Sziber v. Stout

M. F. Cavanagh, J.

(dissenting). I cannot agree with the narrow interpretation which the majority places upon MCL 691.1402; MSA 3.996(102). This Court’s reasoning in May v Wolverine Tractor & Equipment Co, 107 Mich App 163; 309 NW2d 594 (1981), is more persuasive and achieves a more logical and equitable result. Accordingly, I would hold that third-party plaintiffs could properly implead third-party defendants pursuant to a claim for contribution.

I would also hold that the trial court erred in barring defendant’s claim for contribution because more than two years had lapsed since the accident occurred. As a general rule, the fact that the statute of limitations bars the original plaintiffs action does not bar a suit for contribution between co-tortfeasors, since that cause of action (i.e., contribution) does not accrue until payment of damages to the plaintiff. See Duncan v Beres, 15 Mich App 318; 166 NW2d 678 (1968), Doall v Michigan Consolidated Gas Co, 23 Mich App 454; 179 NW2d 26 (1970), Anno: When Statute of Limitations Commences to Run Against Claim for Contribution or Indemnity Based on Tort, 57 ALR3d 867. The rationale for this rule is that a defendant should not suffer because a plaintiff arbitrarily decided to *460bring suit against only one of two or more tortfeasors.

Application of this general rule to the instant case would require a finding that the trial court erred in granting accelerated judgment to third-party defendants on the basis that the original plaintiffs’ cause of action against third-party defendants would have been barred by the two-year statute of limitations applicable to negligence actions against county road commissions. See e.g., Globig v Greene & Gust Co, 184 F Supp 530 (ED Wis, 1960), and 57 ALR3d 867, 912-921.

For the foregoing reasons, I would reverse the lower court’s grant of accelerated judgment.