Michigan Court of Appeals; Docket No. 137734; Published
Judges Doctoroff, Murphy, and Cavanagh; Unanimous
Official Michigan Reporter Citation: 199 Mich App 73; Link to Opinion 
STATUTORY INDEXING:
Statute of Limitations [§3135]
TOPICAL INDEXING:
Revised Judicature Act – Tolling of Statutes of Limitations (MCL 600.5851 – 600.5856)
CASE SUMMARY:
In this unanimous published Opinion, the Court of Appeals again dealt with the issue of when and under what circumstances is the three year tort statute of limitations tolled where the plaintiff alleges that a threshold injury was not discovered until after the three year limitation period had expired.
In the opinion by Judge Cavanagh, the Court of Appeals attempted to reconcile its earlier holdings in Mieike v Waterman (Item No. 861), Horan v Brown (Item No. 903), Hohendorfv Meagher (Item No. 1467), Sherrell v Bugaski (Item No. 1135), and Gagliardi v Flack (Item No. 1292). In doing so, the court recognized a distinction between "latent injuries" and "known injuries whose severity was misjudged." In the former, the "discovery doctrine" is available to toll the statute of limitations. In the latter, it is not. In so holding, the court stated:
"In our attempt at reconciliation, we can only conclude that the discovery doctrine is available in cases such as Mieike and Horan where the plaintiff alleges a latent injury, and not available in cases such as Gagliardi and Hohendorf, where the plaintiff misjudges the severity of a known injury or suffers consequent symptoms or ailments reasonably related to the originally known causally connected injury. To gain the protection of the discovery doctrine, we now hold that the plaintiffs must be able to show that there was no reason, by way of medical advice or otherwise, to associate their conditions with the trauma caused by the automobile accident and that even with the exercise of reasonable diligence, the causal connection would have remained unknown. Because we are presented in this case with allegations of a latent injury, we believe that the trial court erred in granting defendant's motion for summary disposition without first considering the discovery doctrine. On remand, the plaintiff will be given the opportunity to persuade the trial court that hers is an extraordinary case eligible for the application of the discovery rule."
The plaintiffs injury in this case constituted spondylosis of the cervical vertebra which was an allegedly latent result of an accident that occurred approximately three years and five months before plaintiff filed suit. Judge Murphy concurred, but wrote that were it not for the Administrative Order No. 1990-6, he would simply adopt his dissent in Gagliardi which held that the period of limitation does not start to run until the injured party knows, or in the exercise of reasonable diligence should have known, that the injury threshold has been reached under the no-fault statute. Judge Murphy would not draw the distinction between latent injuries and misjudged injuries.
