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Docket Number

Docket No. 78-3603.

Attorney(S)

Raymond, Rupp Weinburg, P.C. (by David S. Keast), and Sandor M. Gelman, for plaintiffs. Dykema, Gossett, Spencer, Goodnow Trigg (by J. Thomas Lenga and Joseph C. Basta) (Otis M. Smith, General Counsel, by Patricia Harris, of counsel), for defendant General Motors Corporation.

Judges

V.J. BRENNAN, J.

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Smart Summary

Stoneman v. Collier, Michigan Court of Appeals (Dec. 6, 1979) — Opinion Summary

Factual and Procedural Background

On October 19, 1973, Donna Sue Ollie died from carbon monoxide asphyxia while a passenger in a 1965 Pontiac owned and operated by Robert M. Collier and manufactured by General Motors. On or about April 2, 1975, Martin Stoneman was appointed administrator of Ollie's estate and commenced an action in Oakland County Circuit Court against Collier's automobile no-fault insurer. At that time, the attorney for Collier's estate had been cooperating with plaintiffs' investigation but allegedly retained insurance company investigation materials and photographs and refused to turn them over, claiming they were work product. Plaintiffs allege that information showing General Motors' liability was fraudulently concealed by Collier's estate attorney and was not disclosed until after the three-year statute of limitations had run.

Plaintiffs sought to add General Motors as a defendant in the wrongful death action, invoking the fraudulent concealment statute (MCL 600.5855; MSA 27A.5855) or, alternatively, the "discovery rule" (that the statute begins to run upon discovery of a possible cause of action). On September 12, 1977, plaintiffs filed a first amended complaint alleging breach of implied warranty and negligence in certain designs that allowed carbon monoxide intrusion.

The trial court initially ruled that the fraudulent concealment statute did not extend the limitations period but that the discovery rule applied. On rehearing the trial court reversed that second determination, holding that the discovery rule was not applicable to products-liability wrongful-death cases and relying on Szlinis v Moulded Fiber Glass Companies, Inc. An amended order granting accelerated judgment in favor of General Motors was entered July 5, 1978, certified as final under GCR 1963, 518.2, and plaintiffs appealed.

Legal Issues Presented

Whether the fraudulent concealment statute (MCL 600.5855; MSA 27A.5855) tolls the statute of limitations as to a defendant who did not participate in the alleged concealment by a third party.
Whether the "discovery rule" delays accrual of a wrongful-death/products-liability cause of action until the plaintiff discovers the possibility of the defendant's liability.

Arguments of the Parties

Plaintiffs' Arguments

The plaintiffs asserted that the Collier estate attorney fraudulently concealed information that would have disclosed General Motors' liability and that the concealment prevented timely suit against General Motors.
Plaintiffs contended that the fraudulent concealment statute had been amended since the controlling precedent (International Union v. Wood) so as to operate where third parties engage in concealment, and therefore the statute of limitations should be tolled as to General Motors.
Alternatively, plaintiffs argued that the statute of limitations did not begin to run until discovery of the existence of a possible cause of action against General Motors (the discovery rule).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
International Union United Automobile Workers of America, AFL v Wood, 337 Mich. 8, 14; 59 N.W.2d 60 (1953)	The principle that "concealment by one other than the one sought to be charged is not within the prohibition of the statute."	The court relied on this holding to conclude that the fraudulent concealment statute does not toll the statute of limitations as to a defendant who did not participate in the concealment.
Stevenson v Robinson, 39 Mich. 160	Support for the rule that concealment by a third party does not toll the statute as to another defendant.	Referenced as supporting authority for the rule announced in Wood, reinforcing the court's conclusion regarding third-party concealment.
Szlinis v Moulded Fiber Glass Companies, Inc, 80 Mich. App. 55; 263 N.W.2d 282 (1977) lv granted 402 Mich. 925 (1978)	Authority the trial court relied upon in addressing the applicability of the discovery rule to products-liability wrongful-death cases.	The opinion indicates that the trial court relied on Szlinis when it held on rehearing that the discovery rule was not applicable to products-liability wrongful-death cases.
Vega v Briggs Manufacturing Co, 341 Mich. 218, 222; 67 N.W.2d 81 (1954)	Interpretation that the 1954 amendment added "conceal the identity of any party" as a ground for tolling the statute.	Used to explain the effect of the 1954 amendment to the fraudulent concealment statute and to show the amendment's limited scope.
Dyke v Richard, 390 Mich. 739; 213 N.W.2d 185 (1973)	Application of the discovery rule in medical malpractice: statute of limitations did not begin to run until plaintiff discovered or should have discovered the claim.	The court distinguished Dyke, noting the special problems in medical malpractice cases and holding those special considerations did not apply to this products-liability wrongful-death claim.
Sedlak v Ford Motor Co, 64 Mich. App. 61, 63; 235 N.W.2d 63 (1975)	Support for the proposition that a cause of action accrues when the plaintiff knows a cause of action exists; rejecting indefinite delay of accrual until professional assistance is obtained.	The court cited Sedlak to support the conclusion that plaintiffs had sufficient knowledge (that decedent died of carbon monoxide in a GM car) to begin the limitations period and could have proceeded against General Motors.
Kroll v Vanden Berg, 336 Mich. 306, 311; 57 N.W.2d 897 (1953)	The statement that "It is enough that [a party] knows that a cause of action exists in his favor" as the accrual standard.	Quoted and applied to show that plaintiffs' knowledge of the death and its circumstances was sufficient to start the limitations period.

