Michigan Court of Appeals; Docket No. 110246; Unpublished
Judges Griffin, MacKenzie, and Murphy; 2-1; (Judge Murphy Dissenting)
Official Michigan Reporter Citation: Not Applicable; 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 2-1 decision written by Judge Griffin, the Court of Appeals held that the three year statute of limitations for negligence actions was not tolled in an auto negligence case until such time as the plaintiff discovered or should have discovered that his injuries were of a sufficient severity to exceed the no-fault tort threshold. The court drew an important distinction between "latent diseases" and situations involving a known injury, the severity of which has been misjudged by the plaintiff.
In this particular case, plaintiff sustained an injury to his right wrist in an automobile accident. X-rays taken approximately two weeks after the accident revealed an aggravation of an arthritic condition and fibromyositis secondary to trauma. Plaintiff was totally disabled for approximately six weeks as a result of his injury. Approximately two and one-half years after the accident, plaintiff underwent serious wrist surgery at which time a silastic joint prosthesis was implanted. It should be noted that plaintiffs wrist surgery and the expiration of the three year statute of limitations occurred while the Supreme Court decision in Cassidy v McGovern was still controlling law. Apparently, plaintiff did not believe his wrist disability constituted a serious impairment of body function until he filed his lawsuit approximately two months after the three year statute of limitations had expired.
Citing New Jersey case law doctrine, the court held that had plaintiff sustained a latent disease such as epilepsy, Parkinson's, etc. that could not have been discovered until after the statute of limitations expired, then perhaps the statute would have been tolled. However, this is not one of these cases. The court stated:
“... the New Jersey Court created an exception to the statute of limitations for latent diseases. The New Jersey Appeals Court, however, also cautioned that the exception did not extend to known injuries. Further, the statute of limitations is not tolled if the plaintiff misjudges the severity of his injuries. Unlike the latent' disease cases (Parkinson's disease, epilepsy, facial paralysis), the instant case involved a known injury which was diagnosed approximately two weeks following the accident X-rays taken on August 30, 1982 revealed degenerative arthritis aggravated by recent trauma. Plaintiff further admitted that he was made aware of such x-ray results. Unlike the cases relied upon by the plaintiff, the wrist injury at issue was immediately known."
The court also distinguished this case from the previous Court of Appeals decisions in Mielke v Waterman (Item No. 861) and Horan v Brown (Item No. 903) for the reason that those cases involved latent diseases. However, the court did take exception to what it considered to be overly broad language in Mielke and Koran, "which appears to apply the tolling doctrine to the entire spectrum of auto accident injuries. We expressly disagree with Mielke and Horan on this issue and conclude that it would be unwise public policy to apply a tolling doctrine to no-fault liability claims."
Judge Murphy dissented. He noted that had the plaintiff filed his lawsuit prior to the surgical implant, he very likely would have been unable to meet the serious impairment threshold which was then controlled by Cassidy. This would have been an unjust result Judge Murphy stated that an auto negligence cause of action should not accrue until the party meets the serious impairment threshold. Once that threshold is met, it is from that date that the three year statute of limitations should apply. Judge Murphy believed that the majority opinion is contrary to public policy in that it will encourage accident victims to file suit and then prolong litigation and wait to see what the full extent of the injuries will be.
