Lentini v. Urbancic

705 N.W.2d 701 (2005) 267 Mich. App. 579

Sam LENTINI, Personal Representative of the Estate of Lorraine Lentini, Plaintiff-Appellant,
v.
William R. URBANCIC, M.D., and Thomas K. Thomas, M.D., Defendants-Appellees.

Docket No. 246323.

Court of Appeals of Michigan.

Submitted May 9, 2005, at Lansing. Decided July 28, 2005, at 9:05 a.m. Released for Publication October 26, 2005.

Serman and Leh, P.C. (by John M. Leh), Detroit, for Sam Lentini.

Kerr, Russell and Weber, P.L.C. (by Joanne Geha Swanson), Detroit, for William R. Urbancic.

Siemion, Huckabay, Bodary, Padilla, Morganti & Bowerman, P.C. (by Raymond W. Morganti), Southfield, for Thomas K. Thomas.

Before: SMOLENSKI, P.J., and WHITE and KIRSTEN FRANK KELLY, JJ.

ON REMAND

SMOLENSKI, P.J.

In Lentini v. Urbancic, 262 Mich.App. 552, 686 N.W.2d 510 (2004) (Lentini I), we affirmed the trial court's grant of summary disposition for defendants under MCR 2.116(C)(7). However, in lieu of granting leave to appeal, our Supreme Court vacated the decision in Lentini I and remanded the case to this Court for reconsideration in light of Waltz v. Wyse, 469 Mich. 642, 677 N.W.2d 813 (2004). Lentini v. Urbancic, 472 Mich. 885, 695 N.W.2d 66 (2005) (Lentini II). On remand, we again affirm the trial court's decision to grant summary disposition.

Plaintiff, as the personal representative of his deceased wife's estate, filed a complaint alleging medical malpractice against defendants on April 17, 2002. Lentini I, supra at 555, 686 N.W.2d 510. The period of limitations is two years for an action charging malpractice. M.C.L. § 600.5805(6). Plaintiff's wife passed away on April 11, 1999. Lentini I, supra at 554, 686 N.W.2d 510. Therefore, plaintiff had until April 11, 2001, to file a malpractice claim within the applicable period of limitations. However, under M.C.L. § 600.5852,

[i]f a person dies before the period of limitations has run or within 30 days after the period of limitations has run, an action which survives by law may be commenced by the personal representative of the deceased person at any time within 2 years after letters of authority are issued although the period of limitations has run. But an action shall not be brought under this provision unless the personal representative commences it within 3 years after the period of limitations has run.

Plaintiff's letters of authority making him the personal representative of his wife's estate were signed on October 15, 1999, but were certified and mailed to plaintiff on October 19, 1999. Lentini I, supra at 554-555, 686 N.W.2d 510. Consequently, under M.C.L. § 600.5852, plaintiff had until either October 15, 2001, or October 19, 2001, to file the malpractice claim, depending on which date the letters of authority were deemed issued.

On October 12, 2001, plaintiff filed a "Notice of Intent to File Suit" against defendants as required by M.C.L. § 600.2912b. Lentini I, supra at 554, 686 N.W.2d 510. Plaintiff argued that he had until April 19, 2002, to file his claim because the period under M.C.L. § 600.5852 was tolled for 182 days under M.C.L. § 600.5856(d)^[1] by the filing of notice and because the letters of authority were issued on the date they were certified and mailed. While this Court accepted that M.C.L. § 600.5856(d) tolled the period described under M.C.L. § 600.5852, we disagreed with plaintiff's contention that the letters of authority were issued on October 19, 1999. We held that the letters of authority were issued on the date signed. Lentini I, supra at 555, 686 N.W.2d 510. Consequently, we determined that plaintiff's filing on April 17, 2002, was untimely by two days. Id.

In Lentini II, our Supreme Court vacated the decision of this Court in Lentini I and instructed this Court to reconsider our decision in light of Waltz. In Waltz, our Supreme Court held that M.C.L. § 600.5856(d) is properly applicable only to statutes of limitation or repose. Waltz, supra at 650, 677 N.W.2d 813. The Court further held that, because M.C.L. § 600.5852 is not a statute of limitations, but is a saving provision, M.C.L. § 600.5856(d) does not toll the two-year period within which a personal representative may file a claim on behalf of a decedent under M.C.L. § 600.5852.^[2]Waltz, supra at 650-652, 677 N.W.2d 813. Hence, under Waltz,^[3] plaintiff's filing of notice pursuant to M.C.L. § 600.2912b after the expiration of the malpractice period of limitations did not toll either the original period of limitations or the period applicable under the saving provision of M.C.L. § 600.5856(d). Consequently, plaintiff had to file his claim by either October 15, 2001, or October 19, 2001, depending on the date the letters of authority are deemed issued. Because plaintiff filed the claim long after either of those dates, the claim was untimely.

Affirmed.

NOTES

[1] This section was amended by 2004 PA 87, effective April 22, 2004, but that amendment does not apply to this case. The provision is now found at M.C.L. § 600.5856(c).

[2] We note that the applicable period under M.C.L. § 600.5852 is two years. The three-year period mentioned in the statute is a limitation on the two-year saving period and does not establish an independent period within which the personal representative may bring suit. See Farley v. Advanced Cardiovascular Health Specialists, PC, 266 Mich.App. 566, 573 n. 16, 703 N.W.2d 115 (2005).

[3] The decision in Waltz applies retroactively. See Ousley v. McLaren, 264 Mich.App. 486, 493-495, 691 N.W.2d 817 (2004).