MATT WARD V JOHN C SIANO JR MD
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STATE OF MICHIGAN
COURT OF APPEALS
MATT WARD, Personal Representative of the
Estate of HOWARD WARD,
FOR PUBLICATION
November 14, 2006
9:10 a.m.
Plaintiff-Appellant,
v
JOHN C. SIANO, JR., LANSING INTERNAL
MEDICINE ASSOCIATES, P.C., and EDWARD
W. SPARROW HOSPITAL ASSOCIATION,
Defendants-Appellees.
No. 265599
Ingham Circuit Court
LC No. 03-001864-NH
Official Reported Version
Before: Sawyer, P.J., and O'Connell, Saad, Wilder, Zahra, Owens, and Fort Hood, JJ.
O'CONNELL, J. (concurring).
I concur with the majority's conclusion that Mazumder v Univ of Michigan Regents, 270
Mich App 42; 715 NW2d 96 (2006), inaptly applied judicial estoppel to alleviate the undesirable
retroactive effects1 of Waltz v Wyse, 469 Mich 642; 677 NW2d 813 (2004). I write separately to
ask the Supreme Court to grant leave and issue a full and final opinion (rather than a remand
order) regarding the propriety of prospective or retroactive application of Waltz.
I. The Issue
Unfortunately, much of the commotion created by Waltz has focused on one of two
questions: whether MCL 600.5852 is a statute of limitations or a saving provision, and whether
Waltz's classification of § 5852 as a saving provision was an issue of first impression. The
1
I disagree with the practice of applying Waltz retroactively, but I do agree with the majority
opinion that the procedural device employed by the original panel in this case was incorrect.
Waltz should be limited to prospective application because it drew new legal distinctions and
applied them in novel ways. However, reaching this result through piecemeal application of
equitable principles impermissibly allows individual exceptions to swallow the rule. Judicial
tolling is an ill-fitted and ultimately counterproductive patch for a hole that can only be
adequately plugged by the wholesale, uniform limitation of Waltz's holding.
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problem with these issues is that § 5852 indisputably qualifies as a saving provision, and its
designation as such was not a new pronouncement. These issues were both resolved by the
Supreme Court's holding in Miller v Mercy Memorial Hosp, 466 Mich 196, 202; 644 NW2d 730
(2002), which succinctly stated, "Section 5852 is a saving provision, not a statute of limitations."
However, this ruling made little difference to the bench and bar and essentially went unnoticed,
as did Waltz's unpublished opinion in the Court of Appeals.
The issue that truly ignited the firestorm was the related holding that because MCL
600.5852 was a "saving provision," the medical malpractice tolling provision, MCL 600.5856,
did not toll it. Waltz, supra at 655. This was an issue of first impression on a settled area of law
whose resolution would ordinarily be limited to prospective application.2 See Pohutski v City of
Allen Park, 465 Mich 675, 696-697; 641 NW2d 219 (2002); Bryant v Oakpointe Villa Nursing
Ctr, Inc, 471 Mich 411, 432; 684 NW2d 864 (2004). It was not a nominal extension of
understood principles, but the plowing under of familiar and common legal concepts and the
reversal of years of standard practice. The ingrained nature of the pre-Waltz approach to tolling
statutes, saving statutes, and other extensions of limitations periods, can best be seen by
considering the legal concepts that developed along the way.
II. The Road to Waltz
A
Before Waltz, our Supreme Court had consistently held that MCL 600.5852 essentially
functioned as an extension or suspension of the limitations period for any action that survived
death under MCL 600.2921. Hardy v Maxheimer, 429 Mich 422, 441; 416 NW2d 299 (1987);
Lindsey v Harper Hosp, 455 Mich 56, 61; 564 NW2d 861 (1997). Because saving statutes were
historically understood to extend3 the underlying statutes of limitations, the saving statutes'
extensions were naturally presumed to be subject to and modified by any tolling provisions that
2
Limiting novel rules to prospective application preserves justice and discourages
gamesmanship, especially in the area of procedural law. The practice of restraining a new rule's
application implements the fundamental principle that procedural law should be consistent and
reliable. A judicial system should seek to settle on fixed procedural requirements rather than
holding litigants to standards that do not exist until they are impossible to meet.
3
A straightforward reading of § 5852 fully supports the traditional understanding that it extends
"the period of limitations," whatever it may be, and that it uses the extension to "save" the
underlying cause of action from premature demise. The common pre-Waltz legal perspective
was that the Legislature intended § 5852 to perform three functions: extend the underlying
statute of limitations, save the underlying action, and set new time limits on the extension.
Lindsey made "saving provision" a legal term of art, Miller applied a restrictive and exclusive
definition to the term, and Waltz attributed the knowledge of that definition to the Legislature.
Therefore, the judicial label applied to § 5852 sits at the epicenter of the current controversy.
Even if § 5852 is exclusively a saving provision, Waltz was the first opinion to conclude that the
Legislature intended this categorization to preclude the application of § 5856 to the saving
provision's time limits.
