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Tolliver v. Vandenbelt6/19/2003
UNPUBLISHED
Plaintiff appeals from and we affirm the trial court's order granting summary disposition to defendants in this medical malpractice action.
Plaintiff contends that the trial court erred as a matter of law in its interpretation of the interaction between the tolling provision of MCL 600.5856(d) and the notice of intent to sue provision of MCL 600.2912b. MCL 600.2912b establishes a non-suit period lasting up to 182 days that is commenced by the filing of a written notice of intent to file a lawsuit. MCL 600.5856(d) provides that if the notice is filed less than 182 days before the expiration of the two-year period of limitation, MCL 600.5805(5), the statute of limitations is tolled for a period equal to the number of days remaining in the notice period.
Our Supreme Court, in Omelenchuk v City of Warren, 461 Mich 567; 609 NW2d 177 (2000), has explained that the first clause of § 5856(d) sets forth the circumstances in which [§ 5856(d)] is applicable. Thus, if the interval when a potential plaintiff is not allowed to sue ends before the limitation period ends (i.e., if notice is given more than one hundred eighty-two days before the end of the limitation period), then [§ 5856(d)] is of no consequence. In that circumstance, the limitation period is unaffected by the fact that, during that period, there occurs an interval when a potential plaintiff cannot file suit.
If, however, the interval when a potential plaintiff is not allowed to file suit would end after the expiration of the limitation period (i.e., if notice is given one hundred eighty-two days or less before the end of the limitation period), then [§ 5856(d)] applies. In that instance, the limitation period is tolled. [Emphasis supplied.]
The statement in Omelenchuk is consistent with the plain language of § 5856(d), which provides tolling protection if the statute of limitations expires during the notice period. Plaintiff contends that the emphasized portion of Omelenchuk is merely dicta and, therefore, this Court is free to ignore it and interpret the statute anew. We disagree. Parts of judicial decisions may be authoritative though not decisive:
"When a court of last resort intentionally takes up, discusses and decides a question germane to, though not necessarily decisive of, the controversy, such decision is not a dictum but is a judicial act of the court which it will thereafter recognize as a binding decision." In re Cox Estate, 383 Mich 108, 117; 174 NW2d 558 (1970), quoting Chase v American Cartage Co, Inc, 176 Wis 235, 238; 186 NW2d 598 (1922) (emphasis in original).
The Supreme Court in Omelenchuk undertook to interpret the meaning of § 5856(d) and its relationship to § 2912b - the precise issue we must decide. In order to interpret the statutory meaning, it was necessary to consider and interpret the entire statute - though portions of the statute might not be directly implicated by the facts presented in Omelenchuk. Therefore, the Court determined, first, that in certain situations, applicable here, the notice period would not affect the statute of limitations, but that in other situations it would toll the statute. The Court then went on to determine - in those circumstances where the notice period would affect the statute of limitations - exactly what affect the notice period would have. The issue regarding the meaning of the first clause of § 5856(d) was therefore germane to the controversy and the Court's resultant conclusion regarding the non-applicability of the tolling provision, is not dicta.
Here, plaintiff's cause of action arose on December 17, 1998. Absent an applicable tolling provision, the two-year limitation perio
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