Michigan Court of Appeals; Docket #291153; Unpublished
Judges Owens, Whitbeck, and Fort Hood; Unanimous: Per Curiam
Official Michigan Reporter Citation: Not applicable; Link to Opinion 
On January 25, 2013, the Michigan Supreme Court REVERSED this decision in lieu of granting leave to appeal and REMANDED for entry of summary disposition in Defendant's favor; Link to Order
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
MCL 600.5852 - Tolling of Statute of Limitations During Appointment of Personal Representative
CASE SUMMARY:
In this unanimous unpublished per curiam opinion, the Court of Appeals affirmed the trial court’s denial of the defendant’s motion for summary disposition that the plaintiff’s negligence claim against the defendant estate was barred by the statute of limitations.
This case involves a complex procedural history and the arguments pursued by the parties are not fully explained in the court’s opinion.
The plaintiff in this case was injured when he was a passenger in a single-vehicle accident that occurred on August 26, 2005. The vehicle in which the plaintiff was a passenger was driven by Laura Gabriel, who died on October 27, 2007 from causes unrelated to the accident. On February 15, 2008, the plaintiff filed a complaint against Laura Gabriel alleging negligent operation of a motor vehicle. However, on May 8, 2008, the process server learned through Laura Gabriel’s neighbor, that Ms. Gabriel had died in October 2007. Soon thereafter, the plaintiff requested the issuance of a second Summons to account for the fact that an estate had not been opened for decedent Gabriel. On August 15, 2008, the plaintiff requested the issuance of a third Summons, because he opened an estate for the defendant on August 1, 2008, but could not serve as the personal representative of the estate due to a conflict of interest. Plaintiff’s counsel attempted to contact the public administrator for Sanilac County to serve as personal representative, but she was unwilling to do so. Ultimately, on August 14, 2008, the circuit court issued the plaintiff’s proposed Order for a third Summons. On September 9, 2008, the probate court apparently ordered the Sanilac County Public Administrator to serve as personal representative and letters of authority were issued on October 9, 2008.
On January 14, 2009, the personal representative of the estate filed a motion for summary disposition, alleging that the three-year statute of limitations, MCL 600.5805, expired on August 26, 2008 and the case was not filed until August 27, 2008. The personal representative further argued that at the time the case was filed, Ms. Gabriel was deceased and a personal representative had not been named. Therefore, the personal representative argued that there was no proper party in existence to sue at the time the complaint was filed. The plaintiff opposed the motion for summary disposition, arguing that the statute of limitations was tolled during the period in which the estate was without a personal representative and extended pursuant to MCL 600.5852. The plaintiff further argued that the complaint was filed seven months before the expiration of the statute of limitations.
Despite that the personal representative initially argued that the plaintiff’s claim was barred by the statute of limitations, pursuant to MCL 600.5852, somehow the only issue on appeal was whether the defendant was correct in arguing that the plaintiff’s claim was barred by the statute of limitations, pursuant to MCL 600.5852. It appears from the Opinion that the court ultimately determined that the defendant did not meet her burden in establishing that the plaintiff’s claim was barred by the statute of limitations under MCL 600.5852. The ultimate disposition of this confusing case is best explained in footnote 2 of the Opinion, wherein the court states the following:
“We note that at the hearing regarding the motion for summary disposition, counsel for the personal representative acknowledged that he had failed to perform any research regarding the reason for the amendment to MCL 600.5852 to address the rationale for removing language addressing a cause of action against an estate. MCL 700.3803 addresses the propriety of claims against an estate that arise before, at, or after death. The parties did not brief the propriety of this section, and therefore, we do not address it. Additionally, although the personal representative asserted that the issuance of a third summons was inappropriate, the personal representative did not respond to the allegations that she was aware of the second summons, but refused to act as the personal representative during that time period because she was not interested. Moreover, the issue of timeliness must be addressed in [the] context of MCL 700.3803. In light of the failure to sufficiently brief this issue and where it was not raised in the statement of questions presented, we do not address it . . . .”
