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Lampkin v. McIntosh12/27/2002
UNPUBLISHED
In this medical malpractice case, plaintiff appeals as of right the trial court's order granting summary disposition to defendants pursuant to MCR 2.116(C)(7). We affirm.
I. Basic Facts and Procedural History
This case arose from medical care and treatment that defendants provided to plaintiff October 23, 1996, when plaintiff presented to defendant Henry Ford Hospital for delivery of her child. Plaintiff alleged that during the course of delivery, she suffered a cervical laceration resulting in significant blood loss. Plaintiff also alleged that she suffered a postpartum pituitary apoplexy.
On October 21, 1998, plaintiff served defendants with a notice of intent to file a claim pursuant to MCL 600.2912b. On April 21, 1999, plaintiff filed her complaint in the lower court. On the same day, the summons and complaint were given to a private process server to serve on all defendants. On April 23, 1999, the process server hand-delivered the summons and complaint to a secretary at defendant Henry Ford Hospital's Legal Department. Returns of service were filed with the lower court on May 5, 1999.
Defendants answered the complaint on May 14, 1999, and asserted the statute of limitations and improper service as affirmative defenses. The parties engaged in active discovery, but the case was voluntarily dismissed without prejudice on October 19, 2000. On October 10, 1999, nine days before the first action was dismissed, plaintiff filed a second complaint asserting identical claims of medical malpractice. Defendant Ramsey was not served with this second complaint.
On November 9, 2000, defendants moved for summary disposition pursuant to MCR 2.116(C)(7) contending that the statute of limitations had expired. Further, they contended that the statute of limitations was not tolled during the pendency of the first action, because service of process in that action was defective. The trial court agreed, finding that it was undisputed that service was not made in compliance with MCR 2.105, defendants did not waive service, and the statute was not tolled under MCL 600.5856. Accordingly, the trial court entered an order dismissing the second action.
II. Standard of Review and Rules of Construction
We review de novo a trial court's ruling on a motion for summary disposition brought pursuant to MCR 2.116(C)(7). Rheaume v Vandenberg, 232 Mich App 417, 420-421; 591 NW2d 331 (1998). In reviewing the record to determine if the moving party was entitled to judgment as a matter of law, we consider all affidavits, pleadings, and other documentary evidence submitted by the parties and construe the pleadings in favor of the non-moving party. Id. Absent a disputed question of fact, the determination whether a cause of action is barred by a statute of limitations is a question of law that this Court reviews de novo. Colbert v Conybeare Law Office, 239 Mich App 608, 613-614; 609 NW2d 208 (2000). As a general rule, exceptions to statutes of limitations are strictly construed. Mair v Consumers Power Co, 419 Mich 74, 80; 348 NW2d 256 (1984).
This Court also reviews de novo issues involving statutory construction. Haliw v City of Sterling Heights, 464 Mich 297, 302; 627 NW2d 581 (2001). The primary goal of statutory interpretation is to give effect to the Legislature's intent. Rheaume, supra at 422. To discern legislative intent, this Court looks first to the specific language employed in the statute. Id. The Legislature is presumed to have intended the meaning it plainly expressed. Id. If the language of a statute is clear and unambiguous, judicial construction is not permitted, and the statute must be applied as writt
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