Opinion
Docket No. 131242.
Decided April 21, 1992, at 9:05 A.M.
Pianin, Paull, Sugar Brandon (by Michael Pianin), for the plaintiff.
Mitchell Leon (by John B. Holiday) ( Nancy L. Bosh, of Counsel), for the defendant.
Before: GRIFFIN, P.J., and HOLBROOK, JR., and REILLY, JJ.
Plaintiff appeals as of right from a circuit court order granting defendant's motion for summary disposition pursuant to MCR 2.116(C)(7). We affirm.
Plaintiff and defendant were involved in an automobile accident that occurred on January 27, 1986. Plaintiff filed a negligence action against defendant in the Oakland Circuit Court on January 5, 1989. On January 6, 1989, twenty-one days before the expiration of the limitation period, copies of the summons and complaint were given to a process server for service upon defendant.
Despite the efforts of the process server, defendant was not served before the summons expired on July 6, 1989. Accordingly, an order dismissing plaintiff's action pursuant to MCR 2.102(E) was entered on July 14, 1989.
Plaintiff filed a second action against defendant on July 26, 1989. Defendant was served with a summons and complaint for the second action on October 4, 1989.
Defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(7) with regard to plaintiff's second complaint. The trial court found that pursuant to MCL 600.5856(3); MSA 27A.5856(3), the period of limitation was tolled for ninety days from the time that the summons and complaint were given to the process server on January 6, 1989. Therefore, the period of limitation was tolled only until April 6, 1989. The court found that plaintiff's second complaint, which was not filed until July 26, 1989, was therefore barred by the statute of limitations.
It is undisputed that plaintiff's cause of action was subject to the three-year limitation period of MCL 600.5805(8); MSA 27A.5805(8). The parties also do not dispute that plaintiff's cause of action accrued on January 27, 1986, and that a copy of the summons and complaint were given to a process server on January 6, 1989, twenty-one days before the expiration of the three-year limitation period. Both parties also agree that the limitation period was tolled when the process server was given a copy of the summons and complaint, but disagree with respect to the number of days that the limitation period was tolled.
Plaintiff argues that once the summons and complaint were given to the process server, the limitation period was tolled for the life of the summons, which was 182 days pursuant to MCR 2.102(D). She asserts, therefore, that the limitation period was tolled until July 6, 1989, the date when the summons expired under the court rule. Because there were twenty-one days left in the limitation period at the time the process server was given the summons and complaint on January 6, 1989, plaintiff states that she had until twenty-one days after the summons expired to file her second complaint.
Defendant argues that pursuant to MCL 600.5856(3); MSA 27A.5856(3) the period of limitation was tolled for only ninety days after plaintiff gave the complaint and summons to the process server. When service was not made by the end of the day on April 6, 1989, the ninety-day tolling period expired, and the limitation period began to run again. Therefore, according to defendant, the period of limitation applicable to plaintiff's cause of action expired twenty-one days later, on April 27, 1989.
To toll the running of a period of limitation means to show facts removing its bar of the action. Buscaino v Rhodes, 385 Mich. 474, 481; 189 N.W.2d 202 (1971); Lausman v Benton Twp, 169 Mich. App. 625, 629; 426 N.W.2d 729 (1988). The determination whether a prior lawsuit between the parties, which has been dismissed without an adjudication on the merits, serves to toll the period of limitation is governed by the tolling statute, MCL 600.5856; MSA 27A.5856. Buscaino, supra at 482; Sanderfer v Mt Clemens Gen Hosp, 105 Mich. App. 458, 461; 306 N.W.2d 322 (1981); Lausman, supra at 630.
The tolling statute provides:
The statutes of limitations are tolled when
(1) the complaint is filed and a copy of the summons and complaint are served on the defendant, or when
(2) jurisdiction over the defendant is otherwise acquired, or when,
(3) the complaint is filed and a copy of the summons and complaint in good faith, are placed in the hands of an officer for immediate service, but in this case the statute shall not be tolled longer than 90 days thereafter. [MCL 600.5856; MSA 27A.5856.]
Under this provision the period of limitation is tolled once the defendant is served or the court otherwise obtains jurisdiction over the defendant or, as occurred in the present case, a copy of the summons and complaint are given to an officer for immediate service. However, in this situation, the officer only has an additional ninety days from the date of delivery to effect service on the defendant. See Andrews v Allstate Ins Co, 479 F. Supp. 481, 485 (ED Mich, 1979).
In the present case, defendant was not served during the ninety-day grace period provided by the statute. Therefore, the limitation period began to run again on April 6, 1989. See Continental Ins Co v B B Educator Sales, Inc, 34 Mich. App. 499, 503; 192 N.W.2d 126 (1971). The period of limitation applicable to plaintiff's claim expired twenty-one days later, on April 27, 1989. Accordingly, plaintiff's second complaint, which was filed on July 26, 1989, was barred by the statute of limitations.
Contrary to plaintiff's assertion, we do not believe that the decision in Lausman, supra, requires that we reach a different result. The issue decided by the Court in Lausman was the date that the tolling of the period of limitation commenced. The Lausman Court was not presented with the situation where a defendant was not served during the ninety-day grace period and the initial suit was dismissed for failure to serve the defendant.
We also reject plaintiff's argument that MCR 2.102(D), which, at the time this case was filed, provided that a summons did not expire for 182 days, is controlling. The period set out in MCR 2.102(D) merely states the time during which a summons is valid. Its provisions do not relate to the tolling of a period of limitation.
On the basis of the foregoing, we conclude that the trial court did not err in finding that plaintiff's cause of action was barred by the statute of limitations.
Affirmed.