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Tolliver v. Vandenbelt6/19/2003
d would have expired on December 17, 2000. Plaintiff filed her notice of intent on April 25, 2000, which triggered the 182-day "no filing" notice period. MCL 600.2912b(1). The 182-day period (during which time plaintiff could not file suit) expired on October 24, 2000. As of October 24, 2000, the statute of limitations had fifty-four days to run. Therefore, during the notice period, a claim would not have been barred by the statute of limitations. MCL 600.5856(d). Accordingly, pursuant to Omelenchuk, § 5856(d) was inapplicable, the limitation period was not tolled or "extended," and plaintiff was required to file her lawsuit before the expiration of the standard, two-year statute of limitation, December 17, 2000, in order to avoid the two-year time bar. Plaintiff failed to file her lawsuit until January 29, 2001 - after the limitation period had expired. Thus, the trial court correctly ruled that plaintiff's complaint was barred by the statute of limitations.
Plaintiff raises the unpreserved claim that §5856(d) is unconstitutional because its application in this case restricts her right of access to the courts. However, it would be inappropriate for us to consider this issue because the tolling provision is simply inapplicable where plaintiff's notice period ended before the statute of limitations period expired. See Auto Club Ins Ass'n v City of Farmington Hills, 220 Mich App 92, 100-101; 559 NW2d 314 (1996).
Plaintiff also contends that the tolling provision of § 5856(d) treats similarly situated medical malpractice plaintiffs differently depending solely on when they file their mandatory notice of intent to file a lawsuit and therefore violates plaintiff's right to equal protection, Const 1963, art 1, § 2. Pursuant to Omelenchuk, supra, at 574, the tolling period challenged by plaintiff is inapplicable to her because the 182-day notice/non-suit period of § 2912b(1) ended well before the two-year limitations period expired. Because plaintiff was not precluded from filing her complaint by the interaction of § 2912b and § 5856(d), it is unnecessary to consider her equal protection claim. Traylor v Auditor General, 360 Mich 146, 154; 103 NW2d 769 (1960) (" ew principles of judicial interpretation are more firmly grounded than this: a court does not grapple with a constitutional issue except as a last resort").
Affirmed.
Jane E. Markey
Henry William Saad
Kurtis T. Wilder
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