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 No. 265599 Ingham Circuit Court LC No. 03-001864-NH JOHN C. SIANO, JR., M.D., LANSING INTERNAL MEDICINE ASSOCIATES, P.C., and EDWARD W. SPARROW HOSPITAL ASSOCIATION, Defendants-Appellees. Official Reported Version Before: Sawyer, P.J., and O'Connell, Saad, Wilder, Zahra, Owens, and Fort Hood, JJ. PER CURIAM. This Court convened this special panel pursuant to MCR 7.215(J)(3) to resolve a conflict that arose between our decision in Mazumder v Univ of Michigan Regents, 270 Mich App 42; 715 NW2d 96 (2006), and our later decision in this case, Ward v Siano, 270 Mich App 584; 718 NW2d 371 (2006), vacated in part 270 Mich App 801 (2006). Pursuant to our conflict resolution rules, this Court vacated those portions of Ward that conflicted with Mazumder. MCR 7.215(J)(5). We now address the issue that the original panel in Ward would have decided differently if it were not bound to follow Mazumder. MCR 7.215(J)(1), (2). The issue is whether a wrongful death plaintiff may rely on equitable tolling to escape the retroactive effect of our Supreme Court's decision in Waltz v Wyse, 469 Mich 642; 677 NW2d 813 (2004). In Waltz, our Supreme Court stated that the two-year period contained in the wrongful death saving statute, MCL 600.5852, was not tolled by serving a medical malpractice defendant with a notice of intent to sue. Waltz, supra at 655. Our Court recently reaffirmed that Waltz applies retroactively, Mullins v St Joseph Mercy Hosp, 271 Mich App 503, 507-510; 722 NW2d 666 (2006), so plaintiffs who filed before Waltz, but incorrectly and detrimentally relied on their notice of intent to sue to toll the running of the saving statute, are barred from pursuing their claims. In Mazumder, supra at 62, however, this Court applied the doctrine of equitable tolling to a plaintiff who had relied on her understanding of the law as it existed before Waltz was issued. The dissent in Mazumder pointed out that uniform application of equitable tolling to similar plaintiffs would effectively circumvent those decisions that applied Waltz retroactively. -1- Mazumder, supra at 71-72 (Hoekstra, P.J., concurring in part, dissenting in part). In our previous opinion in this case, this Court agreed that the retroactive application of Waltz could not coexist with a blanket exception of equitable tolling woven solely form the general unfairness of retroactively applying Waltz. We concur with that reasoning. Because our Court has held that Waltz applies retroactively, we resolve the conflict in favor of our initial opinion in this case. We reinstate its reasoning and adopt it as the rule of law. Equitable or judicial tolling ordinarily applies to a specific extraordinary situation in which it would be unfair to allow a statute of limitations defense to prevail because of the defendant's bad faith or other particular and unusual inequities. See 51 Am Jur 2d, Limitation of Actions, § 174, pp 563-564. Absent statutory language allowing it, judicial tolling is generally unavailable to remedy a plaintiff 's failure to comply with express statutory time requirements. See 51 Am Jur 2d, Limitation of Actions, § 177, p 565 ("Equitable tolling is not permissible if it is inconsistent with the text of the relevant statute."); see also Secura Ins Co v Auto-Owners Ins Co, 461 Mich 382, 387-388; 605 NW2d 308 (2000); Garg v Macomb Co Community Mental Health Services, 472 Mich 263, 285 n 12; 696 NW2d 646 (2005). Inequities that justify judicial tolling must arise independently of the plaintiff 's failure to diligently pursue the claim in accordance with the statute. See 51 Am Jur 2d, Limitation of Actions, § 174, pp 563-564, and § 177, p 565; see also Devillers v Auto Club Ins Ass'n, 473 Mich 562, 586, 590-592; 702 NW2d 539 (2005). In Waltz, supra, our Supreme Court held that the plain language of MCL 600.5856 prevented it from tolling the saving statute, MCL 600.5852. The Court resolved the dispute over the relevant time frames specifically on the basis of statutory interpretation. Waltz, supra at 651652. Therefore, it essentially concluded that the Legislature never intended to allow a personal representative to bring a wrongful death claim outside the two-year period in MCL 600.5852, despite the filing of a notice of intent to sue. See id. at 651. In light of Waltz, any attempt on our part to excuse nonconformity with the statute would amount to amending the statute—in effect, legislating from the bench. See Devillers, supra at 590 n 65. This is not the function of the judiciary. Id. Although a court may limit its novel interpretation of a statute to prospective application, Pohutski v City of Allen Park, 465 Mich 675, 696-697; 641 NW2d 219 (2002); see also Bryant v Oakpointe Villa Nursing Ctr, Inc, 471 Mich 411, 432; 684 NW2d 864 (2004), this Court has held that Waltz has full retroactive effect. Mullins, supra at 507-510. To allow a wholesale disregard of Waltz's retroactive application on the basis of individual "unfairness" to each plaintiff would allow the constant exceptions collectively to swallow the rule. See Devillers, supra at 586-587, 590 n 65. The delicate and specialized tool of judicial tolling is ill-suited to supplant the expansive, all-encompassing remedy of limiting a rule to prospective application. By proposing to apply judicial tolling to every medical malpractice wrongful death plaintiff who is "unfairly" subjected to the time limits clarified in Waltz, the rationale of Mazumder subverts, piecemeal, our decision that Waltz applies retroactively. Stated differently, if reliance on the pre-Waltz understanding of the law were alone sufficient to justify a litigant's failure to comply with Waltz's standards, our appellate courts would have limited the decision to prospective application. They did not. In our original decision in this case, as in Mazumder, plaintiff failed to demonstrate any inequity independent of his unknowing failure to comply with the retroactive -2- time limits delineated in Waltz. This "inequity" is inadequate to sustain a claim for judicial tolling, because it is directly related to plaintiff 's unassisted failure to comply with the retroactively applicable time restraints, not on intervening, external circumstances. See 51 Am Jur 2d, Limitation of Actions, § 174, pp 563-564, and § 177, p 565. Therefore, we adopt the reasoning contained in Ward, conclude that judicial tolling should not operate to relieve wrongful death plaintiffs from complying with Waltz's time restraints, and overrule those portions of Mazumder that conflict with this opinion. The circuit court's order granting summary disposition to defendants is affirmed. Sawyer, P.J., and Saad, Zahra, and Owens, JJ., concurred. /s/ David H. Sawyer /s/ Henry William Saad /s/ Brian K. Zahra /s/ Donald S. Owens Fort Hood, J., concurred in the result only. /s/ Karen M. Fort Hood -3-

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