PRYBER
v.
MARRIOTT CORPORATION
Docket No. 48150.
Michigan Court of Appeals.
Decided June 3, 1980.Ray H. Boman, for plaintiffs.
Jack H. Erps (by Ellen C. Nowicki), for defendant.
Before: R.B. BURNS, P.J., and J.H. GILLIS and D.C. RILEY, JJ.
J.H. GILLIS, J.
This is a personal injury action. Plaintiffs allege that as a result of defendant's negligence plaintiff Barbara Pryber was injured while at defendant's amusement park in Gurnee, Illinois. The injury occurred on July 3, 1976. Plaintiffs' complaint was filed on June 29, 1979. Defendant moved for accelerated judgment, GCR 1963, 116.1(5), raising a statute of limitations defense. The motion was granted on August 29, 1979. Plaintiffs appeal as of right. GCR 1963, 806.1.
Plaintiffs first contend that the defendant waived the statute of limitations defense by failing to raise it in its first responsive pleading. The contention is without merit.
Defendant filed its answer on July 26, 1979. An amended answer was filed within 15 days. The statute of limitations defense was raised in the *53 amended pleading. The failure by a defendant to include an affirmative defense in his first responsive pleading generally waives that defense. GCR 1963, 116.1, 111.3. However, GCR 1963, 118.1 provides that a party may amend his pleading once as a matter of course within 15 days after it is served if the pleading is one to which no responsive pleading is required and the action has not been placed on the trial calendar. The amended pleading relates back to and becomes a part of the original pleading. GCR 1963, 118.4. Raising the statute of limitations defense in this manner supersedes the imposition of a waiver based on Rule 111. Manufacturers Construction Co v Covenant Investment Co, 43 Mich. App. 123, 125-126; 204 NW2d 54 (1972), 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 200.
Plaintiffs' next contention presents a more difficult problem. Plaintiff Barbara Pryber's injury occurred on July 3, 1976. Plaintiffs' cause of action accrued on that date. MCL 600.5827; MSA 27A.5827. On that date, MCL 600.5861(2); MSA 27A.5861(2) read:
"The period of limitations applicable to a claim accruing outside of this state shall be either that prescribed by the law of the place where the claim accrued or by the law of this state, whichever bars the claim."
The applicable Illinois statute, Ill Rev Stat, Ch 83, § 15, provides a two-year period in which an action for personal injuries can be brought. The applicable Michigan statute, MCL 600.5805(7); MSA 27A.5805(7), provides a three-year period in which an action for personal injuries can be brought. Thus, plaintiffs' cause of action was barred by application of the Illinois statute of limitations on July 3, 1978.
*54 However, 1978 PA 542, § 1, effective December 22, 1978, amended § 5861(2) to read as follows:
"An action based upon a cause of action accruing without this state shall not be commenced after the expiration of the statute of limitations of either this state or the place without this state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of this state the statute of limitations of this state shall apply. This amendatory act shall be effective as to all actions hereinafter commenced and all actions heretofor commenced now pending in the trial or appellate courts." (Emphasis supplied.) MCL 600.5861; MSA 27A.5861 as amended.
The present action was filed on June 29, 1979. The lower court ruled that MCL 600.5861(2); MSA 27A.5861(2), prior to its amendment, controlled and effectively barred plaintiffs' cause of action. The lower court reasoned that the Legislature was without authority to revive a cause of action which had been barred by the statute of limitations. On this basis, accelerated judgment was granted.
Plaintiffs contend that the lower court erred, arguing that the Legislature has the authority to revive by statute a cause of action which has been barred.
A two-step analysis is required to resolve the issue. First, we must determine the legislative intent underlying the amendatory act. Second, we must determine whether the Federal or state constitutions prevent the Legislature from carrying out its intention.
At the outset, we note that MCL 600.5861; MSA 27A.5861 is a statute of limitations rather than a choice-of-law statute. The statute "borrows" the limitations rule of another state and makes it the law of the forum for the purposes of the particular *55 litigation. See Leflar, American Conflicts Law, § 128, p 307.
