Lambert v. Calhoun

210 N.W.2d 796, 48 Mich. App. 506, 1973 Mich. App. LEXIS 751

• Court: Michigan Court of Appeals
• Decided: July 25, 1973
• Docket: Docket 14640
• Status: Published

Opinions

J. H. Gillis, P. J.

Plaintiff, Beverly Lambert, was injured in an automobile accident on October 6, 1968. She was 14 years old at the time, and was a passenger in a car driven by James W. Holland. The negligence of Esker Calhoun, an uninsured motorist, was alleged to be the proximate cause of the accident. Plaintiff received an award from Holland’s insurance company, which then sued Calhoun in Detroit Common Pleas Court pursuant to subrogation rights.

On November 27, 1971,¹ plaintiff, through her next friend, brought suit against defendant Calhoun in Wayne County Circuit Court. The Secretary of State intervened in the action pursuant to MCLA 257.1105; MSA 9.2805, and moved for accelerated judgment alleging plaintiff’s claim against the Motor Vehicle Accident Claims Fund was barred by the three-year statute of limitations set out in MCLA 257.1118; MSA 9.2818,² and MCLA 257.1128; MSA 9.2828.³

Plaintiff argued below that her minority saved her cause of action under the Motor Vehicle Accident Claims Act, by virtue of a provision in the general statute of limitations.⁴

The trial court granted the Secretary’s motion. Plaintiff appeals raising three issues which we will consider seriatim.

It is well-settled that a specific legislative time limitation on bringing suit contained in a statute creating a cause of action excludes the operation of savings provisions contained in the general statute of limitations. Holland v Eaton, 373 Mich 34, 39-40; 127 NW2d 892, 895 (1964); Genesee Merchants Bank v Bourrie, 375 Mich 383, 390; 134 NW2d 713, 716 (1965); Troy W Maschmeyer Co v Haas, 376 Mich 289, 296; 136 NW2d 902, 904 (1965).

The entire concept of establishing a fund for the payment of judgments obtained against uninsured motorists, though remedial in nature, is new and did not exist at common law. Steele v Wilson, 29 Mich App 388, 392; 185 NW2d 417, 418-419 (1971). Like the dramshop act,⁵ the limitation contained in the Motor Vehicle Accident Claims Act is on the right to seek recovery from a previously immune source and both the right and the remedy created are exclusively controlled by the limitations contained therein. See Holland v Eaton, supra. We hold the trial court properly ruled on that issue.

We do not consider that such a holding denies due process or violates equal protection of law. Any claim of ambiguity or inconsistency engendered by the disparate wording of MCLA 257.1118, supra, and MCLA 257.1128, supra, has been overcome by the judicial interpretation in Lisee v Secretary of State, 388 Mich 32, 41, 42; 199 NW2d 188, 191, 192 (1972), which delineates the different legislative intendments of the two sections. Further, it is only recovery from the Motor Vehicle Accident Claims Fund that is barred by the limitation period, not the action against the uninsured motorist. All persons, whether infants or adults, seeking recovery from the fund must do so within the prescribed period, and such "nondiscrimination” is justified by the practical consideration that stale claims by anyone can prejudice an insurer’s opportunity to investigate and preserve evidence, be they private companies or "funds” created by the government. See, e.g., Oakland Motor Co v American Fidelity Co, 190 Mich 74; 155 NW 729 (1916); Wehner v Foster, 331 Mich 113; 49 NW2d 87 (1951).

We cannot hold that the institution of proceedings by Holland’s insurance carrier against Calhoun tolled the limitation period here in question. That suit did not, and could not,⁶ seek recovery from the Motor Vehicle Accident Claims Fund for this incident. Defendant denies it received notice of the claim against the fund* within the prescribed time limit and there is nothing in the record to refute this claim. Cf. Lisee v Secretary of State, supra.

Affirmed. Costs to appellee.

Bashara, J., concurred.

1 Approximately 3 years and 2 months after the accident.

2 MCLA 257.1118; MSA 9.2818, provides: "In all actions in which recovery is to be sought against the fund, said action must be commenced within 3 years from the time the cause of action accrues”.

3 MCLA 257.1128; MSA 9.2828, provides: "All claims or actions under which any person seeks to recover from the fund shall be filed or commenced within 3 years from the date of the accident”.

4 MCLA 600.5851(1); MSA 27A.5851(1), provides: "If the person first entitled to * * * bring any action is under 21 years of age * * * he or those claiming under him shall have 1 year after his disability is removed * * * to * * * bring the action although the period of limitations has run”.

5 MCLA 436.22; MSA 18.993.

6 MCLA 257.1122; MSA 9.2822, prohibits indemnification by the fund of any insurer in such situations.