Opinion
Docket No. 58343.
Decided October 19, 1982. Leave to appeal applied for.
Charfoos, Christensen, Gilbert Archer, P.C. (by Adrienne G. Southgate and John A. Obee), for plaintiff.
Vandeveer, Garzia, Tonkin, Kerr Heaphy, P.C. (by Thomas P. Rockwell), for Farmers Insurance Group.
Nunneley, Hirt, Rinehart Cermak, P.C. (by W. John Stenton and Keith D. Cermak), for Detroit Automobile Inter-Insurance Exchange.
Plaintiff appeals as of right from the entry of accelerated judgment for defendant Detroit Automobile Inter-Insurance Exchange and the entry of summary judgment for defendant Farmers Insurance Group.
On June 21, 1975, plaintiff was injured when his motorcycle collided with a car driven by Irene Thayer. His motorcycle was not insured for no-fault benefits. On March 2, 1976, he sued Thayer for negligence. He subsequently, on June 18, 1976, amended the complaint naming Farmers as a party defendant. The parties eventually settled the claim against Thayer and stipulated that she be dismissed from the suit.
On September 16, 1976, plaintiff's sister testified in a deposition that she owned no-fault automobile insurance with DAIIE and that that insurance covered plaintiff.
On July 6, 1977, Davidson v Johnson, 76 Mich. App. 497; 257 N.W.2d 139 (1977), was decided. It stated that in such a situation the motorcycle driver is to recover from the car owner's insurance company. This same decision was reached in Underhill v Safeco Ins Co, 76 Mich. App. 13; 255 N.W.2d 349 (1976), released for publication July 20, 1977. Based on Davidson, the trial court granted summary judgment in the present case for plaintiff against Farmers. The order granting summary judgment was dated November 22, 1977.
That day a split on this issue developed in this Court. Hill v Aetna Life Casualty Co, 79 Mich. App. 725; 263 N.W.2d 27 (1977), followed Davidson and Underhill in ruling that the motorcycle driver must collect from the car owner's insurance company. However, Davidson was reversed on rehearing. 79 Mich. App. 660; 262 N.W.2d 887 (1977). The Court now ruled that the plaintiff must collect from his own insurance company. This same result was reached a few days later in Porter v Michigan Mutual Liability Co, 80 Mich. App. 145; 263 N.W.2d 318 (1977). Consequently, the parties stipulated on June 13, 1978, that DAIIE be added as a defendant.
This Court affirmed the summary judgment grant on January 5, 1979, based on Underhill, Hill, and the dissent in Porter. Kalakay v Thayer, Docket No. 77-4880, unreported per curiam opinion. However, the Supreme Court unanimously decided the issue on October 29, 1979, in Underhill v Safeco Ins Co, 407 Mich. 175; 284 N.W.2d 463 (1979), and followed Davidson (On Rehearing) and the majority in Porter. Subsequently, the Supreme Court summarily reversed the present case. 407 Mich. 943; 286 N.W.2d 34 (1979).
On remand, the trial judge granted summary judgment for Farmers based on the Supreme Court's decision in Underhill. He simultaneously granted accelerated judgment for DAIIE holding that the statute of limitations had expired. MCL 500.3145(1); MSA 24.13145(1).
Suing the wrong party usually does not toll the statute of limitations. Ciotte v Ullrich, 267 Mich. 136; 255 N.W. 179 (1934), Anno: Change in party after statute of limitations has run, 8 ALR2d 6, § 53, p 112. However, such a determination depends upon the particular circumstances of the case. Cobb v Mid-Continent Telephone Service Corp, 90 Mich. App. 349; 282 N.W.2d 317 (1979).
Plaintiff is arguing that this Court should, through its equitable powers, hold that the statute of limitations should not apply in this case to bar his suit against DAIIE. He claims that at the time he brought suit the law required him to sue Farmers — the car owner's insurance company — and that he then sued DAIIE within a reasonable time after discovering that the law might change. In effect, plaintiff is arguing that the equitable doctrine of contra non valentem agere nulla currit praescriptio (a prescription does not run against the party who could not bring a suit) should apply to this case. See Sincox v Blackwell, 525 F. Supp. 96 (WD La, 1981).
To a certain extent, a statute of limitations is not always a mechanical bar. In an analogous situation, a balancing test applies. If the plaintiff files a motion to amend the complaint to add the defendant before the statute of limitations expires but the judge does not grant the motion until after the expiration, this Court will hold that the statute was tolled if the plaintiff demonstrates due diligence in discovery and complies with procedural rules. Charpentier v Young, 83 Mich. App. 145; 268 N.W.2d 322 (1978), rev'd on other grounds 403 Mich. 851; 291 N.W.2d 926 (1978).
On balancing the interests, we look to the defendant's conduct (whether inequitable or not) on the one hand and to see if he had actual notice. See Matti Awdish, Inc v Williams, 117 Mich. App. 270; 323 N.W.2d 666 (1982). On the other hand, we look to the plaintiff's due diligence and capacity to sue. See, e.g., Foster v Woods, 71 Mich. App. 147; 246 N.W.2d 387 (1976), lv den 399 Mich. 805 (1977).
We would most likely hold for plaintiff if in fact he could not have sued DAIIE when he sued Farmers because the law then required him to sue Farmers. However, even if we assume that plaintiff exercised due diligence in discovering that DAIIE insures his sister's car, even if we assume that the statute did not already bar the suit at that time, and even if we assume that the six-month delay between the reversal of Davidson on rehearing and plaintiff's suit against DAIIE was not unreasonable, we find that plaintiff did not exercise due diligence in suing DAIIE. The doctrine of contra non valentum agere nulla currit praescriptio does not apply where the delay is due to the plaintiff's own neglect. Sincox, supra. At the time plaintiff sued Farmers and found out about DAIIE, the law was not clear but unsettled. The law did not become settled until July 6, 1977, ten months after plaintiff knew about DAIIE. As such, he should have sued DAIIE at that time in the alternative as one plaintiff in Davidson had. See Evernham v Selected Risks Ins Co, 163 N.J. Super. 132; 394 A.2d 373 (1978). Ignorance of the law usually does not toll a statute of limitations. Richards v Mileski, 213 US App DC 220; 662 F.2d 65 (1981). Therefore, we affirm the trial judge's grant of accelerated judgment against plaintiff:
"It is not unjust to deny a plaintiff's claim when he has failed to notify a defendant within the period of limitations." Meda v City of Howell, 110 Mich. App. 179, 184; 312 N.W.2d 202, 204 (1981).
We also affirm the grant of summary judgment for Farmers Insurance Group. Underhill, supra.
Affirmed.