Opinion
Docket No. 56418.
Decided July 13, 1982.
Ulanoff, Ross, Summer, Lakritz, Wesley Bloom, P.C., for the taverns.
Fordney Cady, P.C., for the Deislers.
Cross-defendants appeal by leave granted from an order of the circuit court denying their motion for accelerated judgment. The issue on appeal is whether the filing of a complaint tolls the statute of limitations for claims between codefendants, where those claims arose out of the same series of events that form the basis of the original complaint.
This dispute arose out of a 1978 automobile accident in which two persons were killed. Two days before the limitation period under the dramshop act expired, the estate of one of the decedents and certain other individuals filed suit against the drivers and owners of the two automobiles involved in the collision and against two bars which allegedly served alcohol to one of the drivers while he was visibly intoxicated.
MCL 436.22 et seq.; MSA 18.933 et seq.
Approximately three months after the original complaint was filed, the estate of the other decedent and certain other individuals who were also named defendants in the original complaint filed cross-claims against the codefendant bars and individuals. The trial court granted accelerated judgment against the cross-plaintiff estate (since it was not a party to the original suit), but denied accelerated judgment against the cross-plaintiff individuals, since they were parties to the original suit. The court, analogizing cross-claims to counter-claims, held that the filing of the original complaint tolled the running of the two-year statute of limitations as to all named parties in the original complaint. We reverse.
As a general rule, limitation periods for cross-claims between codefendants are not tolled by the filing of the original complaint even where those claims arose out of the same series of events upon which the original complaint is based. Trindade v Superior Court of Contra Costa County, 29 Cal.App.3d 857, 858; 106 Cal.Rptr. 48 (1973); 54 CJS, Limitations of Actions, § 285, p 344.
Although this Court has never expressly adopted this rule, a similar approach has been employed in cases involving analogous factual situations. GCR 1963, 204 authorized third-party practice in Michigan. In Higginbotham v Fearer Leasing, Inc, 32 Mich. App. 664; 189 N.W.2d 125 (1971), lv den 385 Mich. 765 (1971), the plaintiff filed a suit against the principal defendants for injuries arising out of an automobile collision. The defendants filed an answer and later filed, within the applicable limitation period, a third-party complaint for contribution against some third-party defendants. Much later, the trial court allowed the principal plaintiffs to amend their complaint to include a third-party defendant as a principal defendant — despite the expiration of the limitation period applicable to the claim between the original plaintiffs and the third-party defendant — on the ground that the third-party defendant knew of the litigation and was not prejudiced by the amendment. Id., 668. This Court reversed, holding that GCR 1963, 204 does not provide a method for obtaining jurisdiction and that the timely filing of a third-party complaint does not toll the running of the statute of limitations for causes of actions involving parties other than the third-party plaintiff.
MCL 600.5823; MSA 27A.5823 provides for special tolling rules with respect to counterclaims, as opposed to cross-claims. No such statute or court rule exists with respect to cross-claims. Nevertheless, despite the absence of express statutory authority, this Court, in the exercise of its general equitable powers, would be willing to permit the tolling of the limitation period if cross-plaintiffs were merely seeking indemnification against, or contribution with respect to, liability arising out of the original, principal claims. This, however, is not the case; cross-plaintiffs are seeking damages arising out of an independent cause of action against the cross-defendants. If cross-plaintiffs were only seeking indemnification, they could not have filed an appropriate action until the commencement of the principal lawsuit. In contrast, in the situation before us, nothing prevented the cross-plaintiffs from proceeding against the cross-defendants, on their own, within the limitation period. We perceive no good reason to permit cross-plaintiffs to avoid the effect of the statute of limitations.
We conclude that the trial court erred in denying cross-defendants' motion for accelerated judgment and order the dismissal of the cross-claims with prejudice.
Reversed and remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction. Cross-defendants may tax costs.