The Michigan Supreme Court has once again overruled a previous decision in favor of a "plain meaning" interpretation of a statute. Gladych v. New Family Homes, Inc. This time, it rejected the conclusion in the case of Buscaino v Rhodes, 385 Mich 474; 189 NW2d 202 (1971), a decision reached in the heyday of Michigan free-range liberalism. Buscaino had held that a plaintiff who filed his complaint in court had satisfied the requirement for "commencement of the action" as required by the statute of limitations enshrined in MCL 600.5805. That section states:
"A person shall not bring or maintain an action to recover damages for injuries to persons or property unless, after the claim first accrued to the plaintiff or to someone through whom the plaintiff claims, the action is commenced within the periods of time prescribed by this section."
The Court in Gladych noted that section 5856 governs "tolling" of the statute of limitations, a concept which includes the satisfaction of the statute of limitations by commencement of the action. That section states, in pertinent part, that tolling occurs in these cases:
(1) the complaint is filed and a copy of the summons and complaint are served on defendant,
(2) jurisdiction is otherwise acquired over defendant,
(3) the complaint is filed and a copy of the summons and complaint in good faith are placed in the hands of an officer for immediate service (but no longer than ninety days after the summons and complaint are received by the officer).
These three sections were in effect when Buscaino was decided. The Court in deciding Buscaino, however, wholly disregarded the provisions of section 5856, the Gladych Court noted. It reasoned:
"If the period of limitations somehow 'stopped' at the filing of the complaint, as concluded in Buscaino, there would be no need to specify tolling requirements. Buscaino attempted to retain some meaning in §5856 by limiting its application to situations in which a prior suit was not adjudicated on the merits, but nothing in the plain language of §5856 indicates that the statute should be limited in such a manner. Rather, the statute provides, without exception, that 'statutes of limitations or repose are tolled' when one of the four enumerated actions take place. It follows logically, then, that if one of the four enumerated actions does not occur, the statutes of limitations or repose are not tolled. Nothing in the statutory language permits limiting §5856 to actions in which a prior suit was not adjudicated on the merits."
Buscaino represented an effort to avoid an apparent conflict between section 5856 and the former Rule 101 of the General Court Rules of 1963, which provided that "[a] civil action is commenced by filing a complaint with the court". Numerous previous cases had held that, in matters of procedure, the provisions of the court rules will control and take precedence over statutes. The Court in Gladych stated that its recent decision in McDougall v. Schanz had clarified that this general rule does not apply to statutes which make substantive changes in the law even though they superficially appear to address procedural issues. (The McDougall case had upheld Michigan statutes limiting the qualifications of experts in medical malpractice cases.) Applying that new understanding to the issue in Buscaino, the Court found that the provisions of section 5856 must take precedence, because statutes of limitations are likwise substantive principles of law in the guise of rules governing procedure.
Of interest in Gladych is its ruling on prospective vs. retroactive effect. Since the legal profession had been following and relying on Buscaino for the last thirty years, it was not appropriate to simply give it full effect immediately. The Court decided that the new rule it announced would be given prospective effect only.
"Accordingly, this decision will be given limited retroactive application, applying only to cases in which this specific issue has been raised and preserved. People v Cornell, 466 Mich 335, 367; 646 NW2d 127 (2002); Lowe v Estate Motors, Ltd, 428 Mich 439, 475; 410 NW2d 706 (1987). In all other cases, this decision will have prospective application, effective September 1, 2003."
(The Court failed to disclose whether that means that the new rule applies to cases filed after that date or to cases in which the claim accrues after that date. The former is the more logical, but surely this will be an issue that someone will raise for failure of the Court to be more specific here.)
What is simply astounding about this decision, however, is the position taken by the three concurring Justices -- Weaver, Kelly, and Cavanagh. None dissented from the ruling, but Justice Weaver, joined by Kelly and Cavanagh, took the position that "in fairness to the plaintiff in the present case, I would give the decision prospective application only and allow the plaintiff to rely on Buscaino".
This is an amazing new principle of jurisprudence. In our experience, if a litigant prevails on a Court to change a rule of law that it had previously accepted and applied, the prevailing litigant wins her case. What kind of "victory" would this principle provide to the successful litigant? The result advocated by Weaver would essentially lead the Court to tell the defendant,
"You are right. Our previous rulings were wrong. We accept your argument, and we will change the rule starting September 1. You lose your case, however, because it is still governed by the erroneous rule that was in effect when your case was filed, the rule that you convinced us was wrongly decided. We appreciate your selfless service to the jurisprudence of this State.
"The door is on your right as you leave."
To use a decidedly non-Michigan phrase -- fuhgeddaboutit!! The winner wins. This is the elementary rule of litigation in this or any other state.
9:51:43 PM 
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