(concurring). I concur in the reasoning and the result reached by the majority in this case, but write separately since I believe that, upon remand, the trial judge, rather than the jury, should decide whether an agency relationship existed between defendant doctors for purposes of *343the applicable statute of limitations period.1 As I write in my opinion in Blana v Spezia,2 which applies the new Michigan Court Rules, the resolution of factual disputes raised in determining whether the period of limitations applicable in medical malpractice cases has expired is a matter for the trial judge.
A motion for summary disposition based on the running of the applicable statute of limitations period is brought under MCR 2.116(C)(7). MCR 2.116(I)(3) addresses the resolution of disputed issues of fact involved in deciding motions for summary disposition and states:
A court may, under proper circumstances, order immediate trial to resolve any disputed issue of fact, and judgment may be entered forthwith if the proofs show that a party is entitled to judgment on the facts as determined by the court. An immediate trial may be ordered if the grounds asserted are based on subrules (C)(1) through (C)(6), or if the motion is based on subrule (C)(7) and a jury trial as of right has not been demanded on or before the date set for hearing. If the motion is based on subrule (C)(7) and a jury trial has been demanded, the court may order immediate trial, but must afford the parties a jury trial as to issues raised by the motion as to which there is a right to trial by jury. [Emphasis added.]
The problem presented in the within case is whether the factual issue concerning the existence of an agency relationship, which, as the majority points out, must be resolved in order to properly apply the medical malpractice statute of liniitations, raises an issue ”as to which there is a right *344to trial by jury.” As the authors of the recent annotation of the Michigan Court Rules point out:
If a jury trial has been timely demanded, the court may order an immediate jury trial of those issues under MCR 2.116(C)(7) "as to which there is a right to trial by jury.” MCR 2.116(I)(3). Not all issues that may be raised under MCR 2.116(C)(7) involve the right to jury trial (res judicata, for example), and the language quoted above from MCR 2.116(I)(3) is carefully worded to avoid a contrary implication. [Emphasis added.][3]
I believe that factual disputes raised in applying the medical malpractice statute of limitations, just like factual determinations required for the application of the doctrine of res judicata, do not involve the right to a jury trial. I reach this conclusion under the new court rules, first of all, since I believe the highly efficient, economical immediate trial option provided in MCR 2.116(I)(3) for the resolution of factual disputes in motions for summary disposition would be rendered worthless in the medical malpractice statute of limitations situation if every factual dispute was required to be submitted to a jury upon a party’s timely demand for a jury trial. Such a procedure would require the selection of a separate jury merely to resolve the statute of limitations issues. Judicial economy would not be served by such an unwieldy "immediate trial” procedure.
A sensible, pragmatic trial judge, facing the option of hearing a completely separate immediate jury trial on the statute of limitations factual disputes and then possibly having to hear a second jury trial on the full merits of the case, would, in proper pursuit of judicial economy, opt to conduct a single trial where one jury would decide both the *345statute of limitations issues and the merits of the malpractice claim. This single jury trial procedure might not be a troublesome result as applied to certain grounds for summary disposition raised under MCR 2.116(C)(7), such as those based on release or payment or assignment of the claim, since these grounds for summary disposition do not raise as substantial a risk of jury nullification of the law. However, in the medical malpractice statute of limitations situation, as I pointed out in Blana, supra, there is a more substantial risk that a jury, having heard the merits of an injured plaintiff’s medical malpractice claim, will disregard the evidence and find that the period of limitations has not run in order to grant the injured plaintiff monetary relief. Specifically, in this case, a jury, having heard the evidence concerning the severity of Mrs. Whitmore’s brachial plexus injury and perhaps feeling that the allegations of medical malpractice have been proved, may decide that the technicality of the expiration of the statute of limitations period should not bar plaintiffs from recovering damages and, thus, find that the necessary agency relationship existed regardless of the factual situation.
Thus, in deciding whether the medical malpractice period of limitations has expired, resolution of a factual issue, as to which there is a right to trial by jury, a trial judge, under MCR 2.116(I)(3), faces the predicament of choosing between inefficiently and wastefully conducting two separate jury trials or conducting a single jury trial where the risk is high that the jury will nullify the legislative intent embodied in the statute of limitations. MCR 2.116(I)(3) was not intended to create such a predicament for a trial judge facing a motion for summary disposition under the medical malpractice statute of limitations which involves some *346factual disputes. In order to assure the legitimate goals of judicial efficiency and fair adjudication of medical malpractice statute of limitations issues, I believe the resolution of factual disputes should not be deemed to involve issues as to which there is a right to trial by jury for purposes of MCR 2.116(I)(3). Such medical malpractice statute of limitations fact issues present preliminary questions which should be decided solely by the trial judge.
This conclusion is supported by the fact that the risk of jury nullification presented in this medical malpractice situation is analogous to the risk that exists in allowing a jury to" decide preliminary questions concerning the admissibility of evidence at trial. As I note in Blana, supra, p 353:
A jury is deemed unable to hear certain evidence, such as an illegally obtained confession or hearsay evidence, decide that the evidence is inadmissible, and then fairly decide the main issue at trial, having heard the inadmissible evidence. Therefore, the preliminary question concerning the admissibility of evidence at trial, which often involves the resolution of material factual disputes, is left solely to the trial judge.
The right to a jury trial does not exist for the resolution of factual disputes which are necessary in order to decide issues concerning the admission of evidence at trial. The resolution of these factual disputes is left to the trial judge in order to assure judicial efficiency and fair adjudication of evidentiary matters. For the same reasons, the resolution of factual disputes which are necessary in order to decide issues concerning the application of the medical malpractice statute of limitations should be left solely to the trial judge.
In fact, the new Michigan Court Rules indicate *347that such an expanded role for the trial judge in deciding preliminary issues involved in applying the medical malpractice statute of limitations is appropriate. Under the former general court rules, GCR 1963, 116.3 merely provided that a party may submit affidavits or other evidence in supporting or opposing a motion for accelerated judgment. The former court rule did not require a trial judge to consider the affidavits and other evidence in deciding an accelerated judgment motion. However, MCR 2.116(G)(5) expressly requires a trial judge to consider affidavits and other evidence in deciding a motion for summary disposition brought under MCR 2.116(C)(7). I believe that this change in the court rules indicates a broader role for the trial judge in deciding factual issues raised in a motion for summary disposition, especially, as discussed above, in a situation where the motion is based on the medical malpractice statute of limitations.
Since I believe the new court rules should be applied in this matter upon remand,4 and since the resolution of factual disputes involved in applying the medical malpractice statute of limitations does not raise an issue as to which there is a right to trial by jury for purposes of MCR 2.116(I)(3), I would remand this matter to the trial judge for him to decide, as the trier of fact, whether the alleged mutual agency relationship existed between defendants.
MCL 600.5805(4); MSA 27A.5805(4), MCL 600.5838(1); MSA 27A.5838(1).
155 Mich App 343; 399 NW2d 511 (1986).
Martin, Dean & Webster, Michigan Court Rules Practice, p 308.
See MCR 1.102.