies. Here, the wrong was done when Eby was raped and murdered in
1986. MCL 600.5827 was in effect at that time. Accordingly, plaintiff’s claims
accrued at the time of Eby’s death. The Legislature has evinced its intent that,
despite this tragedy, the defendant-appellants may not face the threat of litigation
16 years later, merely because plaintiff alleges she could not reasonably discover
the facts underlying their potential negligence until 2002.
We reverse the judgment of the Court of Appeals as well as the circuit
court’s order denying the defendant-appellants’ motions for summary disposition
23
Const 1963, art 3, § 2.
30
under MCR 2.116(C)(7). We remand to the circuit court for further proceedings
consistent with this opinion.
Maura D. Corrigan
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
31
STATE OF MICHIGAN
SUPREME COURT
DAYLE TRENTADUE, as Personal
Representative of the Estate of
MARGARETTE F. EBY, Deceased,
Plaintiff-Appellee,
v No. 128579
JEFFREY GORTON, VICTOR NYBERG,
TODD MICHAEL BAKOS, MFO
MANAGEMENT COMPANY, and CARL
F. BEKOFSKE, as Personal Representative
of the Estate of RUTH R. MOTT, Deceased,
Defendants,
and
BUCKLER AUTOMATIC LAWN
SPRINKLER COMPANY, SHIRLEY
GORTON and LAURENCE W. GORTON,
Defendants-Appellants.
DAYLE TRENTADUE, as Personal
Representative of the Estate of
MARGARETTE F. EBY, Deceased,
Plaintiff-Appellee,
v Nos. 128623, 128624, and
128625
BUCKLER AUTOMATIC LAWN
SPRINKLER COMPANY, SHIRLEY
GORTON, LAURENCE W. GORTON,
JEFFREY GORTON, 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.
WEAVER, J. (dissenting).
I dissent from the majority’s conclusion that MCL 600.5827 exclusively
governs the time of accrual of plaintiff’s claims. I would affirm the Court of
Appeals decision applying the common-law “discovery rule,”1 which operates to
toll the statutory period of limitations when a plaintiff could not have reasonably
discovered the elements of a cause of action within the limitations period.
Further, I concur with Justice Kelly that under the test set forth in Robinson
v Detroit,2 the discovery rule “has become so embedded, so accepted, so
fundamental, to everyone’s expectations that to change it would produce not just
readjustments, but practical real-world dislocations.”3
1
Johnson v Caldwell, 371 Mich 368, 379; 123 NW2d 785 (1963). See also
Moll v Abbott Laboratories, 444 Mich 1, 16-17; 506 NW2d 816 (1993).
2
462 Mich 439; 613 NW2d 307 (2000).
3
Id. at 466.
2
FACTS
In 1981, Dr. Margaret Eby moved to Flint, Michigan, and began leasing a
two-story gatehouse located near the entrance to the Ruth R. Mott estate (Mott
Estate). Evidently Mrs. Mott lived a hermitic lifestyle on the Mott Estate grounds
known as “Applewood.” Virtually all her personal dealings were handled by the
Mott Family Office (MFO).4
The gatehouse was remotely located some distance from Mrs. Mott’s home
and the gatehouse basement contained the valves and piping that supported the
sprinkler system for the entire Mott Estate grounds. In January 1985, Dr. Eby
complained to Mrs. Mott about break-ins she experienced at the gatehouse,
including an incident on January 23, 1985, during which Dr. Eby’s compact disc
player and purse were stolen. Paul Yager, then the chief executive officer of
MFO, responded to Dr. Eby’s complaint on behalf of Mrs. Mott. In response to
Dr. Eby’s complaint and her request for installation of a security alarm system,
Mrs. Mott had new deadbolt locks installed. No alarm system was installed.
Nearly two years later, late in the evening on November 7, 1986, Dr. Eby
returned to the gatehouse after a dinner party. Two friends accompanied her to the
gatehouse door and waited until she was safely inside before departing. Two days
later, Dr. Eby was found dead in her gatehouse. She had been attacked, raped, and
4
MFO was formed in 1969 to attend to the financial and personal needs of
Ruth Mott, her children, and her nieces and nephews.
3
knifed to death. The police investigation of Dr. Eby’s death focused primarily on
persons who might have been known to Dr. Eby because there appeared to be no
sign of forced entry. Police interviewed a number of suspicious persons, but there
was never any evidence developed that implicated those persons in Dr. Eby’s
death. The evidence collected included deoxyribonucleic acid (DNA) evidence
(semen) from Dr. Eby’s body, as well as a partial fingerprint from a faucet inside
the gatehouse.
In 1991, Nancy Ludwig, an airline attendant, was attacked, raped, and
knifed to death in a hotel near the Detroit Metropolitan Airport. The
circumstances surrounding her death were strikingly similar to Dr. Eby’s, and at
the request of Dr. Eby’s son, the police reopened the investigation into Dr. Eby’s
death. After additional DNA testing on evidence collected from both victims, and
after comparing fingerprints left at both crime scenes, investigators were able to
determine that Jeffrey Gorton committed both murders.5
Before Dr. Eby’s death in 1986, Jeffrey Gorton was an employee of
Buckler Automatic Lawn Sprinkler Company (Buckler), which serviced the Moss
Estate’s sprinkler system. Buckler was owned by Jeffrey Gorton’s parents,
Laurence and Shirley Gorton. Jeffrey Gorton was provided access to the sprinkler
5
Gorton was apprehended in Florida and sentenced to life in prison on
February 13, 2003, after pleading no contest to first-degree murder, MCL 750.316,
and first-degree criminal sexual conduct, MCL 750.520b.
4
system controls housed in the gatehouse basement through Mott Estate staff
members Victor Nyberg and Todd Bakos, both allegedly employed by MFO.
On August 2, 2002, six months after discovering the identity of Dr. Eby’s
murderer through the arrest of Gorton, plaintiff Dayle Trentadue, daughter of Dr.
Eby and personal representative for the estate of Margarette F. Eby (estate of
Eby), filed a wrongful death complaint against multiple defendants. The
defendants included Buckler, its owners Laurence and Shirley Gorton, Jeffrey
Gorton, Ruth Mott, MFO, and MFO employees Nyberg and Bakos. The
complaint alleged, among other things, negligent hiring and negligent supervision
of Dr. Eby’s killer, Jeffrey Gorton.6
With regard to her claims against the Mott Estate, MFO, and Nyberg and
Bakos for negligent hiring and negligent supervision, plaintiff alleges that on
November 5, 1986, MFO employees Nyberg and Bakos provided Gorton with
unsupervised access to the gatehouse basement to winterize the sprinklers, and that
6
With regard to her claims against Buckler and the Gortons for negligent
hiring and negligent supervision, plaintiff alleges that in 1985, a year before
Gorton killed Dr. Eby, Gorton’s parents were aware that Gorton had just been
released from a Florida prison after serving time for assault crimes. Evidently
Jeffrey Gorton had a history of violence against women and his felony convictions
in Florida involved physical assaults on women.
His paternal grandparents even appeared for his sentencing in Florida and
begged the judge to permit Gorton to get psychiatric help for his violent outbursts
against women. Yet, despite this knowledge, the Gortons employed their son in
the family business and sent him to service the sprinklers at the Mott Estate.
5
it was by this means that Gorton was subsequently able to come back on
November 7 to attack and kill Dr. Eby.7 Moreover, despite Dr. Eby’s earlier and
repeated requests to defendants Ruth Mott and MFO to improve the security of the
gatehouse, plaintiff alleges that defendants were negligent in failing to provide
adequate security, thereby permitting Jeffrey Gorton’s access to the gatehouse.
All defendants filed motions for summary disposition, but the circuit court
granted summary disposition only to defendants Mott and MFO, and only on one
count (count VIII, which alleged that the premises were unsafe). The parties
appealed, and the Court of Appeals reversed summary disposition for MFO on
count VIII, affirmed in all other respects, and remanded the matter to the circuit
court for further proceedings.8 In so ruling, the Court of Appeals concluded that
the discovery rule tolled the period of limitations because plaintiff had no basis to
assert claims against any defendant until the murderer’s culpability was
discovered.
Defendants appealed, and we granted leave, directing the parties to include
among the issues to be briefed:
7
Plaintiff suggests that when Nyberg and Bakos gave Gorton access on
November 5, they failed to re-secure the gatehouse basement access so that Gorton
was then later able to enter the gatehouse on November 7 through the unlocked
basement door.
8
Trentadue v Buckler Automatic Lawn Sprinkler Co, 266 Mich App 297;
701 NW2d 756 (2005). The decision was initially unpublished, but the court later
granted plaintiff’s publication request.
6
[W]hether the Court of Appeals application of a common-law
discovery rule to determine when plaintiff’s claims accrued is
inconsistent with or contravenes MCL 600.5827, and whether
previous decisions of this Court, which have recognized and applied
such a rule when MCL 600.5827 would otherwise control, should be
overruled. [Trentadue v Buckler Automatic Lawn Sprinkler Co, 475
Mich 906 (2006).]
ANALYSIS
MCL 600.5805(10) provides that in wrongful death actions, “[t]he period of
limitations is 3 years after the time of the death or injury . . . to recover damages
for the death of a person . . . .” Further, MCL 600.5827 states:
Except as otherwise expressly provided, the period of
limitations runs from the time the claim accrues. The claim accrues
at the time provided in sections 5829 to 5838, and in cases not
covered by these sections the claim accrues at the time the wrong
upon which the claim is based was done regardless of the time when
damage results.