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applied to the underlying statute. 54 CJS, Limitations of Actions, § 150, pp 203-205. Ironically,
Corpus Juris Secundum cites Miller, supra, for this very proposition.4 54 CJS, Limitations of
Actions, § 150, p 204 n 6. As far back as 1982, in Hawkins v Regional Med Labs, 415 Mich 420,
438; 329 NW2d 729 (1982), Justice Ryan stated:
There is no reason to doubt, as recognized by the Janes [v Sackman Bros
Co, 177 F2d 928 (CA 2, 1949)] court, that statutory references to actions
surviving by law include those actions brought under MCL 600.2922; MSA
27A.2922 for non-instantaneous death resulting from wrongful conduct.
Therefore, MCL 600.5852; MSA 27A.5852 operates to extend the time in which
to bring such suits. That statute . . . gives the fiduciary an additional two years
from the date of issuance of letters testamentary in which to bring suit . . . .
[Emphasis added.]
Justice Ryan's express use of the words "extend" and "additional" amply justified the common
understanding in legal circles that MCL 600.5852 "saved" a cause of action by extending the
relevant statute of limitations. A sample of the common understanding is again ironically found
in Miller, supra at 202, in which the Supreme Court held that a similar extension found in MCL
600.5838a was "an alternative to the other periods of limitation," so "it is itself a period of
limitation."
Adding to this perception of the statute's role was the generally accepted view of
limitations on special rights. Legal authorities recognize that statutes that create new rights in
derogation of the common law traditionally contain their own time limits, and those limits are
categorized as either procedural or substantive statutes of limitations. See 54 CJS, Limitations
of Actions, § 22, p 46. Because the saving statute, MCL 600.5852; the survival statute, MCL
600.2921; and the wrongful death statute, MCL 600.2922, were all parts of a statutory scheme
that displaced the common law's determination of which causes of action survived death, who
could bring them, and how much time they had, the refined scheme needed time limits to prevent
abuse of the new process or prosecution of stale claims. The time constraints in MCL 600.5852
are the only outside time restrictions on a personal representative's ability to enforce a decedent's
claim on the estate's behalf. Therefore, the phrase "statute of limitation" apparently applied to
MCL 600.5852. In fact, in Hardy, supra at 430, the Supreme Court quoted and adopted the
following language from Janes v Sackman Bros Co, 177 F2d 928, 932 (CA 2, 1949):
"Since the present action is set up as a survival action under the combined
remedy now granted by § 27.711, the three-year period of § 27.605 obviously
applies, but is extended a maximum of three years by the provisions giving time
for the appointment of an administrator in § 27.610 [the earlier MSA version of
MCL 600.5852]. And plaintiff by his allegations has certainly brought his case
4
Adding to the irony, Miller's distinction between a saving statute and a statute of limitations
was also echoed in Lipman v William Beaumont Hosp, 256 Mich App 483, 491; 664 NW2d 245
(2003), to prove the proposition that § 5852 "extended" the statute of limitations.
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within the limits which the combination of these two limitation statutes imposes."
[Emphasis added.]
By expressly adopting and applying this reasoning to the modern MCL 600.5852, the Supreme
Court in Hardy presumably accepted Janes's classification of the time limits as limitations
periods and its classification of MCL 600.5852 as a statute of limitations.
B
The language of MCL 600.5852 clearly supported this classification, because the
wrongful death "saving provision" contains various time constraints to which personal
representatives must adhere or risk summary disposition.5 The saving provision, MCL
600.5852, reads as follows:
If a person dies before the period of limitations has run or within 30 days
after the period of limitations has run, an action which survives by law may be
commenced by the personal representative of the deceased person at any time
within 2 years after letters of authority are issued although the period of
limitations has run. But an action shall not be brought under this provision unless
the personal representative commences it within 3 years after the period of
limitations has run.
Although the first part of the statute extends the statute of limitations and "saves" the
cause of action by providing a personal representative with additional time to file suit, the second
part, and certainly the last sentence, limits the amount of additional time available. This is
important because when plaintiff filed his action, the relevant tolling provision, MCL
600.5856(d), stated that all statutes of limitations or repose are tolled during the six months after
a medical-malpractice plaintiff serves a notice of intent to sue.6 The relevant version of MCL
600.5856 stated, in its entirety:
The statutes of limitations or repose are tolled:
5
The concept of summary disposition raises an interesting, if somewhat ancillary, issue. The
only language in MCR 2.116 that addresses grounds for receiving summary disposition of a
time-barred claim is the phrase "statute of limitations" found in MCR 2.116(C)(7). If § 5852 is
not a "statute of limitations" or its extension, and a suit was technically brought outside the
original limitations period and the two-year period in § 5852, but before the three-year period
has expired, is the suit "barred" by the "statute of limitations"? Technically, expiration of the
original statute of limitations cannot bar the suit until the three-year saving period has expired.
Have all the defendants in these matters moved under the incorrect court rule? Should the
Supreme Court amend the rules to reflect its new distinctions?
6
The statute was amended within a few weeks after Waltz's release. Its amendment eliminated
the statute's third subsection, so the old subsection d regarding tolling for notices of intent is now
found in subsection c. MCL 600.5856.
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(a) At the time the complaint is filed and a copy of the summons and
complaint are served on the defendant.
(b) At the time jurisdiction over the defendant is otherwise acquired.
(c) At the time the complaint is filed and a copy of the summons and
complaint in good faith are placed in the hands of an officer for immediate
service, but in this case the statute is not tolled longer than 90 days after the copy
of the summons and complaint is received by the officer.
