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STATE OF MICHIGAN
COURT OF APPEALS


BETH HOFFMAN, Personal Representative of the Estate of EDGAR BROWN, Deceased, Plaintiff-Appellant, v PETER BARRETT and BATTLE CREEK HEALTH SYSTEMS, Defendants-Appellees.

UNPUBLISHED May 22, 2007

No. 258982 Calhoun Circuit Court LC No. 03-003576-NH

Before: Meter, P.J., and Kelly and Fort Hood, JJ. PER CURIAM. Plaintiff appeals as of right, challenging a circuit court order granting defendants' motions for summary disposition pursuant to MCR 2.116(C)(7). We affirm. This appeal is being decided without oral argument pursuant to MCR 7.214(E). We review de novo the circuit court's summary disposition ruling. Henderson, 465 Mich 124, 129; 631 NW2d 308 (2001). Beaudrie v

Under MCR 2.116(C)(7), summary disposition is proper when a claim is barred by the statute of limitations. In determining whether summary disposition was properly granted under MCR 2.116(C)(7), this Court "consider(s) all documentary evidence submitted by the parties, accepting as true the contents of the complaint unless affidavits or other appropriate documents specifically contradict them." [Waltz v Wyse, 469 Mich 642, 647-648; 677 NW2d 813 (2004), quoting Fane v Detroit Library Comm, 465 Mich 68, 74; 631 NW2d 678 (2001).] "Whether a period of limitation applies to preclude a party's pursuit of an action [also] constitutes a question of law that we review de novo." Detroit v 19675 Hasse, 258 Mich App 438, 444; 671 NW2d 150 (2003). The parties dispute whether plaintiff's provision of notice of her intent to sue defendants, as required by MCL 600.2912b, tolled the applicable period for filing this wrongful death medical malpractice action. In Waltz, supra at 648-651, 655, the Michigan Supreme Court held that under the clear and unambiguous language of MCL 600.5856, the filing of a notice of intent to sue during the two-year malpractice period of limitation in MCL 600.5805(6) operates to toll -1-


this period, but that the giving of notice does not toll the period in MCL 600.5852, which constitutes a wrongful death saving period, "an exception to the limitation period" and not a period of limitation itself. (Emphasis in original). In Mullins v St Joseph Mercy Hosp, 271 Mich App 503, 509; 722 NW2d 666 (2006), lv pending, a special conflict panel of this Court concluded that the Supreme Court's holding in Waltz "applies retroactively in all cases." More recently, a special conflict panel in Ward v Siano, 272 Mich App 715; 730 NW2d 1 (2006), lv pending, rejected the proposition that "a wrongful death plaintiff may rely on equitable tolling to escape the retroactive effect of our Supreme Court's decision in Waltz v Wyse." Ward, supra at 717-720. In this case, the decedent's claims accrued by January 25, 2001, the date of his death, and thus the two-year period of limitation in MCL 600.5805(6) extended through January 25, 2003. But the appointment of plaintiff as personal representative on July 27, 2001, gave her until July 27, 2003, to commence this action within the wrongful death saving period. MCL 600.5852. Plaintiff gave notice of her intent to sue defendants on March 3, 2003, but her provision of this notice did not toll the wrongful death saving period pursuant to MCL 600.5856(c). Waltz, supra at 648-651, 655.1 Consequently, plaintiff's filing of this action on October 16, 2003, occurred approximately 81 days after the wrongful death saving period had expired. In summary, because the holding in Waltz applies retroactively to this case, Mullins, supra at 509, and because the equitable or judicial tolling doctrine is not applicable under the circumstances of this case, Ward, supra at 717-720, the circuit court correctly found that defendants were entitled to summary disposition pursuant to MCR 2.116(C)(7).2

This Court has rejected plaintiff's contention that her giving of notice within the two-year period in MCL 600.5852 tolled this wrongful death saving period because she subsequently and timely filed suit within the three-year limit also referenced in

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