Both of the above provisions appear in the Revised Judicature Act, MCL
600.5801 et seq., in the chapter entitled “Limitation of Actions.” The policy
considerations behind the enactment of statutes of limitations were noted by this
Court in Lothian v Detroit:9
They encourage the prompt recovery of damages, Buzzn v
Muncey Cartage Co, 248 Mich 64, 67; 226 NW 836 (1929); they
penalize plaintiffs who have not been industrious in pursuing their
claims, First National Bank of Ovid v Steel, 146 Mich 308; 109 NW
423 (1906); they “afford security against stale demands when the
circumstances would be unfavorable to a just examination and
decision”, Jenny v Perkins, 17 Mich 28, 33 (1868); they relieve
9
414 Mich 160, 166-167; 324 NW2d 9 (1982).
7
defendants of the prolonged fear of litigation, Bigelow [v Walraven],
supra, [392 Mich at] 576 [;221 NW2d 328 (1974)]; they prevent
fraudulent claims from being asserted, Bailey v Glover, 88 US (21
Wall) 342; 22 L Ed 636 (1875); and they “‘remedy . . . the general
inconvenience resulting from delay in the assertion of a legal right
which it is practicable to assert’”. Lenawee County v Nutten, 234
Mich 391, 396; 208 NW 613 (1926).
In Lemmerman v Fealk,10 we further noted that “‘the primary purposes
behind statutes of limitations are: 1) to encourage plaintiffs to pursue claims
diligently, and 2) to protect defendants from having to defend against stale and
fraudulent claims.’” And certainly, had plaintiff herein failed to diligently pursue
her claim, or attempted to file a fraudulent claim, this Court would not hesitate to
summarily apply these statutes of limitations to bar plaintiff’s suit.
However, neither of these policy considerations will be furthered by
application of these provisions given that plaintiff was deprived of the evidence
necessary to even establish that a claim existed until long after the period of
limitations had expired. It is precisely in situations such as the one plaintiff here
faces that this Court has applied the discovery rule to prevent a statute of
limitations from foreclosing on a plaintiff’s right to bring suit. And, in fact, the
law in this state in 1986, the year of Dr. Eby’s murder, was that a cause of action
did not accrue until the elements forming the basis of the complaint could be
pleaded:
10
449 Mich 56, 65; 534 NW2d 695 (1995) (citation omitted).
8
In the case of an action for damages arising out of tortious
injury to a person, the cause of action accrues when all of the
elements of the cause of action have occurred and can be alleged in a
proper complaint.
Those elements are four in number.
(1) The existence of a legal duty by defendant toward
plaintiff.
(2) The breach of such duty.
(3) A proximate causal relationship between the breach of
such duty and an injury to the plaintiff.
(4) The plaintiff must have suffered damages.11
At the time of Dr. Eby’s death, not all of the elements of a wrongful death
action had “occurred.” The majority disagrees with this contention, ante at 10 n
10, arguing that each element of plaintiff’s claim had “occurred” at the time Dr.
Eby was murdered; however, while I concede that the events had “occurred,” the
fact is that plaintiff did not have enough information to allege that Dr. Eby’s death
was the result of the negligent acts of Ruth Mott, MFO and its employees, and
Buckler Automatic Sprinkler Co and its employees and owners. In other words,
the information available to plaintiff at the time of Dr. Eby’s death did not put
plaintiff on notice that a claim could be made against the various defendants.
Plaintiff was not alerted to the availability of a claim to be made against
defendants until plaintiff learned the identity of the killer and the killer’s
connection to defendants. Plaintiff was not aware of the killer’s identity, nor was
11
Connelly v Paul Ruddy’s Co, 388 Mich 146, 150; 200 NW2d 70 (1972).
9
plaintiff aware of the connection the killer had to any of the potential defendants.
Consequently, there was no basis for pleading that any duty was owed to the
plaintiff by any potential defendant. The evidence collected tended to show that
Dr. Eby was killed by an acquaintance, given that there was no sign of forced
entry into the gatehouse. Because the police evidently theorized that Dr. Eby
knew the killer, their investigation focused on Dr. Eby’s known acquaintances.
Consequently, the police never questioned killer Jeffrey Gorton, the
Buckler employee, nor was there ever any investigation into the relationship
between Buckler, MFO, and Ruth Mott. Dr. Eby’s murder remained unsolved
until years after the period of limitations had expired; thus, plaintiff lacked the
essential piece of evidence—the fact that Buckler employee Jeffrey Gorton
attacked, raped, and killed Dr. Eby. It was only upon discovering this critical
information that plaintiff was able to establish, after reopening the investigation,
that the elements necessary to bring a wrongful death claim were in fact all present
and could be alleged in a complaint.
And while defendants have asserted that despite the absence of the critical
information pertaining to how Dr. Eby in fact died, plaintiff could still have
adequately alleged a general negligence claim within the statutory period, had she
done so, her claim likely would have been deemed legally deficient given that the
criminal evidence collected at the time of Dr. Eby’s death tended to indicate that
Dr. Eby herself allowed the killer into her own home.
10
As we stated in Stephens v Dixon,12 this case presents the unique situation
in which this Court has traditionally applied the discovery rule:
In Michigan, the limitation period for ordinary negligence
actions such as the case at bar is three years. MCL 600.5805(8);
MSA 27A.5805(8). The most complicated problem associated with
statutes of limitation, and the problem presented in this case, is that
of determining when they begin to run. MCL 600.5805(8); MSA
27A.5805(8) provides that “[t]he claim accrues at the time . . . the
wrong upon which the claim is based was done regardless of the
time when damage results.” MCL 600.5827; MSA 27A.5827. We
have held that the term “wrong,” as used in the accrual provision,
refers to the date on which the plaintiff was harmed by the
defendant’s negligent act, not the date on which the defendant acted
negligently. Connelly v Paul Ruddy’s Equipment Repair & Service
Co, 388 Mich 146; 200 NW2d 70 (1972). Otherwise, a plaintiff’s
cause of action could be barred before the injury took place.
Another accrual problem associated with statutes of limitation
occurs when a plaintiff is injured but is unaware of the injury. If the
statute of limitation begins to run at the time of injury, it is possible
that plaintiffs with perfectly valid claims could be prevented,
through no fault of their own, from bringing their actions within the
specified period of limitation. In situations such as these, the
common law has developed equitable rules to mitigate the harsh
effects of the statute of limitation. One such exception is the
discovery rule. The discovery rule, based on principles of
fundamental fairness, “was formulated to avoid the harsh results
produced by commencing the running of the statute of limitations
before a claimant was aware of any basis for an action.” Hammer v
Hammer, 142 Wis 2d 257, 264; 418 NW2d 23 (1987).
We explained the discovery rule in Chase v Sabin, 445 Mich
190, 196-197; 516 NW2d 60 (1994). In Chase, a 1963 eye operation
failed because of an event that occurred during the operation. The
plaintiff was not told of the occurrence. In 1988, while pursuing an
unrelated worker’s compensation claim, the plaintiff’s attorney
obtained a hospital record of the surgery and learned of the event.
We stated:
12
449 Mich 531, 534-536; 536 NW2d 755 (1995).
11
“Similarly, because statutes of limitation do not evidence a
legislative intent to extinguish a cause of action before the plaintiff is
aware of the possible cause of action, we have adopted the discovery
rule in the appropriate instances. Last term . . . we held that the
discovery rule controls the date a pharmaceutical products liability
action accrues. ‘If the three-year period of limitation began to run at
the time of the defendant's breach, most, if not all, claims would be
barred before the plaintiff had reason to know of the injury and the
cause of the injury. Such an interpretation seeks “to declare the
bread stale before it is baked.”’” (Citation omitted.)
We note that while the discovery rule serves as an important
limit on a mechanical and unjust termination of a legitimate cause of
action, there can be equitable problems with the imposition of the
discovery rule as well. As one commentator has stated:
“While providing equitable relief to plaintiffs otherwise
barred by a strict application of the statute of limitations, the
discovery rule also threatens legitimate interests of the defendant
which the statute protects. While it may be harsh to bar the action of
a plaintiff who, through no fault of his own, did not discover his
injury until after the running of the statute, it is also unfair . . . to
compel a defendant to answer a charge arising out of events in the
distant past. The discovery rule tends to undermine the sense of
security that the statute of limitations was designed to provide,
namely, that at some point a person is entitled to put the past behind
him and leave it there. [Olsen, The discovery rule in New Jersey:
Unlimited limitation on the statute of limitations, 42 Rutgers L R
205, 211-212 (1989).]”
Given the competing interests of balancing the plaintiff’s right to bring a claim
once a plaintiff learns of the injuries with the defendant’s right not to have to
defend a stale claim, the Stephens Court went on to discuss when to apply the
discovery rule:
In the present case, the plaintiff proposes that we take a step
beyond the rule of Chase [v Sabin, supra]. There, we held that “the
discovery rule governs the accrual date for negligence claims,
pursued against hospitals and their agents, which are similar to
12
malpractice claims.” Id. at 201. By contrast, the present case
involves allegations of ordinary negligence.
In Moll v Abbott Laboratories, 444 Mich 1, 12-13; 506
NW2d 816 (1993), we noted this Court’s adoption of the discovery
rule for medical malpractice cases in Johnson v Caldwell, 371 Mich
368; 123 NW2d 785 (1963), in negligent misrepresentation cases in
Williams v Polgar, 391 Mich 6; 215 NW2d 149 (1974), and in
products liability actions for asbestos-related diseases in Larson v
Johns-Manville Sales Corp, 427 Mich 301; 399 NW2d 1 (1986). In
Moll, we extended the application of the discovery rule to products
liability actions for pharmaceutical products liability actions.
Defendant correctly points out that in these contexts, evidentiary
records are rarely diminished by the passage of time. Hence, as we
stated in Larson, supra at 312, quoting Eagle-Pitcher Industries, Inc
v Cox, 481 So2d 517, 523 (Fla App, 1985), “the concern for
protecting defendants from ‘time-flawed evidence, fading memories,
lost documents, etc.’ is less significant in these cases.” That is not
the case in automobile tort liability cases, where the evidence for
liability defense is often dependent on fading memories of individual
witnesses.