(d) If, during the applicable notice period under section 2912b, a claim
would be barred by the statute of limitations or repose, for not longer than a
number of days equal to the number of days in the applicable notice period after
the date notice is given in compliance with section 2912b.
If the language in MCL 600.5852 makes it a statute of limitations or repose, then serving
the notice of intent should toll the running of the "saving" time limits, providing a personal
representative with roughly six additional months to file suit. Because the Legislature
specifically and clearly placed time restrictions on personal representatives, the time constraints
in MCL 600.5852 looked and acted like limitations periods. See O'Brien v Hazelet & Erdal, 410
Mich 1, 15; 299 NW2d 336 (1980) (cited with approval in Miller, supra). Therefore, the
Supreme Court's adoption and application of the phrase "statute of limitations" to the statute
made sense, and it certainly did not face any initial opposition.
C
I am further persuaded that the two-year and three-year time periods in MCL 600.5852
contain the essential elements of a statute of repose, so that, before Waltz, practitioners would
have reasonably expected MCL 600.5856 to toll those periods. The primary difference between
a statute of limitations and a statute of repose is the impetus that starts the clock running. 54
CJS, Limitations of Actions, § 5, pp 22-23. "Unlike an ordinary statute of limitations which
begins running upon accrual of the claim, the period contained in a statute of repose begins when
a specific event occurs . . . ." Id. at 22. Although this impetus is ordinarily an affirmative action
by a defendant, neither Corpus Juris Secundum nor Black's Law Dictionary limits the definition
to this type of statute of repose, but both sources recognize two primary elements. The first is
that the statute starts running regardless of the accrual of a claim, and the second is the finality of
the repose.
In the case of wrongful death, any injury to the deceased has already accrued, and the
statute of limitations for any cause of action has already begun running. Therefore, the overall,
three-year period in MCL 600.5852 begins running at a fixed date. As for finality, the statute's
edict that "an action shall not be brought" is clearly a reflection of the Legislature's intent that a
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plaintiff loses the right to sue after the outside period expires. Therefore, there is an absolute,
outside limit placed on the personal representative's ability to bring suit.7
The two-year time period also begins running at a fixed date, the day the personal
representative receives letters of authority. Although this period is not as determinable because
of the unlimited potential for new personal representatives, it clearly works in tandem with the
second portion of the statute to prevent the limitations period from being indefinitely suspended.
Therefore, the bench and bar could reasonably anticipate that the express tolling of statutes of
repose by § 5856 would apply to the repose periods contained in § 5852.
Harmonizing all these legal principles would only bolster the perception, which Waltz
would later prove mistaken, that § 5856 applied to the relevant portions of § 5852. It appeared
that the Legislature intended the limitations period contained in § 5852 to limit the extended
statute of limitations for prosecuting any civil action that survived death under MCL 600.2921.
See Hardy, supra at 449. This fully explained why the Legislature placed the "saving provision"
in the chapter of the Revised Judicature Act that generally addresses statutes of limitations. This
interpretation also fostered the legislative purpose behind §§ 2921, 2922, and 5852, which was to
provide personal representatives with a reasonable opportunity to recover on the civil actions
that were available to the decedent. While one may have been able to predict that § 5852 would
continue to carry the label of a saving provision, nobody could have predicted with any degree of
practical certainty that the mere designation as a "saving statute" cast its limitations periods in
stone.
It oversimplifies the issue to assume that the Legislature's intent was obvious because §
5856 did not clearly include saving statutes among those that were tolled.8 The saving provision
in § 5852 was enacted before the tolling provision in § 5856, and each of them was enacted long
before the Supreme Court declassified § 5852 as a statute of limitations. Although the particular
7
I note that the three-year limit was the one particularly at issue in Waltz v Wyse, unpublished
opinion per curiam of the Court of Appeals, issued October 1, 2002 (Docket No. 231324). The
conflict in that case was between the rather absolute language, "an action shall not be brought"
more than three years "after the period of limitations has run," MCL 600.5852, and the argued
extension of that outside period by MCL 600.5856. In another unpublished opinion, our Court
had already found that the two-year time limit was specifically tolled by MCL 600.5856.
Chernoff v Sinai Hosp of Greater Detroit, unpublished per curiam opinion of the Court of
Appeals, issued March 22, 2002 (Docket No. 228014). Although not binding, Chernoff provides
compelling evidence of the legal community's general understanding of the state of the law.
8
Judging by the flurry of cases after Waltz, it appears that few practitioners predicted that the
Supreme Court would hold that the exclusive status of § 5852 as a saving provision meant that it
"plainly" lacked any period of limitations governing how long a cause of action was saved, so §
5856 obviously did not apply to it. Several honest defense attorneys have admitted their surprise
at Waltz's holding, and several others have trouble explaining why they delayed their clients'
defense by failing to raise such a plain and obvious issue immediately after the Supreme Court
decided Miller.
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tolling provision in § 5856 made no direct reference to the saving statute or its limitations period,
such a direct reference did not appear necessary under the classification adopted in Hardy, and
the statute well predates Miller's unassuming, unsupported, and one-sentenced distinction that
forever pigeonholed the statute.