Court's Reasoning and Analysis

The court first addressed whether the fraudulent concealment statute tolled the limitations period as to a defendant who did not participate in the concealment. It examined the 1915 version of the statute and the 1954 amendment, observing that the 1954 change explicitly added concealment of the identity of a party as a ground for tolling. The court found no showing that the 1954 amendment altered the preexisting rule, articulated in International Union v. Wood and Stevenson v. Robinson, that concealment by someone other than the defendant sought to be charged does not fall within the statute's prohibition. The court emphasized the purpose of statutes of limitation—to prevent stale claims—and characterized the fraudulent concealment act as penalizing fraudulent concealment. The court concluded it would be inequitable to extend that penalty to General Motors, which did not participate in the alleged concealment, and held that the lower court properly ruled the fraudulent concealment statute does not operate against persons who do not participate in the concealment.

The court then considered plaintiffs' discovery-rule argument. It acknowledged Dyke v. Richard, where the discovery rule was applied in medical-malpractice cases because of the special difficulty victims may have recognizing malpractice. The court explained those special factors are absent in this case: from the outset plaintiffs knew decedent Ollie died of carbon monoxide poisoning in a General Motors automobile and therefore could have pursued a claim against General Motors. Relying on Sedlak and the Kroll formulation, the court reasoned that accrual does not await the plaintiff's obtaining professional assistance or detailed evidence; it is sufficient that the plaintiff knows a cause of action exists. Based on that analysis, the court rejected the plaintiffs' contention that accrual was delayed until discovery of General Motors' possible liability.

Holding and Implications

Judgment affirmed in favor of General Motors Corporation.

Implications: The court held that (1) the fraudulent concealment statute (MCL 600.5855; MSA 27A.5855) does not toll the statute of limitations as to a defendant who did not participate in the alleged concealment by a third party, and (2) the discovery rule applied in medical-malpractice contexts does not, on the facts of this products-liability wrongful-death case, postpone accrual of the cause of action—plaintiffs knew the death and its circumstances and therefore the limitations period had run. The direct effect is that the accelerated judgment for General Motors is affirmed and costs are to be paid by plaintiffs-appellants. The opinion does not announce any broader rule expanding tolling beyond the principles discussed and does not purport to establish a novel precedent beyond applying existing authorities.

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STONEMAN v COLLIER

V.J. BRENNAN, J.

Plaintiffs appeal of right from an amended order granting accelerated judgment in favor of defendant General Motors Corporation, entered on July 5, 1978, by Oakland County Circuit Judge Stephen N. Andrews, acting for and on behalf of Oakland County Circuit Judge William J. Beer. The amended order expressly stated that it was entered as a final judgment of the matters involving General Motors Corporation and that there was no just reason for delay, thereby complying with GCR 1963, 518.2 and enabling plaintiffs to take an immediate appeal.

On October 19, 1973, Donna Sue Ollie died from carbon monoxide asphyxia while a passenger in a 1965 Pontiac automobile owned and operated by the late Robert M. Collier, and manufactured by General Motors. On or about April 2, 1975, Martin Stoneman was appointed administrator of the estate of the deceased Ollie and shortly thereafter commenced an action in Oakland County Circuit Court against the automobile no-fault insurance carrier of Robert M. Collier. At this time the attorney for the estate of Robert M. Collier was cooperating with plaintiffs in the investigation of the death.

Plaintiffs allege that the attorney had access to certain insurance company investigations on the cause of death as well as photographs of the automobile (the automobile was disposed of prior to Stoneman's appointment as administrator) and that Stoneman requested that the attorney turn over the information, but he refused claiming that the documents were the work product of the insurance company.

Plaintiffs allege that the only claim that they were aware of was against the company that installed the muffler and exhaust system shortly prior to decedent Ollie's death.

Plaintiffs claim here that the attorney for Collier's estate fraudulently concealed information that would disclose the liability of General Motors in a products liability suit. This information was not turned over to plaintiffs until after the three-year statute of limitations had run.