We hold that the discovery rule is not available in a case of
ordinary negligence where a plaintiff merely misjudges the severity
of a known injury. [Id. at 537.]
Ultimately, the Stephens Court declined to extend the discovery rule in that
case because, unlike plaintiff herein, the plaintiff in Stephens not only knew she
was injured, but knew the cause of her injury before the period of limitations
expired. The plaintiff in Stephens had argued that even though she knew she was
injured, she did not know the true extent of her injuries until after the period of
limitations had expired. Citing Connelly, supra, the Court declined to apply the
discovery rule and restated the rule that “a cause of action for tortious injury
13
accrues ‘when all of the elements of the cause of action have occurred and can be
alleged in a proper complaint.’”13
In contrast to the plaintiff in Stephens, plaintiff Trentadue, as personal
representative of the estate of Eby, did not have the information available to bring
a wrongful death claim until she knew who the killer was and how the killer
managed to get access to Dr. Eby’s private residence. Essentially, the “injury,”
that is, the wrongful death, was not apparent until 16 years after Dr. Eby’s death.
Nor was the “cause” of that injury apparent until after the period of limitations had
expired.
In determining when the wrongful death claim accrued, we turn to MCL
600.5827:
Except as otherwise expressly provided, the period of
limitations runs from the time the claim accrues. The claim accrues
at the time provided in sections 5829 to 5838, and in cases not
covered by these sections the claim accrues at the time the wrong
upon which the claim is based was done regardless of the time when
damage results. [Emphasis added.]
The statute does not define “wrong” or “damage,” but this Court has already
examined these terms and provided the following analysis:
Defendants argue that the statutory provision “* * * the claim
accrues at the time the wrong upon which the claim is based was
done regardless of the time when damage results” means, in the
context of this case, that claims against them are barred, since breach
of duty claimed against them must have occurred prior to March 15,
1965, more than 3 years before action was commenced.
13
Stephens, supra at 539, quoting Connelly, supra at 150.
14
Defendants contend that the word wrong refers to an act of
carelessness or negligence in repairing or handling the press. By
their view, the word damage refers to the personal injury suffered by
the plaintiff on May 12, 1965, the day that the press malfunctioned.
Defendants claim that interpreting the word wrong to mean
actionable wrong, tort, harm or injury is to broaden the meaning of
that word, and render the word damage entirely meaningless.
It is argued by the plaintiff that under such a view, her claim
is barred before she was hurt. She would never have been able to
commence an action at all.
By that interpretation, plaintiff says, the statute is not one of
limitation but one of abolition, completely destroying her cause of
action before it arises.
Defendants counter by pointing out that the statute of
limitations is a statute of repose, designed to protect defendants from
stale claims; that this is an industrial state and it is therefore
reasonable to conclude that the Legislature intended to protect
industrial and commercial interests by fixing a certain limit upon
exposure to liability for faulty products and workmanship.
We cannot accept the defendants’ view. However desirable
the stated objectives might be, it is doubted that such was the
legislative purpose. The statute in question is the Revised Judicature
Act. It was drawn, as defendants point out, by a distinguished
committee of lawyers, known as the Joint Committee on Michigan
Procedural Revision. The purpose of the Act was to effect
procedural improvements, not advance social, industrial or
commercial policy in substantive areas.
The word damage is not rendered meaningless in a fair
reading of the statute, even where the word wrong is understood to
mean actionable wrong.
It is quite common in personal injury actions to allege and
prove future loss of earning capacity, future medical expenses, future
pain and suffering. Indeed all of these elements must be alleged and
proved in a single cause of action. Once all of the elements of an
action for personal injury, including the element of damage, are
present, the claim accrues and the statute of limitations begins to
run. Later damages may result, but they give rise to no new cause of
15
action, nor does the statute of limitations begin to run anew as each
item of damage is incurred. [Connelly, supra at 150-151 (emphasis
added).]
Thus, for purposes of a wrongful death action in which a plaintiff seeks
damages for tortious injuries and death suffered by the decedent, the time that the
claim first accrues is the point in time when “all of the elements of an action for
personal injury, including the element of damage, are present . . . .” Because
plaintiff, through no fault of her own, lacked the information necessary to establish
the elements of wrongful death until 16 years after Dr. Eby’s death, the claim did
not accrue until plaintiff became aware of that information.
Today, the majority overrules Johnson and its progeny, effectively
depriving plaintiff, and future potential injured parties, from seeking compensation
when their injuries are not known to them before the statutory period of limitations
expires. As a result, statutes of limitations will be imposed not on those who
would sit on their rights, but on the innocent, who, through no fault of their own,
have been deprived of the information necessary to bring an otherwise valid claim.
The majority’s justification for the abolition of the discovery rule is that
with the enactment of MCL 600.5801 et seq., the Legislature created a
comprehensive statutory scheme meant to supersede any existing common law
dealing with the subject matter. Ante at 11-12. Yet, the authority cited in support
of the majority’s argument is unpersuasive. The majority points to Hoerstman
16
Gen Contracting, Inc v Hahn14 as the basis for its conclusion that MCL 600.5801
et seq. were enacted to abrogate the common-law discovery rule. However, in
Hoerstman, the statute at issue was Article 3 of the Uniform Commercial Code,
MCL 440.3101 et seq. The question we faced was whether after the enactment of
MCL 440.3311, the common-law defense of accord and satisfaction was
eliminated. In finding that the Legislature did so intend, we stated:
As already noted, Article 3 of the UCC is comprehensive. It is
intended to apply to nearly every situation involving negotiable
instruments. See MCL 440.3102. The language contained in MCL
440.3311 completely covers the details of accord and satisfactions.
MCL 440.3311(3) and (4) contain exceptions or conditions.
Their enumeration eliminates the possibility of their being other
exceptions under the legal maxim expressio unius est exclusio
alterius. The maxim is a rule of construction that is a product of
logic and common sense. This Court long ago stated that no maxim
is more uniformly used to properly construe statutes.
Therefore, the language of the statute shows that the
Legislature covered the entire area of accord and satisfactions
involving negotiable instruments. It clearly intended that the statute
would abrogate the common law on this subject. [Id. at 74-75
(citations omitted; emphasis added).]
The rationale from Hoerstman is not applicable to the statutory scheme at
issue here because MCL 600.5801 et seq. lack the comprehensive enactment
language found in the negotiable instruments statute. Importantly, MCL 440.3102
defines the scope of the statute and its reach, whereas the same cannot be said of
14
474 Mich 66, 74; 711 NW2d 340 (2006), quoting Millross v Plum
Hollow Golf Club, 429 Mich 178, 183; 413 NW2d 17 (1987), citing 2A Sands,
Sutherland Statutory Construction (4th ed), § 50.05, pp 440-441.
17
MCL 600.5805. In particular, MCL 440.3102(1) provides: “This article applies to
negotiable instruments. It does not apply to money, to payment orders governed
by article 4a, or to securities governed by article 8.” (Emphasis added.) Chapter
58 of the Revised Judicature Act does not contain a comparable provision defining
the scope of the chapter.
The majority claims that Hoerstman and Millross are not distinguishable on
this basis, ante at 11 n 12, because these cases do not establish that the Legislature
must use certain language to abrogate the common law. However, as the
Hoerstman Court correctly noted, “[t]he Legislature has the authority to abrogate
the common law.”15 And “[w]hen it does so, it should speak in no uncertain
terms.”16 Thus, language defining the scope of a chapter is just one example of the
kind of language that the Legislature has used to convey its intent to abrogate the
common law. What is important in conveying such intent is that the legislation be
comprehensive.
For example, the Hoerstman Court cited Millross, supra, for the
proposition that comprehensive legislation abrogates the common law.17 Millross
provides even stronger evidence that the statutory scheme herein is distinct from
the statutory schemes at issue in both Hoerstman and Millross. Specifically, in
15
Id. (citation omitted).
16
Id. (citations omitted).
17
Hoerstman, supra at 74.
18
Millross, this Court noted that abrogation was appropriate because it was clear that
“the Legislature intended the dramshop act to be a complete and self-contained
solution to a problem not adequately addressed at common law and the exclusive
remedy for any action arising under ‘dramshop-related facts.’”18 “Indeed,” the
Court went on to note that
the Legislature has amended the act to expressly codify this intent in
1986 PA 176, which provides in pertinent part, “This section
provides the exclusive remedy for money damages against a licensee
arising out of the selling, giving, or furnishing of alcoholic liquor.”
MCL 436.22(11); MSA 18.993(11). [Millross, supra at 186(emphasis added).]
In contrast, nowhere in Chapter 58, Limitations of Actions, is there a
provision establishing that that chapter is exclusive. Nor is there any language
evidencing an intent by the Legislature to abolish the common-law discovery rule
in order to provide “complete and self-contained” legislation limiting the time in
which actions could be brought and thereby replace the discovery rule.
The majority asserts, ante at 12, that because the Legislature included MCL
600.5855,19 the application of the common-law discovery rule will render § 5855
18
Millross, supra at 185-186.
19
MCL 600.5855 states:
If a person who is or may be liable for any claim fraudulently
conceals the existence of the claim or the identity of any person who
is liable for the claim from the knowledge of the person entitled to
sue on the claim, the action may be commenced at any time within 2
years after the person who is entitled to bring the action discovers, or
should have discovered, the existence of the claim or the identity of
(continued…)
19
meaningless. I disagree, given that in order for a plaintiff to avail himself or
herself of § 5855, there must still be evidence of fraudulent concealment. Here,
where there does not appear to be evidence of fraudulent concealment on the part
of any of the named defendants, plaintiff would not be able to use this provision.20
Thus, the fraudulent concealment provision would not be helpful to this plaintiff,
nor to other plaintiffs who, in the absence of fraudulent concealment, are unable to
pursue a claim because they did not have the information necessary to establish a
claim until after the period of limitations had expired.
