WALLACE
v.
PATTERSON
Docket No. 77-3511.
Michigan Court of Appeals.
Decided August 21, 1978.Harvey, Kruse & Westen, P.C. (by John F. Milan), for plaintiff.
Felix F. Rogalle, for defendant.
Before: R.M. MAHER, P.J., and J.H. GILLIS and McGREGOR,[*] JJ.
PER CURIAM.
The facts in this matter are not in dispute.
Plaintiff and defendant's decedent, Kenneth Don Patterson, were involved in a motor vehicle collision in March, 1973.
Plaintiff commenced an action against decedent's estate on March 17, 1976, ten days prior to the running of the statute of limitations as set forth in MCL 600.5805(7); MSA 27A.5805(7). Defendant *268 filed an answer on July 14, 1976, and subsequently filed a counterclaim on December 30, 1976.
Shortly thereafter, plaintiff filed a motion for partial summary judgment on the basis that the counterclaim was barred by the statute of limitations. The trial court agreed and limited defendant's counterclaim to the setoff amount established by plaintiff's claim in accordance with MCL 600.5823; MSA 27A.5823.
Defendant subsequently filed an untimely motion for rehearing, objecting to the trial court's limitation of her counterclaim. This motion was denied.
Defendant now appeals by delayed leave granted challenging the validity of the trial court's ruling.
The sole issue raised on appeal can be set forth in one rather simple sentence. Did the trial court err in limiting defendant's counterclaim, which was based upon the same accident which gave rise to plaintiff's claim, to a setoff under MCL 600.5823; MSA 27A.5823?
MCL 600.5805(7); MSA 27A.5805(7) provides a 3-year statute of limitations for personal injury actions. GCR 1963, 101, states that a civil action is commenced upon the filing of the complaint. The accident in question occurred on March 26, 1973, and defendant did not file her counterclaim until December 30, 1976. Hence, defendant's claim was filed outside the 3-year limitation period.
MCL 600.5823; MSA 27A.5823 provides that:
"To the extent of the amount established as plaintiff's claim the periods of limitations prescribed in this chapter do not bar a claim made by way of counterclaim unless the counterclaim was barred at the time the plaintiff's claim accrued."
*269 The application of MCL 600.5823; MSA 27A.5823 is illogical in a negligence action where the counterclaim is based on the same accident as the original complaint, because it limits the defendant to a setoff. This is an illusory benefit, since if the plaintiff is found to be fully liable for the accident, the defendant would not be able to recover anything. Also, since contributory negligence would bar a negligence action, an application of MCL 600.5823; MSA 27A.5823 to such a case would be meaningless since plaintiff would not be entitled to any recovery and defendant's counterclaim would be worth nothing. The Legislature could not have intended to produce such absurd results. Accordingly, this Court does not believe that MCL 600.5823; MSA 27A.5823 governs the instant case.
We now turn to MCL 600.5805(7); MSA 27A.5805(7), the 3-year statute of limitations in respect to personal injury claims.
The policy underpinning the statute is to afford individuals security against stale claims which are difficult to defend against due to the loss of evidence and/or witnesses after extended periods of time. See Bigelow v Walraven, 392 Mich. 566; 221 NW2d 328 (1974), Bay State Milling Co v Izak, 310 Mich. 601; 17 NW2d 769 (1945).
Under the facts in the case at bar, there is no need to protect plaintiff from defendant's stale claim, in that it is no staler than his own, being based upon the very same accident. As long as the counterclaim is brought within a reasonable time during the pendency of the lawsuit, there seems to be no unfairness in allowing it. Indeed, it may well be argued that once a complaint is filed, the statute is tolled with respect to that cause of action on behalf of all of the parties involved.
*270 Other jurisdictions support such a result.
"Statutes of limitation are statutes of repose they are designed to bar stale claims. Where, as in this case, the counterclaim arises from the same incident as the complaint, the counterclaim is no more stale than the complaint.
"Simple justice dictates that if the plaintiffs are given an opportunity to present a claim for relief based upon a particular automobile collision, the defendant should not be prevented from doing so by a mere technicality.
"Without meaning to suggest in any way that the instant suit involves frivolous claims, the rule adopted by this Court will also have the beneficial effect of tending to discourage the filing of frivolous claims just before the running of the statute of limitations." Azada v Carson, 252 F Supp 988, 989 (D Hawaii, 1966).
"As noted, the statutes of limitation are designed to bar stale claims arising out of transactions or occurrences which took place in the distant past. Since the objective is satisfied when a party files a timely action, he has effectively tolled the running of the statute as to the occurrence involved and there appears no justification for barring the defendant's claim arising therefrom, provided the latter asserts it in due course in that action.
"We therefore hold that in a tort action, if a claim of a defendant arising out of the same occurrence which is the basis of the plaintiff's claim is not barred by limitation when the suit is brought, it may be asserted by a pleading timely served in such suit even though the limitation period has elapsed between the time of the commencement of the suit and the serving of the counterclaim." Armstrong v Logsdon, 469 S.W.2d 342, 343-344 (Ky, 1971).
Accordingly, this Court believes that fair play and justice mandate that defendant be able to assert her counterclaim in this case.
Reversed and remanded. Costs to defendant.
NOTES
[*] Former Court of Appeals judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.