III. The Interplay Between Sections 5852 and 5856
Our Court's first experience with the interplay between § 5852 and § 5856 came in
McNeil v Quines, 195 Mich App 199; 489 NW2d 180 (1992). In McNeil, supra at 202-204, we
rejected a medical malpractice defendant's argument for dismissal despite the fact that the
original two-year statute of limitations, the two-year tolling provision in § 5852, and the threeyear outside period of limitations in § 5852 all had expired before plaintiff brought suit. The
claim had accrued when the decedent died on June 20, 1981, but § 5852 preserved the claim
when a personal representative was appointed on June 15, 1983, nearly two years later. McNeil,
supra at 202-203. "Thus, on the facts of this case, the period of limitation was extended until
June 15, 1985." Id. at 203. The plaintiff moved to add the defendant as a party on May 21,
1985, which, consistent with the common understanding, left 25 days on the clock. Id. at 203204. However, that period quickly expired, and for nearly five years afterward, the case wound
its way through the lower and appellate courts before the circuit court finally dismissed it
without addressing the merits of the case. Id. at 201, 203-204. Although the relevant time limit
in MCL 600.5805, and both time limits in MCL 600.5852, had long expired, we did not affirm
the case's dismissal. Instead, we applied MCL 600.5856 to the limitations period as extended by
MCL 600.5852, and held that the defendant's addition as a party9 tolled this period so that the
action "was not barred by the statute of limitations." Id. at 204.
McNeil's holding runs directly contrary to the Supreme Court's reasoning and ultimate
decision in Waltz, and that inconsistent path was only further beaten and blazed in the first major
Supreme Court case that directly addressed these issues, Omelenchuk v City of Warren, 461
Mich 567; 609 NW2d 177 (2000). In hindsight, Omelenchuk did not provide any indication that
the Supreme Court was reconsidering the traditional approach to wrongful-death, medicalmalpractice procedures. Instead, from Waltz's perspective, Omelenchuk was the first major
example of a serious misstep by our appellate courts. In Omelenchuk, the Supreme Court
9
The fact that McNeil was applying a different subsection of § 5856 does not affect the analysis,
because the Supreme Court's decision that the statute only tolls "statutes of limitations" derives
from the opening language in § 5856, so it limits the application of all the subsections.
Presumably, this means that if a personal representative timely and correctly files suit, but that
suit is dismissed without prejudice, the personal representative may not renew the action if the
suit has been pending so long that the letters of authority are more than two years old. The
holding in Waltz also casts into doubt the handful of other tolling provisions that affect only
"periods of limitation." See, e.g., MCL 600.5853 (defendant absent from state). One thing is
clear: Waltz's expansive holding has implications that reach far beyond the realm of medical
malpractice, and personal representatives with every type of action should be paying close
attention.
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expressly applied the tolling provision in § 5856(d) to the saving statute, and held that "the twoyear limitation period" as marked from the date the plaintiffs were issued their letters of
authority "was tolled one hundred eighty-two days." Id. at 577. Although a minor point in the
analysis, this language obliterated any notion that Hardy may have misclassified § 5852 as a
statute of limitations subject to further tolling. It also directly supported the principle from
McNeil that the tolling provisions in § 5856 applied to the time limits in § 5852. In Waltz, supra
at 652-655, however, Omelenchuk's analysis would be overruled as unsupported and absentminded dicta.
After Omelenchuk, our Court issued Chernoff v Sinai Hosp of Greater Detroit,
unpublished opinion per curiam of the Court of Appeals, issued March 22, 2002 (Docket No.
228014). We issued Chernoff only a few months before the Supreme Court decided Miller and
only a few more months before we issued our opinion in Waltz. In Chernoff 's first footnote, we
reaffirmed our understanding of the correct legal approach by expressly holding that MCL
600.5856(d) tolled the two-year limitations period in MCL 600.5852.
In Miller, however, the Supreme Court followed up its rearview dicta regarding
Omelenchuk with the cursory sleeping-giant observation that the wrongful-death statute was not
a statute of limitations at all, but a saving provision.10 Miller, supra at 202. Although Miller's
observation sounded the death knell for the application of § 5856 to § 5852, any chance that
judges and practitioners would heed the toll was squelched by the Supreme Court's reasoning,
which did not remotely appear to tighten up medical-malpractice procedures. Instead, the Court
saved a malpractice litigant's cause of action by allowing a plaintiff to stack the discovery rule
extension onto the two-year extension in § 5852. Id. at 203. The relevant aspects of Miller's
holding suggested that it was not reversing any established legal principles, but reinforcing them.
For example, in Miller, the Supreme Court concluded that § 5852 applied to save a lawsuit, even
though the two-year statute of limitations for medical malpractice had expired well before the
decedent's death. Id. at 198, 202. It held that the discovery rule in MCL 600.5838a(2) provided
the decedent with a new limitations period, because the decedent had not discovered the
malpractice until a few months before his death. Id. Accordingly, the new limitations period did
not expire before the decedent died, and § 5852 applied to save the cause of action. Id. at 203.
Following this analysis, the Court observed, "Section 5852 is a saving provision, not a
statute of limitations." Id. at 202. Interestingly, the Court did not apply this observation to the
discovery rule, MCL 600.5838a, which essentially operates in the same fashion as § 5852. The
discovery rule essentially saves a suit from being barred by the statute of limitations by granting
a litigant more time to sue. MCL 600.5838a(2) reads as follows:
10
I again note that Corpus Juris Secundum cites Miller for the proposition that Michigan's
wrongful-death saving statute extends the underlying statute of limitations, arguably subjecting
the extended time limit to statutory tolling. 54 CJS, Limitations of Actions, § 150, p 204, n 6.
