If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
HORACE DAVIS, Personal Representative of the UNPUBLISHED
ESTATE OF BRENDA DAVIS, September 14, 2023
Plaintiff-Appellant,
v No. 361469
Ingham Circuit Court
SPARROW HOSPITAL, EDWARD W. SPARROW LC No. 21-000334-NH
HOSPITAL ASSOCIATION, and DAVID D.
HAGAN, M.D.,
Defendants-Appellees.
Before: GLEICHER, C.J., and JANSEN and RICK, JJ.
PER CURIAM.
In this medical-malpractice action, plaintiff appeals as of right the trial court’s order
granting summary disposition in favor of defendants under MCR 2.116(C)(7) (statute of
limitations). In light of recent binding precedent issued by this Court, we agree with plaintiff and
reverse the trial court’s decision.
I. FACTUAL BACKGROUND
This case involved the death of decedent, Brenda Davis. Davis presented at defendant
Sparrow Hospital on August 23, 2018, with a forehead abrasion, abdominal pain, nausea, and
vomiting. A scan showed that she likely had a small bowel obstruction. Dr. David Hagan
performed a general surgical consult, which included diagnostic studies and scans. According to
plaintiff, although there was evidence of a small bowel obstruction, Dr. Hagan failed to “start either
conservative or surgical treatment,” and the decedent’s “condition continued to deteriorate during
the hospitalization.” On August 30, 2021, Dr. Hagan performed an exploratory laparotomy, which
revealed that Davis was indeed suffering a bowel obstruction. However, her unstable condition
apparently prevented Dr. Hagan from performing surgery to resolve the issue. Davis passed away
the same day.
For purposes of this appeal, we assume an accrual date of August 23, 2018, which is the
date that Davis first presented at the hospital with signs of a bowel obstruction. The applicable
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statute of limitations provides that malpractice actions must be brought within two years.
MCL 600.5805(8). Therefore, the end of the statutory period of limitations would have been
August 24, 2020.1 On June 12, 2020, plaintiff served his Notice of Intent (NOI) on defendants,
which tolled the statutory limitations period for 182 days. See MCL 600.2912b(1). On May 20,
2021, plaintiff filed the complaint. Under normal circumstances, applying the tolling provision of
MCL 600.5856(c), the deadline to file a complaint would have been February 22, 2021. However,
the normal statutory time limits for this case were interrupted by the COVID-19 pandemic, which
disrupted the day-to-day functioning of Michigan’s courts.
On March 23, 2020, our Supreme Court entered AO 2020-3, which originally provided:
In light of the continuing COVID-19 pandemic and to ensure continued
access to courts, the Court orders that:
For all deadlines applicable to the commencement of all civil and probate
case-types, including but not limited to the deadline for the initial filing of a
pleading under MCR 2.110 or a motion raising a defense or an objection to an initial
pleading under MCR 2.116, and any statutory prerequisites to the filing of such a
pleading or motion, any day that falls during the state of emergency declared by the
Governor related to COVID-19 is not included for purposes of MCR 1.108(1).
This order is intended to extend all deadlines pertaining to case initiation
and the filing of initial responsive pleadings in civil and probate matters during the
state of emergency declared by the Governor related to COVID-19. Nothing in this
order precludes a court from ordering an expedited response to a complaint or
motion in order to hear and resolve an emergency matter requiring immediate
attention. We continue to encourage courts to conduct hearings remotely using
two-way interactive video technology or other remote participation tools whenever
possible.
This order in no way prohibits or restricts a litigant from commencing a
proceeding whenever the litigant chooses. Courts must have a system in place to
allow filings without face-to-face contact to ensure that routine matters, such as
filing of estates in probate court and appointment of a personal representative in a
decedent’s estate, may occur without unnecessary delay and be disposed via
electronic or other means.
On May 1, 2020, our Supreme Court subsequently entered Amended AO 2020-3, 505 Mich cxliv
(2020), which modified the fourth paragraph of the order to add that it “in no way prohibits or
restricts a litigant from commencing a proceeding whenever the litigant chooses, nor does it
suspend or toll any time period that must elapse before the commencement of an action or
1
Two years from the accrual date of August 23, 2018, is August 23, 2020, and this is the date the
parties utilize. However, this was a Sunday, which means that the actual date of expiration would
have been August 24, 2020. See MCR 1.108(1).
