Opinion
No. 130836.
February 1, 2008.
Reported below: 270 Mich App 42.
Summary Dispositions February 1, 2008.
By order of April 4, 2007, the application for leave to appeal the February 23, 2006, judgment of the Court of Appeals was held in abeyance pending the decision in Mullins v St Joseph Mercy Hosp (Docket No. 131879). On order of the Court, the case having been decided on November 28, 2007, 480 Mich 948 (2007), the application is again considered and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we reverse the judgment of the Court of Appeals because the court erred in invoking the doctrine of equitable tolling under these circumstances. Devillers v Auto Club Ins Ass'n, 473 Mich 562, 590-591 n 65 (2005). However, because the plaintiff falls within the class of plaintiffs entitled to relief identified in our order in Mullins, supra, we reinstate the order of the Washtenaw Circuit Court denying the defendants' motion for summary disposition and remand this case to that court for further proceedings not inconsis-tent with this order and the order in Mullins.
The motion to consolidate is denied as moot.
CAVANAGH and WEAVER, JJ. We concur in the result.
The issue in this case is whether our decision in Waltz v Wyse bars plaintiffs claim. The Court of Appeals invoked the doctrine of equitable tolling to find that plaintiffs claim was not barred by Waltz. We affirm that decision, but for a different reason. Plaintiff is within the class of plaintiffs who are entitled to relief under our unanimous order in Mullins v St Joseph Mercy Hosp. For that reason, it is unnecessary for us invoke the doctrine of equitable tolling to find that plaintiffs claim is not barred by Waltz.
Waltz v Wyse, 469 Mich 642 (2004).
Mazumder v University of Michigan Bd of Regents, 270 Mich App 42, 62 (2006) (citations omitted).
Mullins v St Joseph Mercy Hosp, 480 Mich 948 (2007).
I write to point out that, given the state of the law when the Court of Appeals reached its decision, resort to the doctrine of equitable tolling was highly appropriate. As the Court of Appeals correctly recognized, the doctrine should be invoked "`to ensure fundamental practicality and fairness and to prevent the unjust technical forfeiture of a cause of action.'" The Court of Appeals persuasively concluded that circumstances justifying its application existed in this case.
Mazumder, 270 Mich App at 61 (citations omitted).