This misinterpretation demonstrates the legal community's understandable surprise at the fact
that Miller quietly contained a much more powerful legal principle than first suggested by its
unassuming and limited posture.
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Except as otherwise provided in this subsection, 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. However, except as otherwise provided in section
5851(7) or (8), the claim shall not be commenced later than 6 years after the date
of the act or omission that is the basis for the claim.
The clear language of this provision indicates that it "saves" a cause of action because it
increases, or extends, the period for filing suit. Much like the "saving statute," § 5838a(2) never
operates to shorten the period of limitation. Miller, supra at 203. This point is further supported
by a brief discussion in Miller of whether the Supreme Court should address the argument that
MCL 600.5838a(2), as applied to a personal representative, "further extended" the periods
permitted in MCL 600.5852. Miller, supra at 201 n 3 (emphasis added). Therefore, Miller
reinforced the common legal understanding that an extension of the original statute of limitations
provides "an alternative . . . period of limitation." Id. at 202.
Careful comparison of § 5838a(2) and § 5852 reveals that the Legislature intended each
statute to extend the underlying limitations period to allow litigants additional time to pursue
their cause of action. However, each statute also contains its own limitations periods. In Miller,
supra at 202, the Supreme Court determined that the six-month discovery rule contained in MCL
600.5838a(2) was a "period of limitations" within the meaning of the saving statute. The statute
also provides that "the claim shall not be commenced later than 6 years after the date of the act
or omission that is the basis for the claim." MCL 600.5838a(2). It appears that § 5838a(2) acts
as both a limitations period and, since it sets a date after which a "claim shall not be
commenced," a statute of repose. See O'Brien, supra. Although § 5852 contains similar
language, it was not categorized as either one. In my opinion, the same analysis that led the
Supreme Court to classify § 5838a(2) as an alternative statute of limitations fully justified
classifying § 5852 as an "alternative" statute of limitations as well.
Although I can only guess at why Miller expressly removed § 5852 from the "statute of
limitations" category of procedural devices, none of the possible explanations could forecast
Waltz's application of the new, restrictive designation. Considering the context of Miller's novel
legal distinction, the most likely reason for the reclassification was concern that courts would
dismiss personal representatives because they had not filed suit within the two-year period
provided in § 5852, even though the original statute of limitations had not yet expired.
Borrowing bits of ideas from Hardy, the Court apparently wanted it understood that the time
limits in MCL 600.5852 were not independent periods of limitations subject to isolated
enforcement, but that they extended existing periods to aid surviving litigants in the pursuit of
justice. Miller's short statement was an indirect and imprecise way of saying that statutes of
limitations run out, whereas saving statutes add time. The designation prevented the law's
misapplication in the particular case. It also discouraged future defendants from moving for
summary disposition after the two-year limit expired, even if the underlying statute of limitations
had not yet run. This is exactly how the opinion was interpreted and applied in Lipman v
William Beaumont Hosp, 256 Mich App 483, 488-489; 664 NW2d 245 (2003) (analyzing the
issue under the heading "MCL 600.5852 IS NOT THE GOVERNING STATUTE OF
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LIMITATIONS"). Therefore, until Waltz, the bench and bar never spotted the lurking problem
caused by Miller's subtle legal distinction.
Six months after Miller, our Court again issued an opinion that conformed to the common
understanding and totally contradicted the reasoning in Waltz. In Fournier v Mercy Community
Health Care Sys-Port Huron, 254 Mich App 461, 468; 657 NW2d 550 (2002), our Court
provided the following succinct analysis: "In this case, Fournier died on July 7, 1998. The letters
of authority were issued on July 13, 1998. Therefore, the two-year statutory period of limitation
began on July 13, 1998, and extended to July 13, 2000." Moreover, we only held that MCL
600.5856(d) did not toll the "statutory period of limitation" because the plaintiff failed to provide
proper notice of her intent to sue. Id. at 469. Therefore, the bench and bar still had a concrete
understanding of how § 5852 should apply, and that understanding was diametrically opposed to
the reasoning stated in Waltz.
The only accurate statement that could be made about MCL 600.5852 at this point was
that it had various elements of a statute of limitations, an extension to the statute of limitations, a
saving statute, and a statute of repose. Although the indefinite and indistinct nature of the statute
insinuates that the law was unsettled before Waltz clarified it, applying the tolling statute to the
several facets and nuances of § 5852 all led to one conclusion—serving a notice of intent tolled a
personal representative's time limits for filing suit.
The bench and bar use statutes and our opinions as maps to navigate the law. Before
Waltz, two attorneys each could have read the maps with the goal of arriving at a certain city, say
Mt. Pleasant. After Waltz established a series of unmarked detours, however, one attorney finds
himself in Grand Rapids, another attorney ends up in Lansing, and both attorneys are too far
down the road to turn back and reach their original destination on time. In my opinion, the preWaltz road maps clearly established that whichever statute contained the outermost time limit for
filing suit contained the relevant limitations period.11 That statute was the "statute of
limitations" for that particular action. This understanding was generally consistent with Miller.