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proceeding.” (Emphasis added). Finally, on June 12, 2020, the Court entered AO 2020-18, which
provided:
In Administrative Order No. 2020-3, the Supreme Court issued an order
excluding any days that fall during the State of Emergency declared by the
Governor related to COVID-19 for purposes of determining the deadline applicable
to the commencement of all civil and probate case types under MCR 1.108(1).
Effective Saturday, June 20, 2020, that administrative order is rescinded, and the
computation of time for those filings shall resume. For time periods that started
before Administrative Order No. 2020-3 took effect, the filers shall have the same
number of days to submit their filings on June 20, 2020, as they had when the
exclusion went into effect on March 23, 2020. For filings with time periods that
did not begin to run because of the exclusion period, the filers shall have the full
periods for filing beginning on June 20, 2020.
Defendants filed their motion for summary disposition under MCR 2.116(C)(7), arguing
that plaintiff’s complaint was untimely because it fell outside the two-year statutory limitations
period. Defendants contended that AO 2020-3 did not toll the statutory period of limitations for
the emergency period between March 10, 2020 and June 20, 2020, because the AO applied only
to statutory limitations periods that would expire during the emergency period, not to statutory
periods that would expire after the emergency period. Alternatively, defendants contended that
our Supreme Court lacked authority to modify the statute of limitations for medical malpractice
via the AOs. Plaintiff countered that AO 2020-3 applied regardless of whether the statutory period
expired during or after the emergency period and that our Supreme Court had authority under
MCR 1.108 to determine by what method to calculate the two-year period for medical-malpractice
actions.
The trial court agreed with defendants that plaintiff’s claim was untimely. Regarding
tolling, the trial court stated that the AOs applied only to deadlines that would have expired during
the emergency period between March 10, 2020 and June 20, 2020, and not to all deadlines.
Therefore, the trial court ruled that the statutory period of limitations expired on February 21,
2021. The trial court also noted that, contrary to defendants’ argument, the Supreme Court had
authority to issue COVID-19 administrative orders and to modify the applicable statute of
limitations in response to the pandemic. The court ultimately granted defendants’ motion for
summary disposition. Plaintiff moved for reconsideration, which the trial court denied. This
appeal followed.
II. ANALYSIS
A. STANDARD OF REVIEW
We review “de novo a trial court’s decision on a motion for summary disposition, as well
as questions of statutory interpretation and the construction and application of court rules.”
Dextrom v Wexford Co, 287 Mich App 406, 416; 789 NW2d 211 (2010). A motion is properly
granted pursuant to MCR 2.116(C)(7) when “[e]ntry of judgment, dismissal of the action, or other
relief is appropriate because of . . . statute of limitations . . . .”
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In reviewing a motion under MCR 2.116(C)(7), this Court accepts as true the
plaintiff’s well-pleaded allegations, construing them in the plaintiff’s favor. We
must consider affidavits, pleadings, depositions, admissions, and documentary
evidence filed or submitted by the parties when determining whether a genuine
issue of material fact exists. [Hanley v Mazda Motor Corp, 239 Mich App 596,
600; 609 NW2d 203 (2000) (citation omitted).]
“In the absence of disputed facts, whether a cause of action is barred by the applicable statute of
limitations is a question of law, which this Court reviews de novo.” Carter v DTN Mgt Co, ___
Mich App ___, ___; ___ NW2d ___ (2023) (Docket 360772); slip op at 3 n 1. “Furthermore,
questions of law such as those involving the interpretation of statutes, court rules, and our Supreme
Court’s administrative orders are reviewed de novo.” Linstrom v Trinity Health-Mich, ___ Mich
App ___, ___; ___ NW2d ___ (2023) (Docket No. 358487); slip op at 5.
B. ADMINISTRATIVE ORDERS
Plaintiff argues that summary disposition was improper because the complaint was timely
filed, given that AO 2020-3 excluded the emergency period between March 10, 2020 and June 20,
2020, from the calculation of the two-year statutory limitations period. We agree.
