Michigan Court of Appeals; Docket # 348086; Unpublished
Judges Riordan, Fort Hood, and Swartzle; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
Revised Judicature Act – Tolling of Statute of Limitations (MCL 600.5851 – 600.5856)
SUMMARY:
In this unanimous unpublished per curiam decision, the Court of Appeals affirmed the trial court’s summary disposition order dismissing the plaintiff’s declaratory action seeking a declaration that it was not liable to pay the defendant’s no-fault PIP benefits. The defendant, Velina Moskwa, was injured in a motor vehicle collision in 2010, and filed a first-party action against the plaintiff, Allstate Property and Casualty Company, shortly thereafter. The parties reached a settlement in that prior action, then eight years later, Allstate filed this declaratory action contending that Moskwa’s vehicle was uninsured at the time of the 2010 collision and that it was therefore not liable to pay Moskwa’s PIP benefits. The Court of Appeals determined, however, that the applicable statutory limitation period contained in MCL 600.5807 is six years, and rejected Allstate’s argument that the statutory limitation period was tolled by Moskwa’s prior first-party action. Thus, the trial court properly dismissed Allstate’s complaint.
Allstate argued that the tolling provision in MCL 600.5856 applied to the present case. That statute provides:
The statutes of limitations or repose are tolled in any of the following circumstances:
(a) At the time the complaint is filed, if a copy of the summons and complaint are served on the defendant within the time set forth in the supreme court rules.
(b) At the time jurisdiction over the defendant is otherwise acquired. [MCL 600.5856(a) and (b).]
In interpreting MCL 600.5856, the Court of Appeals relied on one of its own prior decisions and a prior decision of the Supreme Court: Sherrell v. Bugaski, 169 Mich. App 10 (1988) and Mair v. Consumers Power Co., 419 Mich. 74 (1984). The Courts in those two cases provided, respectively:
This statute permits the tolling of the statute of limitations during the pendency of a prior suit between the parties where the prior action was not adjudicated on the merits.
* * *
Subsections [a] and [b] of the tolling statute allow a lawsuit to go forward notwithstanding the statute of limitations when the defendant has already received notice of the allegations against him as a result of the prior lawsuit.”
The Court of Appeals ruled in this case that because of the disparate nature of the two cases—i.e. the fact that the parties were on opposite sides in the Moskwa’s prior lawsuit—and because Moskwa was not presented of any “notice of the allegations that would be made against her in this [declaratory action]” in her prior lawsuit, the tolling statute did not apply.
We are inclined to agree with the trial court that this case does not implicate the tolling statute because of the disparate nature of the two cases, as well as the dissimilar positions of the parties between the cases. Defendant was the plaintiff in the former lawsuit, not the defendant. And, we note defendant’s contention on appeal—a contention plaintiff does not dispute—that this lawsuit is the first time plaintiff has made the allegation that defendant’s Mercury was actually uninsured at the time of the accident. More importantly, however, plaintiff has simply failed to present any evidence that the former lawsuit provided defendant any notice of the allegations that would be made against her in this lawsuit. See id. See also Affiliated Bank of Middleton v Am Ins Co, 77 Mich App 376, 378-380; 258 NW2d 232 (1977) (explaining that tolling generally requires, at a minimum, that the plaintiff in the subsequent lawsuit stand in the same position and represent the same interest as the plaintiff in the earlier suit).
Here, plaintiff makes no attempt at arguing that it stands in the same position or represents the same interests as the plaintiff (the defendant in this case) from the prior lawsuit. That may be due to the inherent irrationality of that idea, but in any event, plaintiff cites no caselaw exemplifying an application of the tolling statute remotely similar to the manner it seeks to apply the statute in this case. We agree with the trial court that the tolling statute did not apply in this case, and accordingly, conclude that the trial court did not err in dismissing plaintiff’s complaint under MCR 2.116(C)(7).