Only after Waltz was decided was it easy to spot where the attorneys made their wrong
turns. Few lawyers, if any, could have predicted that § 5856 presumably applied to the
discovery rule's "statute of limitations," but never applies to the comparable limitations in §
5852. Reasonable attorneys unsurprisingly concluded that § 5856 applied to both, and so wound
up redirected and far from their destinations.12 In my opinion, it may be time for the Legislature
to draw a new map. The current map leads litigants through a major construction project littered
with orange barrels, detours, potholes, and, since the release of Waltz, speed traps.
11
To argue otherwise would have required a litigant to challenge the very definition of the legal
phrases "limitations period" and "statute of limitations." O'Brien, supra.
12
If I were following these road maps, I would have ended up remanded (or, more likely,
reversed) in Marquette, with many of my appellate colleagues.
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IV. Our Part
Because of the contentious nature of these cases and the numerous filings and plethora of
different opinions in this Court on what have now become known as Waltz issues, I believe that
this Court's efforts have been exhausted. It is time for the Supreme Court to grant leave and
render a complete and hopefully final decision on the issue whether Waltz should be applied
prospectively or retroactively. In that regard and with due respect to my colleagues, I offer the
following frank observations garnered from closely tracking the recent developments in this area
of law.
What first strikes me about Miller, Waltz, and our Court's reaction to them is the dearth of
substantive analysis at every turn. Miller whispered, without even the inflection of citation, that
§ 5852 fit tidily within only one technical legal category. When Waltz crashed to earth with
seismic force, it noticeably lacked any review of Miller's unsupported classification of MCL
600.5852 as exclusively a saving statute. It also failed to follow up the reasoning behind the
source of the nomenclature, which could be found in Hardy and Lindsey. The opinion does not
discuss the distinction, if any, between an extension to a statute of limitations and a saving
provision, and does not cite any law for the vital proposition that tolling provisions do not apply
to limitations periods in saving statutes. None of the cases before or since Waltz has analyzed
the potential application of the phrase "statute of repose," which one might assume to be
relevant, considering it is clearly a second item within the tolling statute's purview.13 MCL
600.5856(d) (before 2004 amendment). Waltz, without explanation, merely mentions in its
concluding section that MCL 600.5852 is not a statute of repose.
In its discussion of the relevant statutes, Waltz also omits any reference to the textualist's
favored term, "unambiguous," which might open the door to more expansive judicial
interpretation. Most importantly, however, not one line in Waltz was devoted to the efficacy,
desirability, or prudence of retroactively enforcing its application of the novel judicial
classification of the statute to the procedural time limits in § 5852. See Pohutski v City of Allen
Park, 465 Mich 675, 697-698; 641 NW2d 219 (2002); Bryant v Oakpointe Villa Nursing Ctr,
Inc, 471 Mich 411, 432-433; 684 NW2d 864 (2004).
After Waltz, we issued Ousley v McLaren, 264 Mich App 486; 691 NW2d 817 (2004)
(adopting, without analyzing or elucidating, the Supreme Court's repudiation of Omelenchuk).
As I have repeated ad nauseam, Ousley failed to look beyond the Supreme Court's demure
declaration that Omelenchuk was wrongheaded, so it must have been unreliable dicta. Ousley
summarily repeated Waltz's hindsight observations and indisputably allowed the Supreme Court's
post hoc disapprobation of Omelenchuk to taint its evaluation of the relevant question: should
Waltz apply retroactively? Whether this special brand of judicial restraint should control
depends on the degree of shift in the law, the judicial (rather than legislative) cause of the shift,
13
In fact, the issue has not even received thorough briefing from the litigants.
-11-
and the shift's effect on the legal bearings and practical expectations of the bench and bar.14
Pohutski, supra.
In Ousley, we adopted the Supreme Court's criticism of Omelenchuk's latent infirmities
and transformed that criticism into an assumption that those flaws always lay blatantly exposed
and embarrassingly apparent, stultifying Omelenchuk's authority ab initio. Although the Ousley
panel correctly predicted the result that the Supreme Court would prefer, it could not predict the
firestorm that would follow. Its general review of the elements of retroactivity and application
of Waltz's condemnation of Omelenchuk did not, and probably could not, account for the fact
that untold numbers of plaintiff and defense attorneys were surprised by what they perceived as a
dramatic change in the law. I think it is important to note that most members of the bench,
including myself, were also surprised to discover that MCL 600.5852 did not contain any periods
of limitations, so the general tolling statute "plainly" did not apply to it.
Our Supreme Court then issued a series of remand orders directing us to apply Waltz
retroactively. These orders (some might say thankfully) did not require us to expend any more
judicial or mental energy on the topic, nor did they require us to give a reasoned analysis for our
decisions. While expressly avoiding the issue of the remand orders, the majority in McLean v
McElhaney, 269 Mich App 196; 711 NW2d 775 (2005), failed to further the substantive analysis,
partially due to its own reservations about whether the battle was too quixotic to join. This set
the stage for Mullins v St Joseph Mercy Hosp, 269 Mich App 586; 711 NW2d 448 (2006)
(Mullins I), vacated as to part III of the opinion, 269 Mich App 801 (2006), and, ultimately, for
Mullins v St Joseph Mercy Hosp, 271 Mich App 503; 722 NW2d 666 (2006) (Mullins II).
