ESTATE OF WANDA JESSE, by BEVERLY JUNE GRAY, Personal Representative, Plaintiff-Appellant,
LAKELAND SPECIALTY HOSPITAL AT BERRIEN CENTER, Defendant-Appellee.
Berrien Circuit Court LC No. 17-000215-NM
Before: Meter, P.J., and Fort Hood and Borrello, JJ.
MCL 600.5852's saving provision, when the statute of
limitations for a medical malpractice claim has otherwise
lapsed, the personal representative of an estate is given two
years "from the date letters of authority are issued
to" her to bring a claim on behalf of the estate. In
this case, we are called upon to determine when the letters
of authority are "issued." Reviving the precedent
temporarily set by Lentini v Urbancic, 262 Mich.App.
552, 555-559; 686 N.W.2d 510 (2004), vacated and remanded on
other grounds 472 Mich. 885 (2005), we conclude that the
letters of authority are "issued" on the date they
are signed by the probate judge. Because plaintiff did not
file the action within two years of the date the probate
judge signed the letters of authority, we affirm the trial
court's dismissal of the action as untimely. MCR
facts underlying this dispute are not contested.
Plaintiff's decedent, Wanda Jesse, died on September 15,
2013, allegedly due to defendant's malpractice. Under MCL
600.5805(8), the statute of limitations for decedent's
medical malpractice claim would have expired on September 15,
2015, absent application of the savings provision set forth
in MCL 600.5852. The probate judge signed the letters of
authority establishing decedent's estate on September 9,
2015, but the letters were not mailed to the personal
representative of the estate, Beverly June Gray, until
September 25, 2015. Plaintiff filed the instant complaint for
medical malpractice on September 22, 2017.
moved for summary disposition under MCR 2.116(C)(7), arguing
that, under MCL 600.5852(2), the statutory period of
limitations had ended on September 9, 2017-two years from the
date the probate court signed the letters of authority.
Plaintiff disagreed, arguing that the statutory period did
not end until September 25, 2017-two years from the date the
probate court mailed the letters of authority. The trial
court agreed with defendant that the statutory period ended
on September 9, 2017, and granted defendant's motion for
summary disposition. This appeal followed.
only issue presented to us in this appeal is a legal one:
does the statutory period set forth in MCL 600.5852's
saving provision begin to run on the date the letters of
authority are signed or the date they are mailed or otherwise
distributed to the personal representative. MCR 2.116(C)(7)
directs the trial court to grant summary disposition to a
party when there is no question of material fact that the
claim is barred because it was not brought within the
relevant statutory period. "We review de novo a trial
court's grant or denial of summary disposition."
Hoffner v Lanctoe, 492 Mich. 450, 459; 821 N.W.2d 88
(2012). MCL 600.5852 provides, in pertinent part:
(1) If a person dies before the period of limitations has run
or within 30 days after the period of limitations has run, an
action that survives by law may be commenced by the personal
representative of the deceased person at any time within 2
years after letters of authority are issued although the
period of limitations has run.
(2) If the action that survives by law is an action alleging
medical malpractice, the 2-year period under subsection (1)
runs from the date letters of authority are issued to the
first personal representative of an estate. Except as
provided in subsection (3), the issuance of subsequent
letters of authority does not enlarge the time within which
the action may be commenced.
(3) If a personal representative dies or is adjudged by a
court to be legally incapacitated within 2 years after his or
her letters are issued, the successor personal representative
may commence an action alleging medical malpractice that
survives by law within 1 year after the personal
representative died or was adjudged by a court to be legally
is no binding caselaw interpreting the term
"issued" in the context of MCL 600.5852. Yet, this
is not the first time that this question has been presented
to this Court. Rather, we answered the question whether
"issued" denotes the signature date or some later
date in Lentini v Urbancic, 262 Mich.App. 552,
555-559; 686 N.W.2d 510 (2004) (Lentini I). The
Lentini I panel concluded that the letters of
authority are "issued" on the date the probate
judge signs them, reasoning as follows:
The primary goal of judicial interpretation of statutes is to
ascertain and give effect to the intent of the Legislature.
Gladych v New Family Homes, Inc, 468 Mich. 594, 597;
664 N.W.2d 705 (2003). If reasonable minds can differ
regarding the meaning of a statute, judicial construction is
appropriate. Adrian School Dist v Michigan Pub School
Employees Retirement Sys, 458 Mich. 326, 332; 582 N.W.2d
767 (1998). The court must consider the object of the statute
and the harm it is designed to remedy, and apply a reasonable
construction that best ...