Opinion
Docket No. 50006.
Decided February 17, 1981. Leave to appeal applied for.
Paul D. Sherr, for plaintiffs.
Sommers, Schwartz, Silver Schwartz, P.C., for defendants.
Before: V.J. BRENNAN, P.J., and N.J. KAUFMAN and M.J. KELLY, JJ.
Plaintiffs appeal as of right from an order entered on October 29, 1979, granting summary judgment in favor of defendants pursuant to GCR 1963, 117.2(1). The plaintiffs in the present case are the minor children of James and Marva Haack.
On May 18, 1971, plaintiffs' father, James Haack, was injured when defendant Agney drove his truck into the back of the motorcycle Mr. Haack was driving. As a result of the injury from this accident, Mr. Haack is a paraplegic. In 1972, Mr. Haack and his wife brought a suit against the defendants for injuries caused by the accident. The children's claims were not pleaded in that suit. That suit was settled for $850,000 on July 23, 1973. At the time of the parents' suit and subsequent settlement, Michigan law did not recognize that a child could maintain an independent cause of action for loss of parental society and companionship when a parent is severely injured.
However, on April 3, 1978, the Court of Appeals in Berger v Weber, 82 Mich. App. 199; 267 N.W.2d 124 (1978), lv gtd 403 Mich. 846 (1979), held that a child did have a cause of action for loss of parental society and companionship when the parent is severely injured.
The Berger Court, in appreciation that it was recognizing a new cause of action, gave the caveat that:
"In the interests of justice and fairness we hold the new rule to apply to the instant case and all future cases. See Plumley v Klein, supra [ 388 Mich. 1; 199 N.W.2d 169 (1972)], at 8." 82 Mich App at 213.
Thereafter, on April 12, 1979, the plaintiffs in the instant case filed their suit.
The narrow issue on appeal is whether plaintiffs' cause of action is included or precluded by the Berger Court's decision that the new cause of action would apply to all "future cases". Plaintiffs argue that "future case" refers to a case filed after the Berger decision while defendants argue that "future case" refers to a case in which the claim accrues after the Berger decision. We agree with the defendants.
In Parker v Port Huron Hospital, 361 Mich. 1, 28; 105 N.W.2d 1 (1960), the Court overruled the doctrine of common law immunity to tort actions of charitable institutions. The new rule was held to apply "to the instant case and to all future causes of action arising after September 15, 1960, the date of the filing of this opinion". In the paragraph following this statement, the Court used the phrase "this case and future cases", thus, using "future causes of action" and "future cases" interchangeably. The Court of Appeals interpreted these phrases in Cibor v Oakwood Hospital, 14 Mich. App. 1; 165 N.W.2d 326 (1968), to mean that if the cause of action had accrued prior to September 15, 1960, then the defense of charitable immunity was available to the hospital. The Court found that the plaintiffs' claim had accrued prior to the decisional date and, therefore, was invalid. Further, the Supreme Court said "future causes of action arising"; we interpret the word "arising" to mean accrued.
A claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results. MCL 600.5827; MSA 27A.5827. In the present case, plaintiffs' cause of action accrued on May 18, 1971, because this is the date that their father was injured. The Berger rule became effective on April 3, 1978, and applied to that case and all future cases or future causes of action. Since plaintiffs' claim accrued prior to April 3, 1978, the rule enunciated in Berger does not apply to plaintiffs' claim. Therefore, the grant of summary judgment was not erroneous.
Affirmed.
M.J. KELLY, J., concurred.
I respectfully dissent. Until the Supreme Court clarifies the decision in Berger v Weber, 82 Mich. App. 199; 267 N.W.2d 124 (1978), lv gtd 403 Mich. 846 (1979), I would hold that the rule announced by our Court in Berger applies to all future cases as well as to all cases pending on appeal. See Murray v Beyer Memorial Hospital, 409 Mich. 217, 222-223; 293 N.W.2d 341 (1980). I would, therefore, reverse.