The same principles governing the interpretation of court rules apply to the interpretation
of administrative orders. Hubbard v Stier, ___ Mich App ___, ___; ___ NW2d ___ (2013) (Docket
No. 357791); slip op at 4. “[W]e read an administrative order as a whole, reading the individual
words and phrases in context, giving effect to every word and phrase, and avoiding an
interpretation that would render any part surplusage or nugatory.” Id. at ___; slip op at 4-5. We
will enforce unambiguous language as it is written without speculation about our Supreme Court’s
intent. Id. at ___; slip op at 5.
Under the Revised Judicature Act of 1961, MCL 600.101 et seq., the statutory limitations
period for medical-malpractice claims is two years. MCL 600.5805(8). MCL 600.2912b(1)
requires that, not less than 182 days before a malpractice complaint is filed, a plaintiff must serve
an NOI on the defendants. The NOI tolls the two-year statutory limitations period “if during that
period a claim would be barred by the statute of limitations or repose . . . .” MCL 600.5856(c).
Moreover, “the statute is tolled not longer than the number of days equal to the number of days
remaining in the applicable notice period after the date notice is given.” Id.
AO 2020-3 states, in relevant part:
For all deadlines applicable to the commencement of all civil and probate
case-types, including but not limited to the deadline for the initial filing of a
pleading under MCR 2.110 or a motion raising a defense or an objection to an initial
pleading under MCR 2.116, and any statutory prerequisites to the filing of such a
pleading or motion, any day that falls during the state of emergency declared by the
Governor related to COVID-19 is not included for purposes of MCR 1.108(1).
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This order is intended to extend all deadlines pertaining to case initiation
and the filing of initial responsive pleadings in civil and probate matters during the
state of emergency declared by the Governor related to COVID-19.
MCR 1.108(1) provides:
In computing a period of time prescribed or allowed by these rules, by court
order, or by statute, the following rules apply:
(1) The day of the act, event, or default after which the designated period of
time begins to run is not included. The last day of the period is included, unless it
is a Saturday, Sunday, legal holiday, or day on which the court is closed pursuant
to court order; in that event the period runs until the end of the next day that is not
a Saturday, Sunday, legal holiday, or day on which the court is closed pursuant to
court order.
The parties’ primary dispute is whether AO 2020-3 excluded the emergency period between
March 10, 2020 and June 20, 2020, for statutory limitations periods that expired after the
emergency period ended, as defendants argue and the trial court held. Recently, we have explicitly
rejected this position.
In Carter, ___ Mich App at ___; slip op at 1, 3, we accepted the plaintiff’s argument that
AO 2020-3 applied to statutory periods of limitations that expired after the emergency period
ended. The plaintiff alleged that on January 10, 2018, she slipped and fell on ice on property
owned by the defendant. Id. at ___; slip op at 1. She filed her complaint on April 13, 2021. Id.
The statutory period of limitations for personal-injury claims is three years, which meant that,
under normal circumstances, her complaint would have been untimely. Id. The defendant moved
for summary disposition, reasoning that AO 2020-3 did not apply to the plaintiff’s claim because
the statutory period of limitations was set to expire in January 2021, which was long after the
emergency period ended on June 20, 2020. Carter, ___ Mich App at ___; slip op at 2-3. The trial
court agreed with the defendant. Id. at ___; slip op at 3.
In reversing the trial court’s decision, this Court stated that, “under AO 2020-3 and
MCR 1.108(1), any day falling during the state of emergency does not count toward determining
the last day of a statutory limitations period.” Carter, ___ Mich App at ___; slip op at 4 (emphasis
added). We explicitly rejected the trial court’s rationale that AO 2020-3 excluded only those
periods that fell within the emergency period. Id. Instead, we held that the AO applied to “any
day within the state of emergency.” Id. We stated that this interpretation was supported by AO
2020-18:
AO 2020-18 establishes two categories of parties—one whose filings
periods began to run before AO 2020-3 took effect on March 23, 2020, and one
whose filing periods began to run on or after March 23, 2020. Plaintiff falls in the
first category, and she therefore has “the same number of days to submit [her]
filings on June 20, 2020, as [she] had when the exclusion went into effect on
March 23, 2020.” There is no language in AO 2020-18 limiting the first category
to those whose filing deadline fell within the state of emergency. The second
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category identified by the Supreme Court also undermines defendants’
interpretation of the administrative orders. That is, the second category concerns
those whose time period did not begin to run because of AO 2020-3 and therefore
could not have expired during the state of emergency. This demonstrates that all
litigants whose limitations periods had not expired prior to the adoption of AO
2020-3 were entitled to the exclusion of days under AO 2020-3. [Carter, ___ Mich
App at ___; slip op at 4 (emphasis added; alterations in original).]