Statutes of limitations operate prospectively unless an intent to have the statute operate retrospectively clearly and unequivocally appears from the context of the statute itself. In re Davis' Estate, 330 Mich. 647, 652; 48 NW2d 151 (1951), 20 Michigan Law & Practice, Statute of Limitations, § 3, p 546. The last sentence of § 5861, which reads: "This amendatory act shall be effective as to all actions hereinafter commenced and all actions heretofor commenced now pending in the trial or appellate courts", clearly indicates the legislative intent that the statute be applied retroactively. The effect of such application under the facts of the instant case is to revive the cause of action which had been barred by the running of the prior statute of limitations.
This, however, does not end our inquiry into the legislative intent. The reason for the continuation of that inquiry is the existence of MCL 600.5869; MSA 27A.5869,[1] which provides in relevant part:
"All actions * * * shall be governed and determined according to the law under which the right accrued, in respect to the limitations of such actions"
The statutes are in apparent conflict. Section 5869 indicates that the applicable statute of limitations is that in effect at the time plaintiffs' cause of action accrued, MCL 600.5861(2); MSA 27A.5861(2), prior to its amendment. See Kennedy v Local 38, United Brewery, Flour, Cereal, Soft Drink & Distillery Workers of America, 3 Mich. App. 700, 705-706; 143 NW2d 596 (1966). Section *56 5861 as amended indicates that it is the applicable statute of limitations.
Statutes in pari materia are those which relate to the same thing or which have a common purpose. Palmer v State Land Office Board, 304 Mich. 628; 8 NW2d 664 (1943). The statutes here are in pari materia. Where two statutes are in pari materia and are in irreconcilable conflict, the one last enacted will control or be regarded as an exception to or qualification of the earlier statute. Metropolitan Life Ins Co v Stoll, 276 Mich. 637, 640-641; 268 N.W. 763 (1936). Application of this rule requires the conclusion that the Legislature intended that § 5861 apply in the instant case. This conclusion is reinforced when one considers that the Legislature when amending a statute must be presumed to have knowledge of existing statutes. Skidmore v Czapiga, 82 Mich. App. 689, 691; 267 NW2d 150 (1978).
Having concluded that the Legislature, in enacting 1978 PA 542, § 1, intended to revive causes of action which had been barred by the application of MCL 600.5861(2); MSA 27A.5861(2), we must next determine whether the Legislature has the authority to effect this intention.
Federal constitutional law on this issue is clear. An act of state legislation which has the effect of lifting the bar of a statute of limitations so as to restore a remedy which has been lost through lapse of time is not per se violative of the Fourteenth Amendment to the United States Constitution. Chase Securities Corp v Donaldson, 325 U.S. 304, 311; 65 S. Ct. 1137; 89 L. Ed. 1628 (1945), citing Campbell v Holt, 115 U.S. 260; 6 S. Ct. 209; 29 L. Ed. 483 (1885). See also International Union of Electrical, Radio & Machine Workers, AFL-CIO, Local 790 v Robins & Myers Inc, 429 U.S. 229; 97 S Ct *57 441; 50 L. Ed. 2d 427 (1976). Thus, the Federal constitution will not prevent the Legislature from effecting its intention in this regard.
The same conclusion obtains as a matter of state constitutional law. The right to defeat a claim by interposing a statute of limitations is not a vested right. The right to defeat a claim by the interposition of a statute of limitations is a right which may be removed by the Legislature. Evans Products Co v State Board of Escheats, 307 Mich. 506, 541-545; 12 NW2d 448 (1943), Rookledge v Garwood, 340 Mich. 444, 457; 65 NW2d 785 (1954), Lahti v Fosterling, 357 Mich. 578, 589; 99 NW2d 490 (1959).
On the basis of the foregoing analysis, we hold that the lower court erred in determining that the Legislature was without authority to revive a cause of action which had been barred by the statute of limitations and in granting the defendant accelerated judgment. That judgment is reversed and the case remanded for trial.
Reversed and remanded.
NOTES
[1] 1961 PA 236, § 5869, effective January 1, 1963.