With an anticlimactic sidestep, the majority opinion in Mullins II waltzed around the
substantive issue of retroactivity.15 Instead, it decided that, in light of the Supreme Court remand
14
In my view, practitioners were hard pressed to divine, consistently with Waltz, the legislative
intent regarding the relationship between the medical-malpractice tolling provision and the
wrongful-death saving provision. After all, the Legislature included the "saving provision" in
Chapter 58 of the Revised Judicature Act (which generally addresses time limitations for
bringing causes of action) and placed it four statutes before the tolling provision. MCL
600.5852 (wrongful-death saving provision); MCL 600.5856 (tolling provision). Add to this
apparently sound legal footing an obstacle course of unassuming and largely indecipherable
opinions and an intricate web of various other statutory time limitations, and the entire system
becomes a snare for the unsuspecting or politically unwary litigant. One fact has become
obvious: even the most experienced medical malpractice practitioners were unable to navigate
their way through the complicated legislative scheme. Although the rearview mirror reflects a
straight and narrow road, this image contrasts sharply with the perspective of the practitioners
who were required to traverse it.
15
In Mullins II, the majority resolved the following issue: Do remand orders constitute binding
precedent on this Court? Enough members of the panel decided that the orders are binding. The
problem? This was only a secondary issue. Because the panel decided that the remand orders
were binding on them, they were not required to resolve the substantive issue of retroactivity,
despite the fact that the retroactivity issue was at the heart of the conflict.
-12-
orders, there was no need to address the retroactivity issue head-on. See Mullins II, supra at
508-510. Although this represented a practical solution in light of the three remand orders, the
majority opinion failed to provide any additional substantive guidance on the primary issue
presented. Moreover, it did not adequately address the dissents, which addressed all the issues
and set forth scads of reasons why the remand orders should not bind this Court and why Waltz
should not apply retroactively.16
From my perspective, I personally find it unfortunate that barrels of ink have flowed forth
decrying the unanticipated and unjust misfortune litigants have suffered because of Waltz, but all
the substantive legal analysis of this issue from our controlling precedent would not fill a
postcard. Perhaps this alone should give us pause to reassess our function. Rather than squarely
address the issue, we have now adopted the rule that remand orders are binding on this Court.
They must be followed without discussion, and we are not free to ignore their substantive
import, even if they are directed at a different case.
The primary problem with this approach is that we have not improved the clarity of the
law, and we have saddled ourselves with a new, all-encompassing rule. Remand orders are now
binding on this Court, and we must extrapolate from them and enforce whatever rule of law they
may imply.17 In my opinion, this does both Courts an injustice. Our Court must now yield to
16
The vote on the Mullins II conflict panel was 4-3. The vote to convene the conflict panel was
almost equally divided. Mullins II generated four separate, distinct, and well-written opinions.
As Judge Cooper pointed out in her dissent, each opinion phrased the issue differently and then
proceeded to analyze the issue on the basis of how the issue was presented. Mullins II, supra at
541 (Cooper, J., dissenting). Judge White made the point that she would be surprised if all seven
Supreme Court justices agreed that these remand orders were binding on this Court. Id. at 536 n
4 (White, J., dissenting). The majority opinion in Mullins II did not address the substance of the
retroactivity issue even though the Mullins I majority only initiated the conflict procedure for
that issue. Unsurprisingly, the substantive issue of retroactivity was decided on the strength of
the opinion-less remand orders. I posit that if the remand order issue were expressly put to a
second conflict panel vote, a majority of this Court would conclude that remand orders that lack
a substantive review of the facts and law are not binding on other cases. This discussion merely
exemplifies the need for an exhaustive opinion on the substantive issue of retroactivity.
17
I note that this type of presumed reasoning has already received spotty application in this
Court. For example, the Supreme Court denied leave to appeal in Chernoff, supra, which
implicitly meant that it had no qualms with its application of § 5856 to the first time limit in §
5852. Nevertheless, the majority opinion in McMiddleton v Bolling, 267 Mich App 667, 672 n
2; 705 NW2d 720 (2005), correctly refused to read anything into the denial and matter-of-factly
stated that the Supreme Court's decision not to grant leave on a case was of no moment. It did
not address the fact that the underlying case clearly contradicted the legal reasoning in Waltz.
Although I think Harris ultimately reached an unpalatable result, I too prefer the approach that
does not relegate us to poring over hundreds of "Actions on Applications" tea leaves to portend
which way the legal wind might blow tomorrow.
-13-
unsubstantiated remand orders, and, even more disturbing, the dissenting voice of any Supreme
Court justice is now effectively hushed in favor of expediency. In full defiance of the new
arrangement and noting my preference for learned opinions over remand orders on unsettled
issues, I add the following concise analysis.
Even after Miller, the bench and bar had every reason to believe that the tolling provision
in § 5856 applied to § 5852. Miller's analysis did not address the limitations period in § 5852,
and could easily be distinguished because its primary issue involved the discovery rule's effect
on the malpractice statute of limitations. Miller dealt with the issue of whether § 5852 applied at
all in light of the fact that the original period of limitations had run. Miller's classification
regarding the distinction between saving statutes and statutes of limitations or repose only
reinforced the traditional view, but was ultimately dictum because the designation of § 5852 had
no bearing on the outcome of the case. The issue was whether § 5852 applied to the original
malpractice limitations period or the discovery rule's limitations period. The case did not
mention § 5856 and did not attempt to distinguish, much less overrule, Hardy, Omelenchuk,
O'Brien, or McNeil. The classification adopted without citation in Miller merely reinforced its
role as purely an extension of, rather than a substitute for, the original statute of limitations, and
its central holding corresponds with the common understanding that the tolling provisions of §
5856 would apply to the extension limits provided in § 5852. Therefore, Waltz was an issue of
first impression on a seemingly settled procedural issue, and the rule recognized in Pohutski,
supra, should apply to it.
