Stephens v. Dixon
Stephens v. Dixon
Opinion of the Court
Plaintiff appeals as of right from the trial court’s order that granted defendant’s motion for summary disposition based upon the three-year statute of limitations for negligence actions. MCL 600.5805(1) and (8); MSA 27A.5805(l)and (8). We reverse and remand for further proceedings.
On June 23, 1987, plaintiff was involved in an automobile accident. Although plaintiff was thrown about the passenger compartment and lost consciousness, she recovered within a period of weeks and believed that she had suffered no long-term injuries. In February of 1989, plaintiff started having neck pain, which increased in severity until she sought medical attention in December. The diagnosis was spondylosis of the neck vertebrae, an alleged latent result of the accident that had occurred in 1987.
On November 20, 1990, plaintiff filed her complaint, and on December 18, 1990, defendant moved for summary disposition. According to the
In Mielke v Waterman, 145 Mich App 22; 377 NW2d 328 (1985), the plaintiff was injured in an automobile accident on August 19, 1977. In his lawsuit, filed on November 22, 1983, the plaintiff alleged that a serious impairment of body function, epilepsy caused by posttraumatic scarring of the brain, first manifested itself on May 3, 1982. Consequently, the plaintiff argued that his cause of action accrued on that date and was not time-barred. This Court agreed and went on to explain that the plaintiff’s cause of action did not accrue "until he could allege all of the essential elements of the cause of action in a proper complaint.” Id. at 26.
In Horan v Brown, 148 Mich App 464; 384 NW2d 805 (1986), the plaintiff suddenly and unexpectedly experienced facial paralysis that resulted from an automobile accident she had been involved in four years earlier. Relying on Mielke, this Court again held that the period of limitation was tolled by operation of the discovery rule. Id. at 468.
In a somewhat different factual setting, this Court repeated its agreement with the proposition that a cáuse of action under the no-fault act does not accrue until the person discovers or should
In Hohendorf v Meagher, 188 Mich App 400; 470 NW2d 418 (1991), a case with almost the same facts as Sherrell, the plaintiffs’ negligence action, based on soft-tissue back and neck injuries, was filed on April 18, 1984, and was dismissed, apparently because the court found that the injured plaintiff had not sustained a serious impairment of body function. The plaintiffs’ second negligence action, based on a recently diagnosed herniated disc, was filed on July 18, 1989, and was also dismissed. On appeal, this Court concluded that the period of limitation for the plaintiffs’ cause of action had not been tolled until discovery of the herniated disc. Id. at 403.
In arriving at its decision, the Hohendorf Court relied on Gagliardi v Flack, 180 Mich App 62; 446 NW2d 858 (1989), for the proposition that "in an automobile negligence case, the statute of limitations is not tolled until such time as the plaintiff discovered or should have discovered that his injury constituted a serious body function.” Hohendorf, supra at 403.
In Gagliardi, the plaintiff injured his wrist in an
The apparent split of authority occasioned by Gagliardi and Mielke was certified to the Supreme Court, and leave to appeal was denied because the Supreme Court was "not persuaded that an actual conflict presently exist[ed] in the Court of Appeals.” 433 Mich 923 (1989). The only distinguishing feature that we can find that would be consistent with the Supreme Court order and at the same time reconcile the two lines of authority appears to be a narrow exception that would toll the period of limitation with respect to latent diseases, an exception discussed in Gagliardi and recognized earlier by a New Jersey court. Gagliardi, supra at 72-73, citing Mancuso v Mancuso, 209 NJ Super 51; 506 A2d 1253 (1986).
In Mancuso, the plaintiff was involved in an automobile collision and "sustained what appeared to be superficial soft tissue injuries of minimal consequence.” Id. at 53. Sometime later, the plaintiff began experiencing neurological symptoms, and her problem was diagnosed as Parkinson’s
Persuaded by the plaintiff’s argument, the Mancuso court decided that an extraordinary case for application of the discovery rule was shown when the "plaintiff had no reason, by way of medical advice or otherwise, to associate her . . . condition with the trauma and . . . could show that even with the exercise of reasonable diligence that causal connection would have remained unknown to her.” Id. The New Jersey court went on to explain that the discovery doctrine would not "be available to a plaintiff who merely misjudges the severity of a known injury or who suffers consequent symptoms or ailments reasonably related to the originally known causally-connected injury.” Id. at 59.
In acknowledging the distinction articulated in Mancuso, the Gagliardi Court rejected application of the discovery doctrine because "[u]nlike the latent disease cases (Parkinson’s disease, epilepsy, facial paralysis), the instant case involves a known injury which was diagnosed approximately two weeks following the accident. . . . Unlike the cases relied upon by the plaintiff [Mielke and Horan], the wrist injury at issue was immediately known.” Gagliardi, supra at 75.
In our attempt at reconciliation, we can only conclude that the discovery doctrine is available in cases such as Mielke and Horan where the plain
Because we are presented in this case with allegations of a latent injury, we believe that the trial court erred in granting defendant’s motion for summary disposition without first considering the discovery doctrine. On remand, plaintiff will be given the opportunity to persuade the trial court that hers is an extraordinary case eligible for the application of the discovery rule.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
Concurring Opinion
I concur in the result reached by Judge Cavanagh, because of this Court’s decision in Hohendorf v Meagher, 188 Mich App 400; 470 NW2d 418 (1991), which adopted the majority opinion in Gagliardi v Flack, 180 Mich App 62; 446 NW2d 858 (1989). Administrative Order No. 1990-6, 436 Mich lxxxiv, requires me to follow Hohendorf. If not so restrained, I would reaffirm and adopt my dissent in Gagliardi, which basically held that the period of limitation does not start to run until the injured party
Mielke v Waterman, 145 Mich App 22; 377 NW2d 328 (1985), and Horan v Brown, 148 Mich App 464; 384 NW2d 805 (1986).
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