Michigan Court of Appeals; Docket #322701; Unpublished
Judges Gadola, Jansen, and Beckering; 2-1 (Judge Beckering concurring); Non-unanimous; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
Link to Concurrence
STATUTORY INDEXING:
Liability for Economic Loss Caused by Uninsured Tortfeasors [§3135]
Limitations Period for PPI Claims [§3145(2)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this non-unanimous unpublished per curiam Opinion (with Judge Beckering concurring) involving a property damage claim against a cement company, the Court of Appeals held:
1) the filing of a “John Doe” complaint against an unknown insurer did not satisfy the notice requirements in MCL 500.3145(2), and plaintiff was properly precluded from amending its complaint listing the specific insurer, once identified, after the expiration of §3145(2)’s one-year notice period;
2) the notice period §3145(2) was not tolled because it is well-settled that the filing of a “John Doe” complaint does not toll the statute of limitations;
3) defendant’s failure to argue in its answer or affirmative defenses that MCL 500.3135(3) abolished its tort liability did not constitute a waiver of the argument because it was not an affirmative defense and, therefore, was not waivable; and
4) defendant was not judicially estopped from asserting the argument that it had no-fault coverage because it had not adopted or otherwise made prior arguments that conflicted with this position.
The defendant, Theut Products, Inc., owned a cement truck that accidentally brought down several utility poles owned by plaintiff DTE Energy. The truck was reportedly insured with EMC Insurance. When plaintiff tried to locate the insurer, it found two carriers with “ECM” in their names; however, those companies merged and changed their name to Socius Insurance Agency Services, Inc. Plaintiff then brought this action seeking property protection (PPI) benefits, citing “John Doe Insurance Company” (JDIC) as the insurer. Defendant claimed the statute of limitations in §3145(2) had expired, thereby barring plaintiff’s claim. When plaintiff ultimately identified the proper insurance company, plaintiff filed a motion to amend its complaint to include the correct insurer, EMC. The trial court denied the motion, finding that plaintiff had failed to notify EMC of the claim within one year, pursuant to §3145(2). Defendant moved for summary disposition, arguing it was not liable because it had maintained the proper no-fault security, through EMC, as required by MCL 500.3101. The trial court granted defendant’s motion. As to EMC, the trial court held that plaintiff failed to act diligently when attempting to find out what carrier actually insured defendant. On appeal, plaintiff argued the trial court should have permitted it to amend its complaint.
The Court of Appeals held that plaintiff’s request to amend its complaint was properly denied, finding the one-year limitations period in §3145(2) was not tolled. In this regard, the court said:
“The limitations period in MCL 500.3145(2) was not tolled. ‘The filing of a “John Doe” complaint does not toll the statute of limitation with respect to parties not yet specifically named.’ … Thus, the filing of the complaint against JDIC did not toll the limitations period with regard to EMC. … Furthermore, even assuming that the filing of the ‘John Doe’ complaint could have tolled the limitations period, plaintiff failed to serve a copy of the summons and complaint on the insurance company. … Finally, the court did not otherwise acquire jurisdiction over the insurance company since the insurance company failed to appear in the case …. Therefore, the one-year limitations period was not tolled when plaintiff filed the ‘John Doe’ complaint.”
In so holding, the Court of Appeals reasoned the “misnomer doctrine” did not apply because plaintiff was seeking to add an entirely new party, since service was never effectuated on the correct party.
Regarding the argument that summary disposition was improper on plaintiff’s §3135(3) claim, the Court of Appeals disagreed and said:
“MCL 500.3135(3) abolishes tort liability stemming from the ownership, use, or maintenance of a motor vehicle in the state for which security was obtained under MCL 500.3101, with several exceptions that plaintiff does not claim apply in this case. Theut provided evidence that it maintained security for the payment of benefits under MCL 500.3101(1) since it produced the no-fault policy that was in effect during the incident. Thus, MCL 500.3135(3) abolished Theut’s tort liability stemming from the use of the cement truck.”
Regarding plaintiff’s claim that defendant was required to argue that §3135(3) abolished its tort liability in its answer or notice of affirmative defenses, the Court of Appeals disagreed. In this regard, the court said:
“The abolishment of tort liability under MCL 500.3135(3) is not an affirmative defense. It is not listed as an example of an affirmative defense under MCR 2.111(F)(3)(a). Additionally, Theut did not seek to avoid the legal effect of or defeat plaintiff’s claim under MCR 2.111(F)(3)(b). Theut never admitted in its answer that the allegations in plaintiff’s complaint were true or that plaintiff established a prima facie case against it. … Rather, MCL 500.3135(3) was the governing law that abolished Theut’s tort liability in the case. … Furthermore, Theut prevented surprise when it stated in its notice of affirmative defenses that ‘[p]art or all of the damages sought by the Plaintiff may not be recoverable under the applicable law.’ … Therefore, Theut’s claim that MCL 500.3135(3) abolished its liability was not an affirmative defense, and Theut did not waive the argument that MCL 500.3135(3) bars plaintiff’s claim.”
Regarding the judicial estoppel argument, the Court of Appeals said:
“The trial court also did not err in allowing Theut to adopt the position that it had no-fault insurance coverage. ‘Judicial estoppel precludes a party from adopting a legal position in conflict with a position taken earlier in the same or related litigation. The doctrine protects the integrity of the judicial and administrative processes.’ … Theut did not adopt a legal position that was in conflict with another position that it took earlier in the case when it stated in its response to plaintiff’s motion to amend the complaint that its insurer was EMC. Instead, Theut maintained that EMC was its insurer throughout the proceedings. Furthermore, the identity of Theut’s insurer was a factual issue, rather than a legal issue. … Additionally, the trial court’s decision to deny plaintiff’s motion to amend the complaint was based on plaintiff’s failure to bring the claim against the insurance company within the one-year limitations period. The precise name of the insurance company was irrelevant to the trial court’s decision. Accordingly, the trial court properly granted summary disposition in favor of Theut.”
Accordingly, the Court of Appeals affirmed the trial court’s decision.
Judge Beckering concurred in the result only.
