DOREEN BINT V ROGER BROCK
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STATE OF MICHIGAN
COURT OF APPEALS
DOREEN BINT and ROBERT BINT,
FOR PUBLICATION
February 6, 2007
9:15 a.m.
Plaintiffs-Appellees,
v
ROGER DOE, USF HOLLAND, INC., TST
SOLUTIONS, INC., USF LOGISTICS, INC.,
US FREIGHTWAYS, INC., US FREIGHTWAYS
CORP., THOMAS NATIONWIDE TRANSPORT,
and KPN, INC.,
No. 266242
Huron Circuit Court
LC No. 02-001746-NI
Defendants,
and
Official Reported Version
ROGER BROCK and CON-WAY
TRANSPORTATION SERVICES, INC.,
Defendants-Appellants.
Before: Zahra, P.J., and Cavanagh and Schuette, JJ.
ZAHRA, P.J. (concurring).
I concur in the result reached and the reasoning employed in the majority opinion. I write
separately because I disagree with the conclusion reached in Staff v Johnson, 242 Mich App 521;
619 NW2d 57 (2000), that there is a conflict between MCR 2.112(K) and MCL 600.2957(2).1
1
I recognize that MCR 7.215(J)(1) requires that all panels of this Court follow the rule of law
established in prior published decisions. However, a prior published decision need not be
followed if it does not dictate the outcome of the subsequent case. MCR 7.215(J)(3)(a). As
noted in the majority opinion, Staff is distinguishable from the present case because the notice
requirements of MCR 2.112(K) were satisfied in the present case and they were not satisfied in
Staff. In Staff, supra at 533-534, the majority held that "[b]ecause plaintiff failed to comply with
the notice requirements and the litigation against defendants was commenced after the statutory
(continued…)
-1-
In Staff, the plaintiff argued that MCL 600.2957(2) extended the period of limitations for
parties added pursuant to MCR 2.112(K). Staff, supra at 530. This Court rejected the literal
meaning of the statute and concluded that the statute conflicts with the court rule. Id. at 531.
This Court further concluded that statutes of limitations are procedural, and, therefore, the court
rule prevails over the statute. Id. at 533.
Staff wrongly concluded that a conflict exists between the court rule and the statute. A
conflict does not exist merely because the court rule uses the permissive word "may" while the
statute uses the mandatory word "shall." The court rule addresses the conduct of the parties. A
party served with a notice of a nonparty being at fault may file an amended pleading within 91
days of receipt of the notice. The permissive word "may" is used in the court rule because a
plaintiff controls his or her pleadings and cannot be required to amend a complaint. By contrast,
the statute is directed at the conduct of the court. The statute provides that if a plaintiff elects to
file a motion to amend within 91 days of receipt of a notice of a nonparty being at fault, the court
"shall grant leave to the moving party . . . ." MCL 600.2957(2).
The statute and the court rule are consistent. The plaintiff may elect to amend the
complaint. If the plaintiff so elects, the court shall grant the amendment. There being no conflict
between the statute and the court rule, we are bound to implement the remainder of MCL
600.2957(2), which provides that a "cause of action added under this subsection is not barred by
a period of limitation unless the cause of action would have been barred by a period of limitation
at the time of the filing of the original action."
Applying this statutory provision to the facts of the present case, it is clear that the cause
of action asserted against defendants, although brought nine years after the events occurred, is
timely because the claim against defendants, had it been asserted in the original action, would
have been timely. If the Legislature did not intend such stale claims to be initiated under MCL
600.2957(2), it is for the Legislature, not the courts, to say so.
/s/ Brian K. Zahra
(…continued)
two-year period, we reverse . . . ." (Emphasis added). While the language employed by the
majority opinion in Staff was very broad as it related the alleged conflict between the court rule
and the statute, the holding was premised on the plaintiff 's failure to comply with the notice
requirements of MCR 2.112(K).
-2-
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