(…continued)
the person who is liable for the claim, although the action would
otherwise be barred by the period of limitations.
20
This Court discussed fraudulent concealment in International Union
United Auto Workers v Wood, 337 Mich 8, 13-14; 59 NW2d 60 (1953):
Fraudulent concealment was defined in De Haan v. Winter,
258 Mich 293, 296[; 241 NW 923 (1932), superseded by statute on
other grounds Morgan v Taylor, 434 Mich 180 (1990)], as meaning
the “employment of artifice, planned to prevent inquiry or escape
investigation, and mislead or hinder acquirement of information
disclosing a right of action. The acts relied on must be of an
affirmative character and fraudulent.”
* * *
Fraudulent concealment is more than mere silence.
McNaughton v. Rockford State Bank, 261 Mich 265, 268[; 246 NW
84 (1933)].
* * *
. . . Concealment by one other than the one sought to be
charged is not within the prohibition of the statute. See Stevenson v
Robinson, 39 Mich 160 [1878].
20
Further, I disagree with the majority’s assertion that a narrowly drawn
statute purports to change an entire body of common law in the absence of the
Legislature explicitly stating that it so intends. The majority’s assertion
incorrectly assumes that a narrowly tailored statute, which is silent with regard to
the broad scope of the discovery rule, somehow changes the entire application of
the discovery rule.21
Given the distinct need for the common-law discovery rule to assist these
innocent plaintiffs, it cannot be said that the continued existence of the discovery
rule makes § 5855 superfluous. The two provisions can peacefully co-exist
because they serve different purposes.
Indeed, it is evident that when the Legislature wanted to supersede the
common-law discovery rule, it did so specifically with regard to certain claims.
For example, MCL 600.5838 establishes the time in which a malpractice claim
accrues:
(1) Except as other provided in section 5838a, a claim based
on the malpractice of a person who is, or holds himself or herself out
to be, a member of a state licensed profession accrues at the time
21
While the majority asserts incorrectly that the fraudulent concealment
statute is “subsumed,” ante at 21, by the discovery rule because the discovery rule
encompasses both fraudulent concealment claims and nonfraudulent concealment
claims, the fact that the discovery rule has a broader application than the
fraudulent concealment statute does not mean that the Legislature sought to allow
the use of the discovery rule only with respect to fraudulent concealment claims.
Nor does the continued existence of the discovery rule vitiate the fraudulent
concealment statute, which merely represents the Legislature’s decision to specify
how the common-law discovery rule applies to fraudulent concealment claims.
21
that person discontinues serving the plaintiff in a professional or
pseudoprofessional capacity as to the matters out of which the claim
for malpractice arose, regardless of the time the plaintiff discovers or
otherwise has knowledge of the claim.
(2) Except as otherwise provided in section 5838a, an action
involving a claim based on malpractice may be commenced at any
time within the applicable period prescribed in sections 5805 or
5851 to 5856, or within 6 months after the plaintiff discovers or
should have discovered the existence of the claim, whichever is later.
The burden of proving that the plaintiff neither discovered nor
should have discovered the existence of the claim at least 6 months
before the expiration of the period otherwise applicable to the claim
shall be on the plaintiff. A malpractice action which is not
commenced within the time prescribed by this subsection is barred.
[Emphasis added.][22]
In contrast to the malpractice limitation provisions, which indicate with
specificity how the discovery rule should be applied, the wrongful death limitation
provisions at issue here do not bar the use of the common-law discovery rule, nor
do they limit the application of the discovery rule in certain instances. Given the
co-existence of these various limitation provisions, it is apparent that the
Legislature recognized the continuing existence and viability of the common-law
discovery rule and saw fit to limit it in certain instances (§§ 5838 and 5838a), but
not in all instances. Specifically, MCL 600.5805 does not contain any provisions
limiting the application of the discovery rule, but instead provides:
(1) A person shall not bring or maintain an action to recover
damages for injuries to persons or property unless, after the claim
first accrued to the plaintiff or to someone through whom the
22
MCL 600.5838a contains a comparable accrual provision abolishing the
availability of the discovery rule for medical malpractice claims filed under that
statute.
22
plaintiff claims, the action is commenced within the periods of time
prescribed by this section.
* * *
(10) The period of limitations is 3 years after the time of the
death or injury for all other actions to recover damages for the death
of a person, or for injury to a person or property.
Ultimately, if plaintiff is denied her day in court on the basis of the
majority’s interpretation of MCL 600.5827, plaintiff will be denied due process.
This Court has held that while the Legislature has the power to enact statutes of
limitations, those provisions will be deemed unconstitutional if they unreasonably
deprive a plaintiff from bringing an otherwise valid claim:
The general power of the legislature to pass statutes of
limitation is not doubted. The time that these statutes shall allow for
bringing suits is to be fixed by the legislative judgment, and where
the legislature has fairly exercised its discretion, no court is at liberty
to review its action, and to annul the law, because in their opinion
the legislative power has been unwisely exercised. But the
legislative authority is not so entirely unlimited that, under the name
of a statute limiting the time within which a party shall resort to his
legal remedy, all remedy whatsoever may be taken away. A statute
which forbids any suit for the recovery of lands is not a statute of
limitations, but a statute to pass to adverse possessors the title of all
other claimants; and its validity cannot depend upon the name
bestowed upon it. It is of the essence of a law of limitation that it
shall afford a reasonable time within which suit may be brought; and
a statute that fails to do this cannot possibly be sustained as a law of
limitations, but would be a palpable violation of the constitutional
provision that no person shall be deprived of property without due
process of law. [Price v Hopkin, 13 Mich 318, 324-325 (1865)
(citations omitted).]
23
More recently, this Court cited Price to support this Court’s long history of
applying the discovery rule when a statute of limitations would wrongfully deprive
plaintiff of a reasonable time in which to bring a claim:23
A statute of limitation should provide plaintiffs with a
reasonable opportunity to commence suit. For over one hundred
years, this Court has sought to fulfill this purpose, construing
statutes accordingly.
* * *
Our adherence to this principle resulted in our holding that
the term “wrong,” as stated in the accrual statute, designated the date
on which the plaintiff was harmed by the defendant’s negligent act,
as opposed to the date the defendant acted negligently. Connelly v
Paul Ruddy’s Equipment Repair & Service Co, 388 Mich 146; 200
NW2d 70 (1972). Necessity dictated such a conclusion because an
opposite interpretation could potentially bar a plaintiff’s legitimate
cause of action before the plaintiff’s injury.
Similarly, because statutes of limitation do not evidence a
legislative intent to extinguish a cause of action before the plaintiff is
aware of the possible cause of action, we have adopted the discovery
rule in the appropriate instances. Last term, in Moll, supra at 13, we
held that the discovery rule controls the date a pharmaceutical
products liability action accrues. “If the three-year period of
limitation began to run at the time of the defendant’s breach, most,
if not all, claims would be barred before the plaintiff had reason to
know of the injury and the cause of the injury. Such an interpretation
seeks ‘to declare the bread stale before it is baked.’” (Citation
omitted.) The same reasoning compelled our application of the
discovery rule to products liability actions premised on asbestos
related injuries, Larson, supra. In Southgate School Dist v West
Side Construction Co, 399 Mich 72, 82; 247 NW2d 884 (1976), we
held that the discovery rule governs the date a breach of warranty
claim accrues, providing plaintiffs with an adequate opportunity to
bring suit. See also Williams v Polgar, 391 Mich 6; 215 NW2d 149
(1974) (the discovery rule governs the accrual of negligent
23
Chase v Sabin, 445 Mich 190, 195-197; 516 NW2d 60 (1994).
24
misrepresentation cases), and Dyke v Richard, 390 Mich 739; 213
NW2d 185 (1973) (the discovery rule governs the accrual of medical
malpractice cases).
The majority opinion disputes the applicability of Price, yet this Court
adopted the rationale from Price in both Moll and Chase on the basis that in each
case, where the plaintiff was not aware of the injury or its cause, the discovery
rule was appropriately invoked to permit the plaintiff to go forward on an
otherwise time-barred claim. A statute of limitations that effectively deprives a
plaintiff of the substantive right to bring an action is unreasonable.24
CONCLUSION
As a result of the majority’s conclusion that MCL 600.5827 exclusively
governs the time of accrual of plaintiff’s claims and that the discovery rule is
therefore no longer available to a plaintiff who could not reasonably have
discovered the elements of a cause of action, the majority has succeeded in
depriving plaintiff, and those similarly situated, from having their day in court.
24
Taxpayers Allied for Constitutional Taxation v Wayne Co, 450 Mich 119,
125-126; 537 NW2d 596 (1995) (“The one-year limitation is not in the class of
limitation periods that are ‘so harsh and unreasonable in their consequences that
they effectively divest plaintiffs of the access to the courts intended by the grant of
the substantive right.’ Forest v Parmalee, 402 Mich 348, 359; 262 NW2d 653
(1978), citing Buscaino v Rhodes, 385 Mich 474; 189 NW2d 202 (1971).”).
While the Taxpayers Court upheld the one-year statute of limitations at
issue, what is notable about that decision is the fact that the Court acknowledged
that when a limitations period effectively deprives a plaintiff of judicial access, it
will not be upheld. That is the very situation we face here if this Court deprives
plaintiff of the right to apply the common-law discovery rule.
