Opinion
Nos. 141355, 141356, 141357, 141358, and 141359.
December 27, 2010.
Court of Appeals Nos. 279149, 286342, 286343, 286344, and 287143.
I would grant leave to appeal, and therefore dissent. At issue is the point of accrual of the two-year statute of limitations for professional malpractice cases. The applicable statute, MCL 600.5838(1), provides:
[A] claim based on the malpractice of a person who is, or holds himself or herself out to be, a member of a state licensed profession accrues at the time that person discontinues serving the plaintiff in a professional or pseudoprofessional capacity as to the matters out of which the claim for malpractice arose, regardless of the time the plaintiff discovers or otherwise has knowledge of the claim. [Emphasis added.]
Here, defendant attorney represented plaintiffs' insurance sales representatives in "wrongful termination" employment litigation. Defendant continued working on appeals in this case, even after plaintiffs retained another attorney to pursue "age discrimination" claims that plaintiffs believe grew out of the same circumstances as the "wrongful termination" claims and that should have been joined with the latter claims. As a result of defendant's failure to join these claims, plaintiffs also filed a professional malpractice suit against him for the handling of their original lawsuit. The central question is whether defendant's representation of plaintiffs in their "wrongful termination" appeal can fairly be said to have occurred in the course of representing plaintiffs in "matters out of which the claim for malpractice arose," where such malpractice claim concerned defendant's failure to attach "age discrimination" claims to "wrongful termination" claims in the original lawsuit. Significantly, MCL 600.5838(1) does not refer to the singular "matter," but to the plural "matters," and does not refer to the "case," or the "claim," but to "the matters," as establishing the accrual point of its statute of limitations.
Accordingly, if under MCL 600.5838(1) the claim accrues from the time that plaintiffs hired a new attorney to replace defendant to represent them in the "age discrimination" claim, the two-year limitations period would have elapsed before the legal malpractice suit was filed against defendant. On the other hand, if under MCL 600.5838(1) the claim accrues from the time that defendant concluded his representation of plaintiffs in the "wrongful termination" claim — the limited scope of which eventually prompted plaintiffs' malpractice action — the two-year limitations period would not have elapsed before the legal malpractice suit was filed against defendant.
The reading of MCL 600.5838(1) sustained by the majority may conceivably be correct, but it is hardly clear. The majority's interpretation is predicated upon a highly limited reading of the statute that would essentially equate a "case" or "claim" with "matters." Each side in this case, in my judgment, has offered reasonable arguments in support of its position that the malpractice action here is, or is not, time-barred. Because this involves a significant issue of statutory interpretation, with important practical consequences for access to the legal system, I would grant leave to appeal.
CORRIGAN, J., joined the statement of MARKMAN, J.
YOUNG, J., not participating.