Michigan Court of Appeals; Docket # 344720; Unpublished
Judges Shapiro, Gleicher, and Swartzle; Per curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
Revised Judicature Act – Tolling the Statute of Limitations (MCL 600.5851 – 600.5856)
SUMMARY:
In this unanimous unpublished per curiam decision involving a third party claim against a deceased tortfeasor, the Court of Appeals affirmed the trial court’s order dismissing the plaintiffs’ lawsuit, because the plaintiffs originally filed the lawsuit against the decedent, himself, as opposed to the decedent’s estate, and did not file a motion for substitution of party until after the three-year statute of limitations expired. It is not possible to sue a deceased person in Michigan, and the plaintiffs were aware that the named defendant was deceased prior to filing their original action. An estate was not opened for the decedent until more than three years after the collision giving rise to the plaintiffs’ action, at which point the plaintiffs attempted to substitute the estate as a party. By that time, however, the statute of limitations had run, and the plaintiffs’ action was therefore barred.
On January 8, 2015, the plaintiffs, Nadia Packard and Tony Packard, were injured in a motor vehicle collision caused by the defendant, Paul Brown. On June 3, 2017, Paul Brown died, and six months thereafter, on January 3, 2018—just five days before the statute of limitations was set to expire—the Packards filed a negligence and loss of consortium claim against Brown and a claim for uninsured and underinsured motorist coverage against their insurer, Westfield Insurance Company. The Packards knew that Brown was deceased when they filed their lawsuit, and explored the possibility of opening an estate for him. They decided not to, however, determining that the probate court probably would not open one before January 8, 2018—the last day in which they could file a lawsuit arising out of the collision.
Nine days after they filed their complaint, the Packards filed a statement with the trial court revealing Brown’s death, and on January 23, 2018, the probate court opened an estate for Brown. The Packards’ counsel, Gary Bloom, was named as the estate’s personal representative. Bloom then notified Brown’s insurer of the existence of the lawsuit against him, and Brown’s insurer hired legal counsel to appear, ostensibly, on Brown’s behalf.
On February 6, 2018, the Packards filed a motion for a substitution of party, alleging that such a substitution was authorized under MCR 2.202 and MCL 600.5852, and requesting that the trial court issue a new summons in the name of the estate so that the Packards could effectuate service on the estate. Westfield filed a brief opposing the Packards’ motion for substitution, but before oral arguments were heard on the motion, the parties stipulated for Westfield to be dismissed with prejudice.
Sometime later, counsel for Brown’s insurer filed an appearance, an answer to the plaintiffs’ complaint, affirmative defenses, and a reliance on the Packards’ jury demand. The Court of Appeals noted that:
the trial court never addressed whether counsel for Brown’s insurer properly represented Brown, given that Brown was deceased, the probate court had opened a decedent’s estate for Brown and appointed a personal representative for that estate, and counsel for Brown’s insurer clearly did not represent the etate. It is unclear to this court how counsel for Brown’s insurer could have validly represented Brown in the trial court, when Brown died over eight months before counsel became involved in the lawsuit.
Counsel for Brown’s insurer proceeded to participate in the lawsuit, nonetheless, and filed a response opposing the Packards’ motion for a substitution of party, arguing that the Packards’ action was barred by the expiration of the statute of limitations and that the tolling provision of MCL 500.5852(1) did not apply. Brown’s counsel also argued that the trial court ought to remove the personal representative appointed by the probate court because Gary Bloom was attempting to simultaneously represent both the plaintiffs and the defendant—a clear conflict of interest.
Ultimately, the trial court denied the plaintiff’s motion to substitute Brown’s estate as a defendant, and dismissed the lawsuit entirely, holding that the limitations period expired before an estate was opened and a personal representative appointed.
On appeal, the Packards first argued that the trial court lacked jurisdiction to challenge the decision of the probate court to appoint Gary Bloom as the personal representative of Brown’s estate. The Court of Appeals agreed, finding that the trial court “had no authority to disturb the probate court’s appointment of plaintiff’s counsel as the personal representative for Brown’s estate.” However, this issue was not relevant to the trial court’s denial of the Packards’ motion for substitution of party and dismissal of the Packards’ lawsuit based on the expiration of the statute of limitations.
Next, the Packards argued that even in spite of a “procedural imperfection”—naming Brown as the defendant in the original filing, as opposed to Brown’s estate—the trial court should have allowed the estate to have been substituted after it was created. The Packards essentially argued that the statute of limitations was tolled by their improper filing, and that “the opening of the decedent’s estate after the expiration of the limations period should somehow relate back to the date of her improper filing.” The Court of Appeals disagreed:
Yet, because a deceased person cannot be sued as a matter of law and because plaintiff never filed suit against the decedent’s estate, we conclude that plaintiff’s action was nonetheless barred by the expiration of the limitations period.
The Court of Appeals determined that the applicable statute of limitations for the Packards’ claim, found in MCL 600.5852(1), was inapplicable to the plaintiff’s lawsuit, because that statute “authorizes the personal representative of an estate an additional two years in which to file an action, despite the expiration of the applicable limitations period for that action, if the decedent passed away either before the limitations period expired.” Since this lawsuit was not brought by the representative of Brown’s estate, 600.5852(1) did not toll the applicable limitations period.
The Court of appeals next determined that MCL 600.5856 did not toll the limitations period, because that statute requires that a copy of the summons and complaint be served on the defendant. The Court pointed out that, “[a]lthough plaintiff filed a complaint, she did not serve it on Brown—it was physically impossible to do so because Brown was already deceased. Furthermore, the trial court never acquired jurisdiction over Brown because he was already deceased when plaintiff filed the complaint.”
Lastly, the Court of Appeals rejected the Packards’ argument that, once Brown died, MCL 700.3802(2) suspended the three-year limitations period. 700.3802(2) provides:
The running of a statute of limitations measured from an event other than death or publication for a claim against a decedent is suspended during the 4 months following the decedent’s death but resumes after that time as to a claim not barred under this part.
Thus, the statute of limitations in this case was tolled for four months following Brown’s death, at which point it began to run again, changing the expiration date to May 8, 2018. The Packards’ never actually filed a separate lawsuit against the state prior to the adjusted expiration date, and therefore, MCL 700.3802(2) did not save their lawsuit.
Because MCL 700.3802(1) does not bar plaintiff’s claim, MCL 700.3802(2) provides that the running of the limitations period was “suspended” during the four months following Brown’s death. Therefore, the limitations period was suspended from June 3, 2017 to October 3, 2017, at which time it began to run again, and it subsequently expired on May 8, 2018—four months later than it would have expired but for Brown’s death. See Potter, unpub op at 6.
Yet, critically, plaintiff never sued the estate. Plaintiff’s January 3, 2018 filing of this lawsuit against Brown cannot serve as the filing of a lawsuit against Brown’s estate because “a proceeding to enforce a claim against a decedent’s estate . . . shall not be commenced before the appointment of a personal representative,” which occurred on January 23, 2018. Nothing the trial court did in this case precluded plaintiff from filing a separate lawsuit against the estate before May 8, 2018. Although the three-year limitations period applicable to this action was suspended by operation of MCL 700.3802(2), plaintiff did not file suit against the estate before the limitations period expired. Therefore, MCL 700.3802(2) does not save plaintiff’s lawsuit.