25
Because I disagree with the majority’s conclusion that with the enactment
of the Revised Judicature Act, the Legislature sought to abrogate the discovery
rule, I would affirm the Court of Appeals decision applying the common-law
discovery rule and tolling the period of limitations where plaintiff could not have
reasonably discovered the elements of a wrongful death cause of action within the
limitations period.
Elizabeth A. Weaver
Michael F. Cavanagh
26
STATE OF MICHIGAN
SUPREME COURT
DAYLE TRENTADUE, as Personal
Representative of the Estate of
MARGARETTE F. EBY, Deceased,
Plaintiff-Appellee,
v No. 128579
JEFFREY GORTON, VICTOR NYBERG,
TODD MICHAEL BAKOS, MFO
MANAGEMENT COMPANY, and CARL
F. BEKOKSKE, as Personal Representative
of the Estate of RUTH R. MOTT, Deceased,
Defendants,
and
BUCKLER AUTOMATIC LAWN
SPRINKLER COMPANY, SHIRLEY
GORTON, and LAURENCE W. GORTON,
Defendants-Appellants.
DAYLE TRENTADUE, as Personal
Representative of the Estate of
MARGARETTE F. EBY, Deceased,
Plaintiff-Appellee,
v Nos. 128623, 128624, and
128625
BUCKLER AUTOMATIC LAWN
SPRINKLER COMPANY, SHIRLEY
GORTON, LAURENCE W. GORTON
JEFFREY GORTON, VITOR 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.
KELLY, J. (dissenting).
In this wrongful death action, the majority frames the issue as whether the
common-law discovery rule tolls the statutory period of limitations or whether
MCL 600.5827 alone governs when plaintiff’s claims accrued. It concludes that
MCL 600.5827 alone controls.
I strongly disagree with this decision for three reasons. First, MCL
600.5827 does not apply to this case. Second, even if it did apply, the majority
commits a tragic mistake by abandoning Michigan’s decades-old common-law
discovery rule. Third, even accepting the majority’s decision to abolish the
discovery rule from now on, this particular plaintiff should be allowed to claim the
benefits of the rule. Accordingly, I respectfully dissent.
FACTS
This case arises from the murder of Mrs. Margarette Eby. From 1981 to
1986, she rented the gatehouse on the Mott Estate (Applewood) where she was
found dead on November 9, 1986.
2
During that five-year period, Mrs. Eby experienced occasional break-ins at
the gatehouse and complained about them to Ruth Mott. Ruth Mott was Mrs.
Eby’s landlord. She also lived at Applewood. Mrs. Mott’s affairs were handled
by the MFO (Mott Family Office) Management Company, which acted on her
behalf in virtually every aspect of her business and personal life, including
Applewood. The responses that Mrs. Eby received from letters written to Mrs.
Mott in 1986 regarding break-ins at the gatehouse was typified by the following:
While Mrs. Mott regrets the occurrence of last Wednesday
night, it seems apparent that no system would have prevented your
loss when the keys to make the system effective were left in your
unlocked car in front of the house. Further, when you leave the gate
open frequently and fail to provide visual security through drags,
curtains or blinds, unnecessary temptation to unwelcome intruders is
evident.
On November 7, 1986, Mrs. Eby attended a dinner party with three friends.
Two of them accompanied her home, arriving at Applewood sometime after 11:00
p.m. Mrs. Eby’s companions observed her attempt to unlock the front door.
When she was unable to do so, she asked her friends to walk her to the side door.
She was able to open the side door and her companions saw her lock the door
before they left.
Two days later, the gatehouse door was found open. What was discovered
inside has been described by the Flint Police Department officers who arrived at
the scene as perhaps the most gruesome murder scene they had ever encountered.
Mrs. Eby’s body was found in her upstairs bedroom. She had been attacked,
raped, and knifed to death.
3
The physical evidence provided little of value. Besides a partial fingerprint
on a bathroom faucet, the police uncovered virtually nothing to link the crime to a
particular individual. As a result, it appears that the Flint Police Department
pursued the only theory that seemed to suit the murder scene, that Mrs. Eby
voluntarily allowed the killer into her home. However, because Mrs. Eby had not
been killed by an acquaintance, this theory proved fruitless. It is unclear why the
police never considered that a complete stranger might have been Mrs. Eby’s
killer.
What no one knew at the time was that the MFO had given the killer,
Jeffrey Gorton, access to the common area beneath Mrs. Eby’s home. Gorton was
a lawn service employee of Buckler Automatic Lawn Sprinkler Company
(Buckler). Two days before Mrs. Eby was raped and murdered, Gorton arrived at
Applewood to perform sprinkler winterization. The MFO supervised the process
and gave Gorton unsupervised access to the gatehouse basement. It is believed
that, while in the house, Gorton unlocked an entry point that allowed him to
reenter the building on the night of the murder.
Gorton was first identified as a suspect when, about 16 years later, Mrs.
Eby’s son recognized the similarities between his mother’s murder and the murder
of Northwest Airlines flight attendant Nancy Ludwig. Alerted to the similarities,
the police eventually conducted deoxyribonucleic acid (DNA) testing on evidence
collected from both victims. It showed that the same man killed both women. The
fingerprint found on the faucet was also reexamined, and more sophisticated
4
fingerprint techniques revealed that it belonged to Jeffrey Gorton, who was then
living in Florida. A police surveillance operation resulted in gathering a DNA
sample from Gorton that matched the samples retrieved from both victims.
On February 8, 2002, Jeffrey Gorton was arrested and charged with murder.
On January 6, 2003, he pleaded no contest to a charge of murdering Mrs. Eby
more than 16 years earlier. He is currently serving a life sentence for the crime.
On August 2, 2002, Mrs. Eby’s estate filed a wrongful death complaint
against Mrs. Mott’s estate (Mrs. Mott died in 1999), the MFO, MFO employees
Todd Bakos and Victor Nyberg, Buckler, Jeffrey Gorton, and Gorton’s parents,
Shirley and Laurence Gorton, who owned and operated Buckler. In the complaint,
plaintiff alleged that (1) Jeffrey Gorton killed plaintiff’s decedent, (2) Mrs. Mott,
the MFO, Bakos, and Nyberg gave Jeffrey Gorton unsupervised access to the
decedent’s home, (3) Mott and the MFO were responsible on a respondeat
superior theory for the negligence of Bakos and Nyberg, (4) Mrs. Mott and the
MFO had a duty but failed to provide adequate security for the residence despite
the decedent’s repeated requests for it and notice of prior criminal activity at the
site, (5) Buckler and Shirley and Laurence Gorton breached their duty to conduct
adequate employment investigations to determine if prospective employees
presented any danger, (6) Shirley and Laurence Gorton failed to supervise Jeffrey
when they knew or should have known he was a threat, (7) and Shirley and
Laurence Gorton had respondeat superior liability because they put Jeffrey in a
position to rape and kill the decedent.
5
Each defendant, except Jeffrey Gorton, filed a motion for summary
disposition, arguing that the claims were barred by the statute of limitations.
Genesee Circuit Judge Robert M. Ranson ruled on the motions on October 28,
2003. With the exception of the claim against the MFO and Mrs. Mott’s estate
that were premised on a generalized duty to keep Mrs. Eby safe, the motions were
denied. The trial court ruled that, because plaintiff did not know who killed Mrs.
Eby before 2002, plaintiff did not know that someone had breached a duty.
Hence, plaintiff lacked knowledge of the causation component of the claims until
2002.
The Court of Appeals granted defendants’ applications for leave to appeal.
In a unanimous, published opinion, the Court affirmed the part of the trial court’s
decision that denied defendants’ motions for summary disposition. But it reversed
the part that granted summary disposition to the MFO and Mrs. Mott’s estate on
the claim alleging failure to provide adequate security. Trentadue v Buckler
Automatic Lawn Sprinkler Co, 266 Mich App 297, 299; 701 NW2d 756 (2005).
The panel found that the common-law discovery rule tolled the statute of
limitations with respect to all the claims. It ruled that plaintiff could not have been
aware of a possible cause of action against defendants until Jeffrey Gorton was
identified as the killer. Id. at 303-305.
This Court granted defendants’ application for leave to appeal, directing the
parties “to include among the issues to be briefed whether the Court of Appeals
application of a common-law discovery rule to determine when plaintiff’s claims
6
accrued is inconsistent with or contravenes MCL 600.5827, and whether previous
decisions of this Court, which have recognized and applied such a rule when MCL
600.5827 would otherwise control, should be overruled.” 475 Mich 906 (2006).
STANDARD OF REVIEW
In the absence of disputed facts, whether a cause of action is barred by a
statute of limitations is a question of law that we review de novo. Boyle v Gen
Motors Corp, 468 Mich 226, 229-230; 661 NW2d 557 (2003). We also review de
novo a trial court’s decision on a motion for summary disposition. Ostroth v
Warren Regency, GP, LLC, 474 Mich 36, 40; 709 NW2d 589 (2006).
MCL 600.5827 DOES NOT APPLY TO PLAINTIFF’S CLAIMS
This Court asked the parties to answer whether the common-law discovery
rule conflicts with MCL 600.5827 and, if so, whether decisions of this Court
recognizing the rule should be overruled. MCL 600.5827 is Michigan’s accrual
statute. It states:
Except as otherwise expressly provided, the period of
limitations runs from the time the claim accrues. The claim accrues
at the time provided in sections 5829 to 5838, and in cases not
covered by these sections the claim accrues at the time the wrong
upon which the claim is based was done regardless of the time when
damage results.
In deciding that the common-law discovery rule conflicts with § 5827, a
majority of this Court errs by deciding that § 5827 applies to plaintiff’s claims.
Because I find that § 5827 is not implicated by this case, I conclude that this Court
7
overreaches and unnecessarily decides that the common-law discovery rule is
inapplicable when § 5827 applies.
