Michigan Court of Appeals; Docket No. 95962; Published
Judges Wahls, Gillis, and Doctoroff; Unanimous
Official Michigan Reporter Citation: 169 Mich App 10; Link to Opinion 
STATUTORY INDEXING:
Statute of Limitations [§3135]
TOPICAL INDEXING:
Collateral Estoppel and Res Judicata
CASE SUMMARY:
In this unanimous Opinion by Judge Doctoroff (which is the second appeal of Item No. 802), the court held that plaintiff ‘s tort claim alleging serious impairment of body function was barred by res judicata and the statute of limitations. Plaintiff was injured in an accident occurring on January 7, 1979. She filed a lawsuit on April 24, 1980, seeking recovery in tort for non-economic losses. Plaintiff’s suit was dismissed on January 13, 1983 pursuant to defendant's motion for summary judgment on the basis that plaintiff had not sustained serious impairment of body function as a matter of law. That decision was affirmed in the pre-DiFranco case of Sherrell v Bugaski, 140 Mich App 708 (1984).
On November 21,1985, plaintiff discovered that she had sustained a herniated disc which she alleges was a result of the 1979 accident Accordingly, on May 8,1986, plaintiff once again filed a third-party tort action against defendants. Defendants filed a motion for summary disposition which was denied. The Court of Appeals held that this denial was erroneous and therefore reversed the trial court and granted judgment for defendants.
The court held that plaintiff’s tort claim was barred under the doctrine of res judicata because the specific matter was raised in the first lawsuit and was adjudicated in that earlier case. In so holding, the court stated, "here, as in the first lawsuit, plaintiff is again suing defendants for negligence in operating a motor vehicle. The previous suit was dismissed expressly on the issue of lack of damages. Simply because the facts on the issue of plaintiff s damages have been changed does not bar the application of res judicata.... We therefore conclude that plaintiff’s change in physical condition does not warrant suspending the application of res judicata to bar her claim."
The court also ruled that plaintiff’s claim was barred by the statute of limitations set forth in MCLA 600.5805. The claim was not filed within three years of the date of the accident, but rather seven and one-half years later. Contrary to plaintiff’s argument, the claim did not accrue in May of 1985 when she discovered her herniated disc, but rather, it accrued when she filed her first lawsuit in April, 1980. That claim was dismissed on motion by defendant and the dismissal was an adjudication on the merits. Plaintiff’s reliance on Horan v Brown (Item No. 903) was, therefore, misplaced.
