Opinion
Docket Nos. 143328.COA No. 291153.
2011-09-23
Paul MARSACK, Plaintiff–Appellee,v.Tami SALENS, as Personal Representative of the Estate of Laura Gabriel, Deceased, Defendant–Appellant,andHastings Mutual Insurance Company, Defendant.
Prior report: Mich.App., 2011 WL 2022955.
Order
On order of the Court, the motion for immediate consideration is GRANTED. The application for leave to appeal the May 24, 2011 judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we VACATE the judgment of the Court of Appeals and we REMAND this case to the Court of Appeals for reconsideration. The Court of Appeals opinion states, “Contrary to the argument raised by the personal representative, MCL 600.5852 is not a statute of limitations. Rather, MCL 600.5852 is a saving provision and an exception to the statute of limitations.” Slip op at 4. The Court of Appeals opinion further states, “Consequently, the personal representative did not meet her burden of establishing that MCL 600.5852 applied.” Id. Contrary to those statements, the personal representative, who is the defendant, did not argue that MCL 600.5852 is a statute of limitations or that it applies in this case. Rather, the personal representative argued that MCL 600.5852 does not apply in this case. Because the judgment of the Court of Appeals was based on an apparent misunderstanding of the parties' arguments, we DIRECT the Court of Appeals to reconsider its decision in light of the arguments actually made by the parties.
We do not retain jurisdiction.