All tort causes of action are governed by a statute of limitations. MCL
600.5805 is the statute that governs personal injury actions. The specific
subsection that applies to plaintiff’s claims is MCL 600.5805(10). It provides:
The period of limitations is 3 years after the time of the death
or injury for all other actions to recover damages for the death of a
person, or for injury to a person or property.
Subsection 10 differs from the other subsections of § 5805. The other
subsections provide a specific period during which a case must be filed. But they
do not provide an accrual period.1 When these subsections apply, § 5827
determines when the limitations period begins to run. Unlike these subsections,
subsection 10 provides not only a specific period for filing (within 3 years), it
provides when the action accrues (the time of death or injury).
Given that § 5805(10) contains its own accrual provision, whenever
§ 5805(10) is applicable, one need not consider § 5827. Indeed, § 5827 states that
its accrual provision is to be applied “[e]xcept as otherwise expressly provided.”
When § 5805(10) controls, the accrual of the limitations period is “otherwise
expressly provided.” Hence, because § 5827 does not apply, it is unnecessary for
1
Examples of these other subsections illustrate this point: § 5805(2)
specifies only that “[t]he period of limitations is 2 years for an action charging
assault, battery, or false imprisonment.” Similarly, § 5805(5) provides that “the
period of limitations is 2 years for an action charging malicious prosecution.”
8
this Court to address whether the discovery rule is applicable when § 5827 applies,
and this Court overreaches by answering that question.2
THIS COURT SHOULD NOT OVERRULE ITS OWN PRIOR DECISIONS RECOGNIZING
THE COMMON-LAW DISCOVERY RULE
As demonstrated earlier in this opinion, MCL 600.5827 does not apply to
plaintiff’s claims. But, if it did, the issue would be whether the common-law
discovery rule saves plaintiff’s claims from the running of the statutory period of
limitations or whether § 5827 alone determines when plaintiff’s claims accrued.
The majority has decided that plaintiff’s claims cannot be saved by the common-
law discovery rule and has overruled the prior decisions of this Court that
recognized the rule. In so doing, it has wiped out caselaw with a foundation
2
The majority recognizes that MCL 600.5805(10) provides both the
specific statutory period of limitations and the date when that period begins to run.
It follows that the majority also implicitly recognizes that MCL 600.5827 has no
application to this case. Yet, it proceeds to decide the case as if MCL 600.5827
applies. Of course, this makes it possible to use this case to decide whether the
common-law discovery rule conflicts with MCL 600.5827. Reaching out to
decide an issue that need not be decided is generally considered a form of judicial
activism.
Apparently, the majority deems it appropriate to decide whether the
discovery rule can save a claim when MCL 600.5827 otherwise applies because
the result would be the same under MCL 600.5827 and MCL 600.5805(10).
Regardless of whether this is true, it is well established that a court should only
decide issues that are necessary to resolve the case at hand. Because MCL
600.5827 does not apply, the case should not be decided as if it did, regardless of
whether the same result would apply under either MCL 600.5827 or MCL
600.5805(10). The more prudent course would be to decide this case under MCL
600.5805(10). The Court should wait for a case implicating MCL 600.5827 to
decide whether the discovery rule can save a plaintiff’s claims from the running of
the period of limitations when § 5827 would otherwise apply.
9
stretching back well over 100 years.3 Yet, each of the factors articulated in
Robinson v Detroit4 for deciding when it is appropriate to overrule the precedent
of this Court counsel in favor set by retaining those decisions.5
3
See the discussion of this Court’s recognition of the fundamental right of
access to the courts on pages 15-16 of this dissent.
4
462 Mich 439; 613 NW2d 307 (2002).
5
The four justices who are in the majority in this case were also in the
majority in Robinson. Looking back, one must question the majority’s statement
in Robinson that stare decisis is generally “‘the preferred course.’” Id. at 463
(citation omitted). This majority has never relied on the doctrine to uphold a prior
decision of this Court.
The majority attempts to turn the argument around and questions “whether
[my] ongoing criticism truly concerns [my] attitude[] toward precedent or merely
[my] attitude[] towards specific previous decisions of the Court.” Ante at 16 n 16.
In support of this allegation, the majority cites its own opinion in People v Smith,
478 Mich 292; 733 NW2d 351 (2007), and my opinion in Haynes v Neshewat, 477
Mich 29; 729 NW2d 488 (2007). My opinions in these cases are easily
distinguishable from a decision like the majority’s that eradicates a rule with a
foundation stretching back well over 100 years. In Smith, the majority overruled
People v Robideau, 419 Mich 458; 355 NW2d 592 (1984). I preferred to retain
Robideau. My position in Smith does not support a claim that I do not respect
precedent. And in Haynes, I wrote the unanimous majority opinion. The opinion
carefully considered the Robinson factors and concluded that no factor counseled
against overruling our decision in Kassab v Michigan Basic Prop Ins Ass’n, 441
Mich 433; 491 NW2d 545 (1992). Kassab interpreted the Civil Rights Act to
allow discriminatory behavior. We decided that it would be inappropriate to retain
an erroneous interpretation of an act meant to protect against discrimination, solely
because some individuals may rely on the decision to discriminate. Every member
of the Court agreed.
Rather than look to Smith and Haynes, the majority would do better to look
to my recent opinions in Liss v Lewiston-Richards, Inc, 478 Mich 203; 732 NW2d
514 (2007), Rohde v Ann Arbor Pub Schools, 479 Mich ___; ___ NW2d ___
(Docket No. 128768, decided July 25, 2007), and Michigan Citizens for Water
Conservation v Nestlé Waters of America, Inc, 479 Mich ___; ___ NW2d ___
(Docket No. 130802, decided July 25, 2007).
(continued…)
10
THE ROBINSON FACTORS
The Robinson factors are used to determine when it is appropriate to
overrule the precedent of this Court. The first is whether the earlier decision was
wrongly decided. Id. at 464. Finding that an earlier decision was wrongly decided
is not the end of the inquiry, however. Id. at 465. The Court must also weigh the
effects of overruling the decision. Id. at 466. This consideration involves a
review of whether the decision “defies ‘practical workability,’ whether reliance
interests would work an undue hardship, and whether changes in the law or facts
no longer justify the questioned decision.” Id. at 464.
(…continued)
In Liss I stated, “[G]iven the language and purpose of the [Michigan
Consumer Protection Act, MCL 445.901 et seq.], I believe that this Court
interpreted the exemption correctly in [Attorney General v] Diamond Mortgage
[414 Mich 603; 327 NW2d 805 (1982)] and incorrectly in Smith [v Globe Life Ins
Co, 460 Mich 446; 597 NW2d 28 (1999)]. Even so, because I do not think the
compelling interests necessary to overrule a prior decision of this Court are
present, I do not advocate overruling Smith.” Liss, 478 Mich at 226 (Kelly, J.,
dissenting). In Rohde, I stated “I recognize with regret that this Court’s decisions
in Lee [v Macomb Co Bd of Comm’rs, 464 Mich 726; 629 NW2d 900 (2004)] and
Nat’l Wildlife Federation [v Cleveland Cliffs Iron Co, 471 Mich 608; 684 NW2d
800 (2004)] now constitute binding precedent.” Rohde, 479 Mich at ___ (Kelly,
J., dissenting). And in Nestlé, I wrote “Justice Weaver reaches the opposite
conclusion. In so doing, she rejects the standing test adopted by the majority. . . .
While I agree with Justice Weaver’s conclusion and her analysis of these
decisions, I also recognize that Lee and Nat’l Wildlife Federation now constitute
binding precedent of this Court.” Nestlé, 479 Mich at ___ (Kelly, J. dissenting).
Hence, even though I did not agree with the precedent in these cases, I said
nothing about overruling it. The majority cannot point to a single case where,
having expressed its disagreement with precedent, it has not overruled it or
signaled its intent to overrule it.
11
The first question, therefore, is whether this Court’s prior decisions
recognizing the common-law discovery rule were wrongly decided. The majority
claims that the language of MCL 600.5827 indicates that the Legislature did not
intend to allow plaintiffs to claim the benefit of the common-law discovery rule
when § 5827 applies. I disagree. The majority erroneously ignores deliberate
actions of the Legislature that have recognized and ratified prior decisions of this
Court applying the common-law discovery rule. These actions signify the
Legislature’s approval of the rule.
The common-law discovery rule has been a part of Michigan limitations
law for many years and has been applied in a variety of contexts.6 And after this
Court recognized the discovery rule, the Michigan Legislature twice passed
statutes that expressly limit the operation of the rule.
MCL 600.5838 and MCL 600.5838a describe how the limitations period
operates in professional negligence cases. The Legislature added language to
both of these statutes specifying that the period of limitations applies “regardless
of the time the plaintiff discovers or otherwise has knowledge of the claim.” This
demonstrates that the Legislature recognizes the discovery rule and is aware of
6
See, e.g., Johnson v Caldwell, 371 Mich 368; 123 NW2d 785 (1963) (rule
applied in medical malpractice cases); Williams v Polgar, 391 Mich 6; 215 NW2d
149 (1974) (rule applied in negligent misrepresentation cases); Larson v Johns-
Manville Sales Corp, 427 Mich 301; 399 NW2d 1 (1986) (rule applied in products
liability cases); Moll v Abbott Laboratories, 444 Mich 1; 506 NW2d 816 (1993)
(rule applied in pharmaceutical products liability cases).
12
what it needs to do to prevent the rule from applying in particular cases.
Therefore, MCL 600.5838 and MCL 600.5838a are important because they
demonstrate that the Legislature has limited the discovery rule where it saw fit.