Plaintiffs attempted to add General Motors as a party defendant in the wrongful death action filed against Collier's estate and seven other defendants, citing the fraudulent concealment act, MCL 600.5855; MSA 27A.5855. In the alternative, plaintiffs claimed that the statute did not begin to run until discovery of the existence of a possible cause of action (the discovery rule) rather than upon the time of death. On September 12, 1977, plaintiffs filed their first amended complaint alleging that decedent Ollie's death was caused by General Motors' breach of implied warranty and negligence in certain designs that allowed carbon monoxide intrusion.

The lower court originally ruled that the statute of limitations was not extended by operation of MCL 600.5855 but that the statute did not begin to run until discovery of the existence of a possible cause of action against General Motors. On rehearing, the lower court reversed its position and ruled that the "discovery rule" was not applicable to products liability cases resulting in wrongful death. The lower court relied on Szlinis v Moulded Fiber Glass Companies, Inc, 80 Mich. App. 55; 263 N.W.2d 282 (1977) lv granted 402 Mich. 925 (1978).

The question raised on appeal is whether the actions of concealment by a third party operate to extend the statute of limitations against a party who has not participated in any concealment.

This precise issue was discussed in International Union United Automobile Workers of America, AFL v Wood, 337 Mich. 8, 14; 59 N.W.2d 60 (1953), where the Supreme Court stated: "concealment by one other than the one sought to be charged is not within the prohibition of the statute. See Stevenson v Robinson, 39 Mich. 160. "

The plaintiffs, aware of Wood, argue that the statute was amended since that case to operate where third parties engage in the concealment. The statute in 1953 read as follows:

"If any person who is liable to any of the actions mentioned in this chapter, shall fraudulently conceal the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within 2 years after the person who is entitled to bring the same shall discover that he had such cause of action, although such action would be otherwise barred by the provisions of this chapter." 1915 PA 314, ch 9, § 20.

In 1954 the statute was amended to read as follows:

"If any person, who is liable to any of the actions mentioned in this chapter, shall fraudulently conceal the cause of such action, or conceal the identity of any party thereto, from the knowledge of the person entitled thereto, the action may be commenced at any time within 2 years after the person who is entitled to bring the same shall discover that he had such cause of action, although such action would be otherwise barred by the provisions of this chapter." 1954 PA 49.

As can be readily ascertained the 1954 amendment added the concealment of the identity of a party to the action as a ground for tolling the statute. See Vega v Briggs Manufacturing Co, 341 Mich. 218, 222; 67 N.W.2d 81 (1954).

There is no showing that the amendment in any way changed the previously established rule that concealment by one other than the one sought to be charged is not within the prohibition of the statute.

The purpose of the statute of limitations is to prevent the bringing of stale claims which are difficult to prove and defend against. The fraudulent concealment act extends the statute of limitations against those who fraudulently conceal causes of action. The fraudulent concealment act punishes concealment. It would be inequitable in the present case to punish General Motors for acts of concealment engaged in by a third party.

The lower court properly ruled that the fraudulent concealment act does not operate against persons who do not participate in the concealment.

Plaintiffs next argue that the wrongful death action did not accrue until the possibility of General Motors' liability was discovered. We disagree.

In Dyke v Richard, 390 Mich. 739; 213 N.W.2d 185 (1973), the Court held that the statute of limitations for medical malpractice did not begin to run until the plaintiff discovered or should have discovered the existence of the claim. However, medical malpractice claims present special problems since it is sometimes difficult to distinguish the injury from symptoms of the condition for which treatment was sought.

Here the factors which may obstruct a patient's awareness of a malpractice claim are not present. From the outset plaintiffs were aware that decedent Ollie died of carbon monoxide poisoning in a General Motors automobile, and could have proceeded against General Motors accordingly.

As set forth in Sedlak v Ford Motor Co, 64 Mich. App. 61, 63; 235 N.W.2d 63 (1975):

"It would be an extremely dangerous rule of law that the accrual date of a cause of action is held in abeyance indefinitely until a prospective plaintiff obtains professional assistance to determine the existence of a possible cause of action. Under such a theory, no limitations period would ever be binding.

"The Supreme Court summed this all up as follows:

"`It is not necessary that a party should know the details of the evidence by which to establish his cause of action. It is enough that he knows that a cause of action exists in his favor, and when he has this knowledge, it is his own fault if he does not avail himself of those means which the law provides for prosecuting or preserving his claim.' Kroll v Vanden Berg, 336 Mich. 306, 311; 57 N.W.2d 897 (1953)."

Affirmed. Costs to be paid by plaintiffs-appellants.

STONEMAN v. COLLIER