Therefore, we held that “the trial court erred by holding that AO 2020-3 did not apply to this case.
And applying the administrative orders in this case, we conclude that plaintiff’s complaint was
timely filed.” Id.
Just as in Carter, plaintiff’s statutory deadline in this case was set to expire after the
emergency period. However, our Supreme Court excluded this period even for those whose
deadlines did not expire within the emergency period. Moreover, the entirety of the emergency
period was excluded from calculating the two-year statutory limitations period under MCR 1.108.
When plaintiff served the NOI on June 12, 2020, there were 73 days remaining until the two-year
statutory period of limitations expired on August 24, 2020. The entire 102 days between
March 10, 2020 and June 12, 2020, were tolled despite serving the NOI. This meant that plaintiff
had a total of 175 days remaining in the statutory period of limitations. The 182-day waiting period
for the NOI expired on December 11, 2020, at which point the remaining 175-day statutory period
of limitations began to run. Accordingly, plaintiff had until June 4, 2021, to file the complaint.
Plaintiff filed said complaint on May 20, 2021, which made the complaint timely. The trial court
erred by concluding otherwise and by granting summary disposition in defendants’ favor.
C. SUPREME COURT AUTHORITY
Defendants alternatively contend that, even if AO 2020-3 attempted to toll the two-year
statutory period of limitations, it was beyond our Supreme Court’s authority to do so. We disagree.
As we recently explained:
The Supreme Court has constitutional authority to “establish, modify,
amend, and simplify the practice and procedure in all courts of this state.” Const
1963, art 6, § 5. “This is generally accomplished by the issuance of administrative
orders and the promulgation of court rules.” People v Taylor, ___ Mich ___, ___;
___ NW2d ___ (2022) (Docket No. 154994); slip op at 11 n 11. The Supreme
[Court] is not authorized, however, to issue orders or enact court rules “that
establish, abrogate, or modify the substantive law.” McDougall v Schanz, 461 Mich
15, 27; 597 NW2d 148 (1999). “[M]atters of substantive law are left to the
Legislature.” People v Cornell, 466 Mich 335, 353; 646 NW2d 127 (2002).
[Carter, ___ Mich App at ___; slip op at 5.]
We have already expressly rejected defendants’ argument. In Carter, ___Mich App at ___; slip
op at 6, we stated that the AOs were constitutional. In concluding that the AOs were constitutional,
we reasoned that AO 2020-3 merely modified “the computation of days under MCR 1.108 for
purposes of determining filing deadlines, which is plainly a procedural matter.” Carter, ___ Mich
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App at ___; slip op at 6. We noted that MCR 1.108(1) on its own could sometimes result in more
time being afforded than would otherwise be under a statute of limitations, and we determined that
this demonstrated that “[t]he law of counting time favors this approach, i.e., granting more rather
than less than time to file than permitted by statute, to ensure that the parties receive the entire
amount of time for filing that they are entitled to.” Carter, ___ Mich App at ___; slip op at 6.
We concluded that this was “precisely what the Supreme Court was trying to accomplish
with AO 2020-3, which was issued when there were court closings because of the COVID-19
pandemic.” Carter, ___ Mich App at ___; slip op at 6. Additionally, we rejected framing the
“issue as a dichotomous choice between substantive and procedural law” because “the Court was
also clearly concerned with limiting in-person interactions and protecting court staff and the public
from COVID-19.” Id. Accordingly, we concluded that “the Supreme Court had authority to
manage the operations of Michigan courts amidst a global pandemic” and that AO 2020-3 was
constitutional. Carter, ___ Mich App at ___; slip op at 6. Thus, defendants’ argument lacks merit.
Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.
/s/ Elizabeth L. Gleicher
/s/ Kathleen Jansen
/s/ Michelle M. Rick
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