More importantly § 5838 and § 5838a represent legislative acceptance of
the discovery rule. By specifically limiting the discovery rule in professional
negligence cases, the Legislature has implicitly acknowledged the applicability of
the rule in other types of cases. As a result, in professional negligence cases, a
plaintiff may no longer claim the benefit of the common-law discovery rule. But,
the Legislature has not prohibited application of the rule outside the areas
addressed in § 5838 and § 5838a.7
7
The majority claims that there is no “reason to equate the Legislature’s
‘approval of the rule’—by its codification of some of this Court’s uses of the
rule—with the Legislature’s approval of every application of the rule.” Ante at 17.
Yet, the well-established maxim of expressio unius est exclusio alterius, which
this majority has often invoked in deciding cases, states that the Legislature’s
mention of one thing implies the exclusion of all others. E.g., Miller v Chapman
Contracting, 477 Mich 102; 730 NW2d 462 (2007); Pittsfield Charter Twp v
Washtenaw Co, 468 Mich 702, 712; 664 NW2d 193 (2003). By expressly
providing that the discovery rule does not apply in professional negligence cases,
the Legislature implied that it was to apply in all other contexts.
The majority implies that MCL 600.5838 and MCL 600.5838a support its
position. In both of these statutes, the Legislature specifically limited the
operation of the common-law discovery rule by providing that the period of
limitations described in these sections applies “regardless of the time the plaintiff
discovers or otherwise has knowledge of the claim.” The only possible reason the
Legislature would have included this language is to take professional negligence
claims outside the scope of the common-law discovery rule. But, as a result of the
majority’s decision, this language is reduced to a redundancy. When a “plaintiff
discovers or otherwise has knowledge of the claim” is completely irrelevant if
there is no common-law discovery rule. The majority has decided that the
(continued…)
13
Given that the actions of the Legislature strongly suggest its approval of
most of this Court’s prior decisions recognizing the common-law discovery rule,
the rule should not be discarded. However, even if one believes that earlier cases
applying the rule were wrongly decided, it does not follow that these cases must
be overruled. Robinson, 462 Mich at 465. Rather, stare decisis is generally “the
preferred course because it promotes the evenhanded, predictable, and consistent
development of legal principles, fosters reliance on judicial decisions, and
contributes to the actual and perceived integrity of the judicial process.” Id. at 463
(citation omitted).
Before jettisoning precedent, this Court must determine “whether
overruling such decision would work an undue hardship because of reliance
interests or expectations that have arisen.” Robertson v DaimlerChrysler Corp,
465 Mich 732, 757; 641 NW2d 567 (2002). In assessing these reliance interests,
“the Court must ask whether the previous decision has become so embedded, so
accepted, so fundamental, to everyone’s expectations that to change it would
(…continued)
Legislature wrote this language in order to remove professional negligence claims
from the scope of a rule that the Legislature never recognized as existing.
The majority claims that MCL 600.5838(2) undercuts my position because
that section provides a statutory discovery period. The Legislature’s decision to
provide a statutory discovery period does nothing to weaken my position.
Through MCL 600.5838(1), the Legislature took professional negligence claims
outside the scope of the common-law discovery rule. It was entirely consistent
for the Legislature to provide a statutory discovery period. In so doing, it took
(continued…)
14
produce not just readjustments, but practical real-world dislocations.” Robinson,
462 Mich at 466. The common-law discovery rule has become so embedded in
the fabric of Michigan limitations law that the state’s jurisprudence will be
seriously damaged by destroying it.
This Court has recognized a fundamental right of access to courts for a
great many years. As it stated in 1877, “[e]very man is entitled to his day in court
before his rights can be finally disposed of, and even the Legislature could not
deprive him of the right.” Ehlers v Stoeckle, 37 Mich 260, 262-263 (1877). The
genesis of Michigan’s common-law discovery rule goes back even further and can
be traced to Justice Cooley over 140 years ago:
The general power of the legislature to pass statutes of
limitation is not doubted. The time that these statutes shall allow for
bringing suits is to be fixed by the legislative judgment, and where
the legislature has fairly exercised its discretion, no court is at liberty
to review its action, and to annul the law, because in their opinion
the legislative power has been unwisely exercised. But the
legislative authority is not so entirely unlimited that, under the name
of a statute limiting the time within which a party shall resort to his
legal remedy; all remedy whatsoever may be taken away. . . . It is of
the essence of a law of limitation that it shall afford a reasonable
time within which suit may be brought. [Price v Hopkin, 13 Mich
318, 324 (1865).]
The discovery rule, based on principles of fundamental fairness, “‘was formulated
to avoid the harsh results produced by commencing the running of the statute of
(…continued)
some of the sting out of removing professional negligence claims from the scope
of the common-law rule.
15
limitations before a claimant was aware of any basis for an action.’” Stephens v
Dixon, 449 Mich 531, 535; 536 NW2d 755 (1995) (citation omitted).
Elimination of the common-law discovery rule will have a drastic, adverse
effect on plaintiffs’ rights in Michigan. Cutting off plaintiffs’ actions before
plaintiffs even know they have a cause of action is the very definition of a
“practical real-world dislocation.” And people will lose confidence in the courts
when they learn that the courts deny them compensation for their injuries simply
because it took too long to discover their causes.
Aside from the real-world dislocation created by abolishing the common-
law discovery rule, there are other factors to consider in determining whether to
overrule the prior decisions of this Court. They include whether the decisions defy
practical workability and whether changes in the law or the facts no longer justify
the questioned precedents. Robinson, 462 Mich at 464. It has not been shown that
the discovery rule is unworkable. To the contrary, the near universal acceptance
of this rule around the country is a strong indication of its workability.8 And no
8
In addition to Michigan, 35 states plus the District of Columbia have
embraced the discovery rule. See, e.g., Alaska: Hanebuth v Bell Helicopter Int’l,
694 P2d 143 (Alas, 1984). Arkansas: State v Diamond Lakes Oil Co, 347 Ark
618; 66 SW3d 613 (2002). California: Norgart v Upjohn Co, 21 Cal 4th 383; 981
P2d 79; 87 Cal Rptr 2d 453 (1999). Colorado: Rauschenberger v Radetsky, 745
P2d 640 (Colo, 1987). Connecticut: Champagne v Raybestos-Manhattan, Inc, 212
Conn 509; 562 A2d 1100 (1989). Delaware: In re: Asbestos Litigation, West Trial
Group, 622 A2d 1090 (Del Super Ct, 1992). Florida: Johnson v Szymanski, 368
So 2d 370 (Fla, 1979). Georgia: King v Seitzingers, Inc, 160 Ga App 318; 287
SE2d 252 (1981). Hawaii: Yoshizaki v Hilo Hosp, 50 Hawaii 150; 433 P2d 220
(1967). Indiana: Wehling v Citizens Nat’l Bank, 586 NE2d 840 (Ind, 1992). Iowa:
(continued…)
16
facts or law have changed to call into question those cases recognizing the
discovery rule. Indeed, the Legislature’s decision to abolish the rule solely in the
context of professional negligence cases indicates its approval of this Court’s
decisions that have applied the rule in other contexts.
It is the majority’s decision to abolish the common-law discovery rule that
threatens to defy practical workability by leading to absurd results and
constitutional violations. This Court has held that “[s]tatutes should be construed
(…continued)
Roycroft v Hammons, 203 F Supp 2d 1053 (SD Iowa, 2002). Louisiana: Harvey v
Dixie Graphics, Inc, 593 So 2d 351 (La, 1992). Maine: Johnston v Dow &
Coulombe, Inc, 686 A2d 1064 (Me, 1996). Maryland: Georgia-Pacific Corp v
Benjamin, 394 Md 59; 904 A2d 511 (2006). Minnesota: Johnson v Winthrop
Laboratories Div of Sterling Drug, Inc, 291 Minn 145; 190 NW2d 77 (1971).
Mississippi: Sweeney v Preston, 642 So 2d 332 (Miss, 1994). Nebraska: Condon v
AH Robins Co, 217 Neb 60; 349 NW2d 622 (1984). Nevada: Siragusa v Brown,
114 Nev 1384; 971 P2d 801 (1998). New Hampshire: Big League Entertainment,
Inc v Brox Industries, 149 NH 480; 821 A2d 1054 (2003). New Jersey: Mancuso
v Mancuso, 209 NJ Super 51; 506 A2d 1253 (1986). New Mexico: McNeil v Rice
Engineering & Operating Inc, 139 NM 48; 128 P3d 476 (NM App, 2005). North
Dakota: Wells v First American Bank West, 1999 ND 170; 598 NW2d 834 (1999).
Ohio: Collins v Sotka, 81 Ohio St 3d 506, 692 NE2d 581 (1998). Oklahoma:
Resolution Trust Corp v Grant, 1995 Okla 68; 901 P2d 807 (1995). Rhode Island:
Wilkinson v Harrington, 104 RI 224; 243 A2d 745 (1968). South Carolina: Gattis
v Chavez, 413 F Supp 33 (D SC, 1976). Tennessee: Hathaway v Middle
Tennessee Anesthesiology, PC, 724 SW2d 355 (Tenn App, 1986). Texas:
McDade v Texas Commerce Bank, Nat’l Ass’n, 822 SW2d 713 (Tex App, 1991).
Utah: Klinger v Kightly, 791 P2d 868 (Utah, 1990). Vermont: Leo v Hillman, 164
Vt 94; 665 A2d 572 (1995). Virginia: Locke v Johns-Manville Corp, 221 Va 951;
665 A2d 572 (1981). Washington: White v Johns-Manville Corp, 103 Wash 2d
344; 693 P2d 687 (1985). West Virginia: Gaither v City Hosp, 199 W Va 706;
487 SE2d 90 (1997). Wisconsin: Hansen v A H Robins Co, Inc, 113 Wis 2d 550;
335 NW2d 578 (1983). Wyoming: Olson v A H Robins Co, Inc, 696 P2d 1294
(Wyo, 1985). District of Columbia: Burke v Washington Hosp Ctr, 293 F Supp
1328 (D DC, 1968).
