Originally printed in Michigan Defense Quarterly, July 2014 edition.
An application for leave to appeal the Court of Appeals’ decision in Furr v McLeod is currently pending before the Michigan Supreme Court. This opinion was issued by a special panel of the Court of Appeals convened after the court declared a conflict with Tyra v Organ Procurement Agency of Michigan.
The Facts: The plaintiffs filed their complaint 181 days after serving a notice of intent (“NOI”), instead of the 182 days required under MCL 600.2912b. The trial court denied defendants’ motion for summary disposition, relying on Zwiers v Growney (invoking MCL 600.2301 to excuse a complaint filed 1 day too soon). After that ruling, the defendants filed an application for leave to appeal to the Court of Appeals. In the interim, the Supreme Court decided Driver v Naini, which reaffirmed that Burton v Reed City Hosp Corp still applied despite the Supreme Court’s decision in Bush v Shabahang (permitting a court to either ignore or allow a plaintiff to remedy defects in the substance of NOIs). In lieu of granting leave, the Court of Appeals remanded to the trial court for reconsideration of the summary disposition motion under Driver and Burton. After the trial court again denied summary disposition, the Court of Appeals granted leave to appeal.
The Ruling: The Court of Appeals, in an opinion authored by Judge William Whitbeck and joined by Judge Michael J. Kelly, concluded that Driver and Burton compelled the dismissal of the plaintiff’s complaint, and essentially invalidated Zwiers and the proposition that MCL 600.2301 could somehow be used to change the date of service of an NOI or the filing of a complaint. The panel noted, however, that Tyra, supra, which compelled the opposite conclusion, was binding under the “first-out” rule of MCR 7.215(J). Accordingly, it held that though it would have reversed the denial of summary disposition, it was constrained by Tyra to affirm instead. The Court of Appeals invoked the conflict-resolution procedure and entered an order vacating Furr under MCR 7.215(J)(5), and convened a special panel to resolve the conflict between the Tyra and Furr decisions.
The seven-member conflict panel ruled 4-3 in favor of affirming the trial court’s denial of summary disposition (and thus resolving the conflict in favor of Tyra). The majority opinion, authored by Chief Judge William Murphy, and joined by Judges Jane Markey, Stephen Borrello, and Jane Beckering, held that the majority could not “discern with any certitude whether the Driver Court effectively overruled Zwiers.” The majority reasoned that the Supreme Court had not made clear that it meant to “preclude the application of MCL 600.2301 under any circumstances entailing a Burton-type situation in which a complaint is prematurely filed” before the time permitted under MCL 600.2912b.
The majority distinguished Driver by pointing out that in Driver, the plaintiff sought to sue parties against whom the statute of limitations had already run by using MCL 600.2301 to “amend” the NOI and add the party in. The Furr majority focused heavily on the Driver Court’s analysis of whether the plaintiff could rely on MCL 600.2301 through consideration of the statutory language. The Furr majority inferred that this tacitly implied that the court was contemplating that in a different situation, where the plaintiff timely served an NOI, MCL 600.2301 might be used to excuse noncompliance with the notice waiting period set forth in MCL 600.2912b.
Curiously, however, the Furr majority discussed—and indeed went as far as block-quoting—the portion of the Driver case in which the Court stressed that Bush explicitly confirmed that Burtonwas good law and that all plaintiffs were required to strictly comply with the notice waiting period. That notwithstanding, the Furr majority concluded that the Driver Court somehow left the door open to allowing noncompliance with the notice waiting period to be excused under MCL 600.2301. Accordingly, the Furr majority did exactly that: held that MCL 600.2301 excused noncompliance with the waiting period.
Judge Peter O’Connell issued a dissenting opinion joined by Judge Michael Talbot. The dissent concluded that it would have reversed the denial of summary disposition for the reasons stated in Judge Whitbeck’s opinion in the earlier Furr case as well as those set forth in the dissenting opinion in Tyra. Judge Patrick Meter issued a separate dissenting opinion in which he joined Judge O’Connell’s dissent. But Judge Meter, a member of the panel that issued the Zwiers opinion, disagreed with the Furr majority and felt that Driver had implicitly overruled Zwiers.
Practice Tip: Five years after the Supreme Court’s decision in Bush, there is still quite a bit of uncertainty about how much compliance—if any at all—with the NOI waiting period is required. Even in Bush, the Court seems to be clear that a plaintiff must strictly comply with that period. The results in Zwiers, Tyra, and Furr, and similar cases, however, would suggest otherwise. The Furr majority, in closing its opinion, supported its decision to hold that Driver did not overrule Zwiers by explaining its view that “the sound legal course for this Court is to leave the issue for a future definitive decision by the Michigan Supreme Court, should the Court have the opportunity and inclination to address the matter.”
Applications for leave to appeal from the Court of Appeals’ opinions in both Tyra and Furr are pending, so the Supreme Court will have the opportunity to resolve the issue if it has the inclination to do so. Given the obvious conflict among the Court of Appeals judges on whether Zwiers continues to be good law, it would not be surprising to see the Supreme Court grant leave to appeal. While Bush has turned a content-based NOI challenge into all but a fool’s errand, it is probably not yet time to throw in the towel on Burton-related challenges to complaints filed prematurely, before the expiration of the NOI waiting period.
1 See Michigan Defense Quarterly, Vol. 30, No. 3, p. 38, for more discussion of the earlier opinion in Furr, and the opinion in Tyra.