ROBERT COSTA V MICHIGAN HEART & VASCULAR INSTITUTE INC
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
ROBERT COSTA, Personal Representative of the
ESTATE OF JAYNE J. COSTA, Deceased,
UNPUBLISHED
December 6, 2005
Plaintiff-Appellee,
v
No. 256673
Washtenaw Circuit Court
LC No. 02-001480-NH
OTTO GAGO, M.D.,
Defendant-Appellant,
and
MICHIGAN
HEART
&
VASCULAR
INSTITUTE, INC, and ST. JOSEPH MERCY
HOSPITAL ANN ARBOR, a/k/a TRINITY
HEALTH – MICHIGAN,
Defendants.
Before: Smolenski, P.J., and Schuette and Borrello, JJ.
PER CURIAM.
Defendant appeals by leave granted from the trial court’s order denying his motion for
summary disposition brought pursuant to MCR 2.116(C)(7) in which defendant argued that
plaintiff’s claim was barred by the applicable statute of limitations. We reverse and remand this
case to the trial court for entry of summary disposition in defendant’s favor. This case is being
decided without oral argument pursuant to MCR 7.214(E).
I. FACTS
On December 27, 2002, plaintiff filed a complaint against defendant. Plaintiff is the personal
representative of Jayne J. Costa, who died on January 12, 2000. While plaintiff’s complaint does
not note the specific date of death, the parties do not dispute that Costa died on January 12, 2000.
Plaintiff alleged that the Costa’s death was the result of medical malpractice committed by
defendant during decedent’s quadruple bypass surgery performed on January 10, 2000. On
March 11, 2003, defendant answered plaintiff’s complaint denying any malpractice and asserting
as an affirmative defense that plaintiff’s claim was barred by the applicable statute of limitations.
On May 18, 2004, defendant filed a motion for summary disposition pursuant to MCR
-1-
2.116(C)(7) and (C)(10) arguing that plaintiff’s claim was barred by the applicable statute of
limitations because plaintiff failed to file his claim before the expiration of the two-year statute
of limitations on January 12, 2002, [January 10, 2002] or before the expiration of the two-year
savings period granted him as a personal representative that expired on November 29, 2002.
Defendant argued that, while plaintiff filed a notice of intent to sue defendant on June 18, 2002,
before the expiration of the two-year savings period, our Michigan Supreme Court had recently
decided in Waltz v Wyse, 469 Mich 642; 677 NW2d 813 (2004), that the filing of the notice did
not toll the two-year savings period granted plaintiff under the wrongful death savings statute.
II. RETROACTIVE APPLICATION OF WALTZ V WYSE
Defendant asserts that the trial court erred by failing to apply our Supreme Court’s
decision in Waltz v Wyse, 469 Mich 642; 677 NW2d 813 (2004), to the present case. We agree.
A. Standard of Review
This Court reviews de novo a trial court’s decision on a motion for summary disposition,
Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003), and the timeliness of a claim,
Farley v Advanced Cardiovascular Health Specialists, PC, ___ Mich App ___; ___ NW2d ___
(2005), slip op at 4. Under MCR 2.116(C)(7), summary disposition is proper when a claim is
barred by the statute of limitations.
B. Analysis
In Waltz, supra at 650, our Supreme Court held that the tolling statute, MCL 600.5856,
does not apply to the wrongful death savings statute, MCL 600.5852. This Court has already
determined, in Ousley v McLaren, 264 Mich App 486, 494-495; 691 NW2d 817 (2004), that the
Waltz decision applies retroactively. Not only is the Ousley decision binding precedent on this
Court, MCR 7.215(J)(1), but, on June 17, 2005, our Supreme Court remanded three medical
malpractice cases to this Court and, in each order, stated, “We further direct the court to give the
holding of Waltz v Wyse … full retroactive application.” Evans v Hallal, 472 Mich 929; 697
NW2d 526 (2005); Wyatt v Oakwood Hospital and Medical Centers, 472 Mich 929; 697 NW2d
528 (2005); Forsyth v Hopper, 472 Mich 929; 697 NW2d 526 (2005). In light of our Supreme
Court’s directive and this Court’s precedent in Ousley, supra, plaintiff’s argument against
retroactive application of Waltz must fail. Furthermore, this Court has already determined that
the Waltz decision applies to the two-year savings period granted personal representatives in
MCL 600.5852. Farley, supra slip op at 6-7.
Plaintiff failed to file his claim before the expiration of the two-year period of limitations
and also before the expiration of the two-year period granted him as a personal representative.
As a result his claim is barred by the statute of limitations.
Reversed and remanded to the trial court for entry of summary disposition in defendant’s
favor pursuant to MCR 2.116(C)(7). We do not retain jurisdiction.
/s/ Michael R. Smolenski
/s/ Bill Schuette
-2-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
