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September 21, 1982


Bronson, P.j., and R. M. Maher and M. Warshawsky,* JJ.

The opinion of the court was delivered by: Warshawsky

Plaintiff, Victor Herman, appeals as of right from an order of the trial court granting defendant's motion for accelerated judgment, holding that plaintiff's claims were barred by the applicable statute of limitations under GCR 1963, 116.1(5).

The standard for determining whether to grant a motion for accelerated judgment requires that all well-pled allegations be accepted as true and construed most favorably to the plaintiff. George v Petoskey, 55 Mich App 433; 223 NW2d 6 (1974). An accelerated judgment is properly entered where the claim is barred because of the statute of limitations. GCR 1963, 116.1(5). Where a factual issue exists, however, it is improper to grant a motion for accelerated judgment. Tonegatto v Budak, 112 Mich App 575; 316 NW2d 262 (1982); Kircos v Goodyear Tire & Rubber Co, 108 Mich App 781; 311 NW2d 139 (1981); H Hirschfield Sons, Co v Colt Industries Operating Corp, 107 Mich App 720; 309 NW2d 714 (1981); Baker v Detroit, 73 Mich App 67; 250 NW2d 543 (1976). See Bashara, The Elusive Summary Judgment Rule: Sifting Through the Maze, 3 Det C L Rev 397 (1976). The trial Judge is not called upon to determine facts.

Examination of plaintiff's complaint and deposition reveals the following asserted factual basis of plaintiff's claims. Victor Herman alleges that in the summer of 1931, at the age of 16, he was an employee of the Ford Motor Company. Plaintiff alleges that the Ford Motor Company contracted with the Soviet Union through a Russian corporation to lend technical assistance in the erection and operation of an automobile plant. Plaintiff asserts that both he and his father executed contracts with the Russian corporation committing them to travel to the Soviet Union and be employed in the building and staffing of the automobile facility in Russia. He asserts that prior to the execution of the agreement, he was interviewed by Ford Motor Company engineers and personnel and that representations were made to him that Ford Motor Company would maintain a representative in the Soviet Union to oversee the involvement of Victor Herman and his co-workers with that country and to render necessary assistance to return him to the United States upon completion of his contractual obligations and termination of his employment in the automobile facility. Plaintiff alleges that Ford Motor Company had a special relationship with the Soviet Union at that time that would enable it to obtain permission for plaintiff to depart the Soviet Union upon request.

Plaintiff, his father, and other members of his family traveled to the Soviet Union in 1931. Upon arrival, the family members began work in the automobile plant in Gorky. Plaintiff, in his deposition, stated that he was arrested by the Russians on July 20, 1938, and accused by the authorities of spying for Ford Motor Company, although in his complaint, plaintiff alleged that he was arrested in 1937. Thereafter, plaintiff was exiled to Siberia and was otherwise detained by the Soviet authorities until 1976 when he was allowed to leave the Soviet Union and return to the United States. Plaintiff alleges that during the entire period, from his arrival in the Soviet Union until his return to this country, defendant was in breach of its obligation to him to have representatives available to assist him in his general welfare and in his departure from the Soviet Union. For breach of these obligations plaintiff claims damages.

The trial court initially entered an accelerated judgment in favor of defendant on August 3, 1978, on the ground the statute of limitations barred plaintiff's claim. Plaintiff appealed as of right, and on November 13, 1979, this Court affirmed the trial court in an unpublished per curiam opinion, Docket No. 78-3295. This Court held that plaintiff's tort action was barred in 1940, and his other causes were barred in 1943, there being no statute tolling the applicable statutes of limitations by reason of his imprisonment in the Soviet Union.

Plaintiff sought leave to appeal to the Michigan Supreme Court. The Supreme Court, in a tersely worded order, from which Coleman, C.J., and Ryan, J., Dissented, reversed the lower courts:

"Leave to appeal considered July 15, 1980 and, pursuant to GCR 1963, 853.2(4), in lieu of leave to appeal, we reverse the Court of Appeals and circuit court judgments and remand the case to the Wayne Circuit Court for further proceedings. The statute of limitations on plaintiff's tort and contract claims did not run while the plaintiff was imprisoned in a Soviet prison or was otherwise detained outside the United States by the Soviet government." Herman v Ford Motor Co, 409 Mich 870 (1980).

Upon remand to the trial court, defendant again brought motions for accelerated and summary judgments. The trial court held that even if the statute of limitations was tolled when plaintiff was held by Russian authorities, his claims remained barred by the statute. We reverse.

The statute of limitations in effect in 1938 provided as follows:

"All actions in any of the courts of this state shall be commenced within six (6) years next after the causes of action shall accrue, and not afterward, except as hereinafter specified: Provided, however,

"2. Actions to recover damages for injuries to person or property shall be brought within three (3) years from the time said actions accrue, and not afterwards." 1929 CL 13976.

We reject plaintiff's suggestion that the issue of whether the statute of limitations barred his action could not have been raised by defendant after the Supreme Court's order by virtue of the doctrine of the law of the case. See Edwards v Joblinski, 108 Mich App 371; 310 NW2d 385 (1981). The Supreme Court's order expressly addressed only the legal issue of whether the statute of limitations was tolled while plaintiff was in Russian custody. The Court did not indicate which statute of limitations was applicable to any of plaintiff's claims, nor whether plaintiff's suit was barred by a statute of limitations.

We reject, as incorrect, the trial court's Conclusion that plaintiff's claims accrued on the day the contract expired in 1934. We reiterate what was said in our prior Disposition of this case, and again conclude that plaintiff's causes of action accrued on the date of his imprisonment, alleged ...

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