Sam v. Balardo

D. C. Riley, J.

This matter involves the applicable statute of limitations for an action alleging legal malpractice. Plaintiff appeals from the jury’s verdict of no cause of action, arguing that the trial court erred in instructing the jury on a two-year statute of limitations.

The dissent quite comprehensively states the legal rationale in favor of a holding that the two-year limit of MCL 600.5805(3); MSA 27A.5805(3), applies both to medical and legal malpractice. In fact, we will not try to improve upon the dissent’s discussion of the statutory evolution and the accompanying case law, and in particular the reasoning with which the dissent analyzes the Supreme Court’s decision in Kambas v St Joseph’s Mercy Hospital of Detroit, 389 Mich 249; 205 NW2d 431 (1973).

The dissent, however, somewhat abruptly changes direction and concludes, based upon a Committee Comment to the Revised Judicature Act and Judge (now Justice) Levin’s dissent in this Court’s Kambas1 decision, that the two-year statute of limitations applies only to medical malprac*22tice, leaving legal malpractice under the general tort limitation of three years.

We cannot agree with this conclusion for a number of reasons. First, we find it relevant (although Judge Levin would disagree) that the term "malpractice of physicians, surgeons or dentists” in 1915 CL 12323(3), was altered in MCL 600.5805(3); MSA 27A.5805(3), to read merely "malpractice”.

Second, the case law, as pointed out by the dissent, uniformly employs the two-year statute of limitations for legal malpractice.

Third, as Judge Levin pointed out in his Kambas dissent, states such as New York and Ohio, which have laws similar to Michigan’s in that the term "malpractice” is used but never specifically defined, include both legal and medical malpractice under their "malpractice” statutes of limitations. Kambas v St Joseph’s Mercy Hospital of Detroit, 33 Mich App 127, 138-139; 189 NW2d 879 (1971).

Finally, and most importantly, we do not agree with the dissent that the Committee Comment is an "explicit” statement of legislative intent. The Comment merely states that "[ejxisting time periods have been used”. There are two possible interpretations of this phrase. The dissent asserts that the Comment means that every cause of action existing prior to the Revised Judicature Act retains the same applicable statute of limitations subsequent to the new law. We read the Comment to refer solely to the fact that, for example, the "malpractice” statutory period remains at two years. We do not find that the Comment precludes a concurrent finding that the Legislature expanded the set of causes of action that constitute "malpractice”.

*23The result reached by the dissent, while reasonably supported by its reading of the Committee Comment, is inconsistent with plain common sense. To, on one hand, define an action against an attorney for his or her breach of professional standards as malpractice, while, on the other hand, exempt such an action from a statute of limitations expressly applicable to "actions charging malpractice”, does little but add confusion, uncertainty, and a sense of absurdity about the law to both the legal community and the general public. This problem is even more apparent now that the Legislature, in response to the Supreme Court’s Kambas decision, has amended MCL 600.5838; MSA 27A.5838, to allow for "malpractice” actions against nurses, physical therapists, and various other occupations. We find it untenable that legal malpractice, a cause of action long-recognized in Michigan, does not have the same statute of limitations as applied to these recently created malpractice actions.

Affirmed. No costs.

T. M. Burns, P. J., concurred.

33 Mich App 127; 189 NW2d 879 (1971).