Honig v. Liddy , 199 Mich. App. 1 ( 1993 )

199 Mich. App. 1 (1993) 500 N.W.2d 745

HONIG
v.
LIDDY

Docket No. 141183.

Michigan Court of Appeals.

Submitted March 2, 1993, at Detroit. Decided March 16, 1993, at 9:25 A.M.

Welch, MacAlpine, Bahorski, Bieglecki & Farrell, P.C. (by John B. Farrell), for the plaintiff.

Collins, Einhorn & Farrell, P.C. (by Kenneth C. Merritt and Noreen L. Slank), for the defendants.

Before: WAHLS, P.J., and WEAVER and CORRIGAN, JJ.

PER CURIAM.

In this negligence action, plaintiff appeals as of right from an order of the Wayne Circuit Court that granted defendants' motion for summary disposition, brought pursuant to MCR 2.116(C)(7). The trial court held that plaintiff's action was barred by the expiration of the period of limitation. We agree and affirm.

Plaintiff^[1] suffered a head injury in a horse-riding accident on March 7, 1987. According to an affidavit filed in opposition to defendants' motion, "at least through May of 1987, [plaintiff] was not yet capable of functioning with the cognitive abilities attendant to her pre-injury condition." The parties assume that plaintiff was disabled for at least ten weeks after the accident and that she recovered, at least to the point where she was no longer incompetent, by the end of 1988. Plaintiff filed her complaint on May 21, 1990.

The parties agree that the three-year statute of limitations, MCL 600.5805(8); MSA 27A.5805(8), applies to this case. Plaintiff's complaint was filed three years and ten weeks after her claim accrued. The question is whether plaintiff may avoid the statute's bar by resort to MCL 600.5851(1); MSA 27A.5851(1), which provides, in part:

[I]f the person first entitled to ... bring an action is under 18 years of age, insane, or imprisoned at the time the claim accrues, the person... shall have 1 year after the disability is removed through death or otherwise, to ... bring the action although the period of limitations has run.

Subsection 5 of the statute refers to the one-year period as "the year of grace." MCL 600.5851(5); MSA 27A.5851(5).

Plaintiff claimed, and for the purpose of the motion defendants did not dispute, that her injuries rendered her "insane" within the meaning of § 5851, which is to say, incompetent. Plaintiff argued that, under § 5851, the running of the three-year limitation period was tolled during the time she was disabled. The trial court disagreed, holding that plaintiff had either three years from the day of her injury or one year from the day her disability ended to file her complaint. Because plaintiff's complaint was untimely under either of these alternatives, defendants were granted summary disposition. Plaintiff now appeals, and again argues that her disability tolled the running of the three-year period of limitation.

Some published opinions of this Court in which the issue we face was not raised have unfortunately referred to § 5851 as a provision "which tolls the statute of limitations." Hawkins v Justin, 109 Mich. App. 743, 746; 311 NW2d 465 (1981). See also Geisland v Csutoras, 78 Mich. App. 624; 261 NW2d 537 (1977). We believe that this generalization is incorrect; perhaps a more accurate description of § 5851 is found in the statute itself — a year of grace.

Section 5851 does not expressly provide for the tolling of the general statute of limitations. Rather, it allows disabled plaintiffs additional, separate protection from the bar of the statute of limitations, protection that is independent of the running of the statute. By its terms, § 5851 allows plaintiffs under certain disabilities to bring an action "1 year after the disability is removed ... although the period of limitations has run." Id. The clear meaning of the emphasized language is that § 5851 does not toll the running of the statute of limitations, but instead exempts certain claims from the bar of the statute. Because plaintiff did not file her complaint within the three-year period of limitation or within one year after her disability was removed, her claim is barred. See Kelly v Richmond, 156 Mich. App. 699, 703-704; 402 NW2d 73 (1986).

Affirmed.

NOTES

[1] Diana Honig is the only party plaintiff. Although her husband was later included as a plaintiff on pleadings in the trial court, he was never added as a party and no claim was ever pleaded on his behalf.