As explained at oral argument in this case, reaching the correct rule in any area of the law
requires a step-by-step process. Each step is a different case or point of law, and each case
builds on the cases that came before it. In this regard, the Supreme Court admitted in Waltz,
supra at 653-655, that it had strayed in Omelenchuk, and that it had done so without careful
analysis or serious thought. The cases leading to our conflict panels could be considered further
missteps, but what is missing in all these cases is a thorough analysis of how we know that the
Legislature did not intend MCL 600.5852 to fall within the ambit of MCL 600.5856, or why the
time limits in MCL 600.5852 should not be construed as limitations periods. Without this initial
analysis, we can never hope to explain how litigants should have anticipated Waltz. Every
misstep leads to an incorrect conclusion with disastrous results and further uncertainty for
litigants.18 Our collective failure to engage in the rigorous debate that hones and strengthens
rules leaves litigants with no guidance, forcing them to guess at which road will next be washed
out from under them.
18
If one were counting missteps, we would have to conclude that the plaintiffs' bar, the vast
majority of the defense bar, the Court of Appeals, and the Supreme Court all wandered well off
the path. Only certain members of the defense bar progressed on relatively solid ground.
Unfortunately, it took the defense bar several years of scouting various routes before its
members were able to pick up the trail and consistently articulate the reasons why tolling under §
5856 did not apply to the limitation periods in § 5852. In my opinion, this delay also counts as a
misstep. Although ignorance of the law is no excuse, one has to wonder what caused everyone
(other than an exceptional few) to lose their way so often.
-14-
Now our path, and the path of all lower courts and litigants, will be further encumbered
by the additional task of deciphering remand orders for substantive guidance.19 Coupled with
our lack of analysis, this distillation process will suggest that all the members of our Court and
all the Supreme Court justices agree with the legal and substantive aspects of the issues, and that
we simply choose to withhold our keys to enlightenment. Although this is certainly not the case,
our collective decision not to frame the issues for further analysis or review leaves litigants, and
anyone else who would dare to venture into this area of the law, scrambling in the dark. By
withholding the new map, or refusing to draw it, we have abandoned our role of guiding litigants
through the litigation process. Moreover, we will continue to stumble blindly through the issues
ourselves, leaving this highly technical area of procedural law in a state of inexcusable, and
apparently incurable, flux.
V. Conclusion
With more than 60 cases involving Waltz issues in various stages of the appellate
process, the time is ripe for the Supreme Court to address the substantive issue presented to the
Mullins II conflict panel. Without a plenary discussion of the issues, we are left only with the
remand orders. In my opinion, only a learned and exhaustive opinion will amicably put these
and other unsettled issues to rest. I would simply ask that the Supreme Court grant leave to
appeal in one of these cases and resolve the issue of whether Waltz should be applied
prospectively or retroactively.20
19
In the most recent Supreme Court case of Woodard v Custer, 476 Mich 545, 587-591; 719
NW2d 842 (2006) (Woodard II), Justice Markman appended an exhaustive list summarizing
recent Supreme Court decisions regarding the topic of medical malpractice. Noticeably absent
from this list are any opinions or orders that conclude that Waltz should be applied prospectively
or retroactively or that remand orders are binding on this Court. One could speculate regarding
this obvious omission. However, rather than speculate, I think that the bench and bar need a
learned opinion that addresses the merits of this issue. In my view, relying on remand orders to
resolve complicated legal issues contravenes sound public policy.
20
In light of Waltz and the Supreme Court's remand orders, one may ask why this concurring
opinion is of any import. The answer is simple: neglect invites and perpetuates error. Each of
us bears the onerous responsibility of applying, interpreting, and shaping the law, and we neglect
this responsibility when we fail to justify, with well-reasoned analysis, our agreement or
disagreement with a relevant point of law. Failure to engage in the debate hinders our hunt for a
statute's intended purpose and generally stifles the formation of sound legal principles. If we all
gently withdrew our voices from the arena of competing ideas, then mistakes would go
unchallenged, and the process of correction would suffer a nearly insurmountable setback. This
case proves the rule. Lacking a clear direction from the appellate courts, and further lacking the
independent ability to foretell which procedures may exist after it is too late to follow them,
attorneys and lower courts will continue to stumble about, and this honorable judicial system
will grow hopelessly unpredictable and intolerably frustrating for the people it was established to
serve. In light of the number of Waltz cases filed in this Court, few, if any, practitioners could
have predicted that, from its offhand distinction in Miller, the Supreme Court would extrapolate
the rule that § 5856 did not toll the time limits for any statute designated a "saving statute."
(continued…)
-15-
/s/ Peter D. O'Connell
(…continued)
Therefore, I believe it was a mistake to apply Waltz retroactively, and I respectfully request that
the Supreme Court or the Legislature take the necessary measures to repair the damage caused
by this major misstep.
-16-
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