17
so as to prevent absurd results, injustice or prejudice to the public interest.”
McAuley v Gen Motors Corp, 457 Mich 513, 518; 578 NW2d 282 (1998). See
also Cameron v Auto Club Ins Ass’n, 476 Mich 55; 718 NW2d 784 (2006).
Without the discovery rule, plaintiffs will lose the right to pursue certain causes of
action before they have or could have had knowledge of them. The plaintiff in this
case falls within that group.
Moreover, given this Court’s decision in Henry v Dow Chemical Co,9 the
very real possibility exists that there will be cases in which a plaintiff will never be
able to file suit. In Henry, this Court held that a plaintiff can pursue a tort claim
only if he or she has suffered a present injury. Id. at 74. Because there will be
cases in which a person’s injury will not be manifested for a prolonged time, there
will be cases where no cause of action can ever be pursued. These are cases where
a person’s injury does not manifest itself until the established limitations period
has expired. The absurdity of a system that deprives someone of his or her cause
of action before it can be instituted is manifest. As Judge Jerome Frank stated:
Except in topsy-turvy land you can’t die before you are
conceived, or be divorced before ever you marry, or harvest a crop
never planted, or burn down a house never built, or miss a train
running on a non-existent railroad. For substantially similar reasons,
it has always heretofore been accepted, as a sort of legal “axiom,”
that a statute of limitations does not begin to run against a cause of
action before that cause of action exists, i.e., before a judicial
remedy is available to the plaintiff. For a limitations statute, by its
inherent nature, bars a cause of action solely because suit was not
9
473 Mich 63; 701 NW2d 684 (2005).
18
brought to assert it during a period when the suit, if begun in that
period, could have been successfully maintained; the plaintiff, in
such a case, loses for the sole reason that he delayed—beyond the
time fixed by the statute—commencing his suit which, but for the
delay, he would have won. [Dincher v Marlin Firearms Co, 198
F2d 821, 823 (CA 2, 1952) (Frank, J., dissenting).]
Today’s decision to abolish the discovery rule also raises constitutional
questions regarding the extent of the Legislature’s authority to enact statutes of
limitations. The Legislature can, if it chooses, completely eliminate common-law
causes of action.10 But the enactment of a statute of limitations implicates other
considerations. The purpose of a limitations statute is to “penalize plaintiffs who
have not been industrious in pursing their claims,”11 not to eliminate a valid cause
of action when the plaintiff is without fault. Lemmerman v Fealk, 449 Mich 56,
65-66; 534 NW2d 695 (1995). For this reason, this Court has repeatedly held that
a limitations period that does not provide a reasonable period in which to file suit
is constitutionally suspect. See, e.g., Krone v Krone, 37 Mich 308 (1877); Dyke v
Richard, 390 Mich 739; 213 NW2d 185 (1973).
In Dyke, this Court prohibited a statute of limitations from extinguishing a
right to bring suit before reasonable discovery of the cause of action was possible.
The Court explained:
Since “[i]t is of the essence of a law of limitation that it shall
afford a reasonable time within which suit may be brought . . .”,
10
Bean v McFarland, 280 Mich 19, 21; 273 NW 332 (1937).
11
Lothian v Detroit, 414 Mich 160, 166-167; 324 NW2d 9 (1982).
19
Price, supra, a statute which extinguishes the right to bring suit
cannot be enforced as a law of limitation. As to a person who does
not know, or in the exercise of reasonable diligence could not
ascertain within the two year period that he has a cause of action,
this statute has the effect of abolishing his right to bring suit.
Such a statute, if sustainable at all could be enforced only as
one intended to abolish a common law cause of action. But this
statute does not purport to do this, is not asserted to do so, and we
cannot ascribe any legislative intention to accomplish that end. We
read it as a statute of limitation which applies in every case except
where the plaintiff does not know of his cause of action. [Dyke, 390
Mich at 746-747.]
And this Court has also held that a limitations provision that does not afford
a reasonable time to file suit cannot be constitutionally upheld, because it prevents
access to the courts. Forest v Parmalee12 held that “statutes of limitations are to
be upheld by courts unless it can be demonstrated that they are so harsh and
unreasonable in their consequences that they effectively divest plaintiffs of the
access to the courts intended by the grant of the substantive right.”
In certain circumstances, the common-law discovery rule is necessary to
ensure that plaintiffs have had a reasonable time to gain knowledge of their causes
of action. By abrogating this rule, the majority decision raises serious
constitutional questions. These constitutional concerns counsel in favor of
retaining the discovery rule.
This Court, like most, has long recognized the value of stare decisis. Its
decisions applying the common-law discovery rule should be upheld under that
12
402 Mich 348, 359; 262 NW2d 653 (1978).
20
doctrine because (1) the decisions recognizing the rule were correctly decided, (2)
a change in the discovery rule would have a drastic effect on plaintiffs’ rights, (3)
the discovery rule is workable, and (4) abolishing the rule will lead to
constitutional violations as well as absurd and unjust results.
MCL 600.5869 REQUIRES APPLICATION OF THE COMMON-LAW
DISCOVERY RULE TO PLAINTIFF’S CLAIMS
A majority of this Court decides that the common-law discovery rule is
inapplicable when MCL 600.5827 applies. I strongly disagree with this decision.
But, even accepting it, the Court need not reverse the Court of Appeals decision in
this case.
MCL 600.5869 provides:
All actions and rights shall be governed and determined
according to the law under which the right accrued, in respect to the
limitations of such actions or right of entry.
The majority finds that “plaintiff’s claims accrued at the time of Eby’s
death.” Ante at 30. Mrs. Eby was murdered in 1986. At that time, this Court
recognized the common-law discovery rule. Thus, as of 1986, the law in this state
was that the cause of action did not accrue until “all of the elements of the cause of
action have occurred and can be alleged in a proper complaint.” Connelly v Paul
Ruddy’s Equip Repair, 388 Mich 146, 150; 200 NW2d 70 (1970). It follows that,
although some future plaintiffs may not be able to claim the benefit of the
21
common-law discovery rule, this plaintiff can. For this reason, the majority need
not reverse the decision of the Court of Appeals.13
APPLICATION OF THE COMMON-LAW DISCOVERY
RULE TO THE FACTS OF THE CASE
Under the common-law discovery rule, a claim accrues when, on the basis
of objective facts, a plaintiff can allege each element of the asserted claim. Moll v
Abbott Laboratories, 444 Mich 1, 15-16; 506 NW2d 816 (1993). A claim for
personal injury must allege that (1) the defendant owed the plaintiff a legal duty,
(2) the defendant breached the duty, (3) the defendant’s breach was the proximate
13
The majority claims that § 5869 cannot save plaintiff’s claim because the
statutory law has not changed since 1986. This fact is irrelevant. Section 5869
states that “[a]ll actions and rights shall be governed and determined according to
the law under which the right accrued . . . .” This section is not confined to
statutory provisions. Rather, § 5869 includes all law. It is well established that
the law includes the common law. E.g., People v Blume, 443 Mich 476, 480 n 7,
505 NW2d 843 (1993); Myers v Genesee Co Auditor, 375 Mich 1, 7; 133 NW2d
190 (1965); Const 1963, art 3, § 7. Because it is clear that this Court recognized a
common-law discovery rule in 1986, § 5869 requires that the discovery rule be
applied to plaintiff’s case. And because § 5869 requires application of the
discovery rule, the majority’s discussion about retroactive versus prospective
application of decisions by this Court is misplaced.
The majority also claims that I present no authority or explanation for why
the discovery rule is applicable. Ante at 22. In fact, I have made such a
presentation. I will recap it here: MCL 600.5869 states that all actions shall be
governed by the law as it existed when the claim accrued. The majority asserts
that the claim in this case accrued in 1986. In 1986, this Court recognized the
common-law discovery rule. Therefore, the discovery rule was the law of the land
at the time the claim accrued. Accordingly, § 5869 requires us to apply the
common-law discovery rule to plaintiff’s claim. As I think is obvious, the
authority I cite as requiring application of the discovery rule is § 5869.
22
cause of the plaintiff’s injuries, and (4) the plaintiff suffered damages. Chase v
Sabin, 445 Mich 190, 201 n 15; 516 NW2d 60 (1994).
Here, it was not until after Jeffrey Gorton was arrested that plaintiff found
out that Mrs. Eby’s killer was a stranger. Plaintiff could not have alleged a breach
of duty against any of the defendants before knowing that a stranger, Gorton, had
killed Mrs. Eby. Therefore, it was not until Gorton was identified as the killer that
the statute of limitations began to run. Because plaintiff filed suit within three
years of Gorton’s identification as the killer, plaintiff’s claims are timely.14
CONCLUSION
With today’s decision, the majority throws Michigan into topsy-turvy land,
where a person’s legal claim dies before it is born. The majority finds that
plaintiff’s tort cause of action disappeared before plaintiff could discover the
tortfeasor. As a result, the judgment of the Court of Appeals has been reversed.
I disagree with this decision on numerous grounds. MCL 600.5827 does
not apply here. Moreover, it is a grievous error to overrule the precedent of this
Court that recognizes the common-law discovery rule. The Legislature has
signaled its approval of this precedent and indicated that the rule should apply in
all cases except those alleging professional negligence. The judgment of the Court
of Appeals should be affirmed and the discovery rule should remain untouched.
14
MCL 600.5805(10) provides the applicable period of limitations for
plaintiff’s claim. That period is three years.
23
But, even if the discovery rule has no application in the future, this particular
plaintiff should be allowed to claim the benefits of the rule. For these reasons, I
dissent.
Marilyn Kelly
24