Opinion
Docket No. 66416.
Decided November 4, 1982. Leave to appeal applied for.
Posner, Posner Posner (by Samuel Posner and Gerald F. Posner), for plaintiff.
George W. Crockett, Jr., Acting Corporation Counsel, and Dennis Burnett, Assistant Corporation Counsel, for defendant City of Detroit.
Before: N.J. KAUFMAN, P.J., and D.E. HOLBROOK, JR., and BEASLEY, JJ.
ON REMAND
Plaintiffs were injured in a traffic accident at an intersection in the City of Detroit on February 16, 1977. A complaint was filed in the Wayne County Circuit Court alleging negligence on the part of Debra Flower, driver of the automobile which struck the plaintiffs' car, and Sonja Williams, owner of the same car. Defendants' answer averred the affirmative defense that there was no sign or signal at the intersection where the accident occurred which required defendant Flower to stop.
On February 15, 1978, attorneys for both plaintiffs and defendants stipulated to add the City of Detroit as a party defendant pursuant to GCR 1963, 206.1. The parties apparently sought indemnification for defendants Flower and Williams, and the addition of a principal tortfeasor defendant. They claimed the city failed to maintain traffic signs at a controlled intersection. The trial court signed an order adding the City of Detroit as a defendant on December 15, 1978. Plaintiffs filed a second amended complaint on June 11, 1979, adding the City of Detroit as a defendant. This was more than two years after the accident. On July 3, 1979, the city moved for accelerated judgment pursuant to GCR 1963, 116.1(5), alleging that the two-year statute of limitations in MCL 691.1411(2); MSA 3.996(111)(2) had run. The trial court granted the defendant city's motion.
Plaintiffs appealed. This Court affirmed the accelerated judgment in Moore v Flower, 108 Mich. App. 214; 310 N.W.2d 336 (1981). Plaintiffs appealed to the Supreme Court. In lieu of granting leave to appeal, that Court remanded the case to this Court "to address the question of whether the order adding the party defendant was sufficient in itself to commence the action against the added defendant". 414 Mich. 897 (1982).
We hold that the trial court's order adding the City of Detroit as a defendant was not sufficient to commence the action against the city. The action commenced when the amended complaint was filed.
The basic rule for commencing an action is that "[a] civil action is commenced by filing a complaint with the court". GCR 1963, 101. The rule for permissive joinder of defendants, GCR 1963, 206.1, does not expressly alter the basic rule, nor should it alter the basic rule by implication. It would not unnecessarily prejudice the rights of the party seeking to add a party if a timely amended complaint were required. On the other hand, there is no indication that the City of Detroit had notice of the claims sought to be raised against it until the complaint was filed. Cf. Forest v Parmalee (On Rehearing), 60 Mich. App. 401, 407-408; 231 N.W.2d 378 (1975), aff'd 402 Mich. 348; 262 N.W.2d 653 (1978). Because the City of Detroit did not know an action had been commenced against it until June 11, 1979, it was entitled to the protection of the statute of limitations, MCL 691.1411(2); MSA 3.996(111). Allowing an action to commence against an added party solely by court order is not consistent with the letter or the spirit of the court rules and notice requirements.
Affirmed.