Opinion Analysis: Employer's action, not decision, triggers limitations period for a claim under the Whistleblower Protection Act

Trial Lawyers Takeaway: An employer's action, not its decision, triggers the 90-day limitations period to bring a claim under Michigan's Whistleblower's Protection Act.

Millar performed mechanical and plumbing inspections for the Construction Code Authority, a government agency. Two of the municipalities who utilized the Authority for inspections asked the Authority to stop sending Millar as an inspector. A little over two weeks later, the Authority drafted a letter to Millar, ordering him to do not further work in those municipalities. But it was not until the next week that the Authority actually delivered the letter to Millar.

Millar sought to bring a Whistleblower claim, arguing that he was fired because he had honestly reported violations of the building codes by the municipalities. The question before the Court was what event actually triggered the 90-day limitations period to bring a Whistleblower claim under Michigan’s Whistleblower’s Protection Act (MCL 15.361 et seq.).

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Opinion Analysis: Court goes into details of calculating time for statute of limitations

Trial Lawyers’ Bottom Line: When calculating limitations period for medical malpractice cases under the Revised Judicature Act, fractions of days are rounded to provide whole days of counting and thus more time.

Haksluoto went to the emergency room due to stomach pains. After a CT scan, a doctor at Mt. Clemens Regional Medical Center said the plaintiff was fine to return home. Ten days later, Haksluoto returned to the emergency room, and doctors determined that he needed immediate surgery. Haksluoto sued for medical malpractice for the misinterpretation of the original CT scan.

Two statutes determined when Haksluoto needed to bring his suit.  Under MCL 600.5805(6), he had two years to file his medical malpractice claim, creating a deadline of December 26, 2013. In addition, the Revised Judicature Act (MCL 600.101 et seq.) requires a prospective medical-malpractice plaintiff to give 182-days notice to a potential defendant before filing a claim. The combined effect of the statutes is to create two-year limitations period, within which Haksluoto needed to serve his Notice of Intent (NOI) to start the 182-day clock.  Then he had to wait 182 days before he could file his suit.  While those 182 days are counting the statute of limitations is tolled.  And once the 182 days pass, the counting of the statute of limitations resumes.

Haksluoto waited until the very last day of limitations period, December 26, 2013, to serve his NOI. This started the 182 days of tolling under Revised Judicature Act. If Haksluoto was considered to have filed his NOI on December 26, then he needed to file suit on June 26, 2014. But Haksluoto did not file his suit until June 27. The hospital filed a motion for summary disposition, arguing that the suit was time-barred. The trial court denied the motion, but the Court of Appeals reversed.

The panel held that MCR 1.108, which is the rule that determines the calculation of time, said the 182-day notice period began the day after Haksluoto served the NOI—meaning December 27, 2013—and expired on June 26, 2014. Because this meant that the NOI did not commence until after the two-year limitations had expired, the NOI could not have tolled that limitations period. The Court of Appeals wrote that its holding “means that a plaintiff who serves an NOI on the last day of the limitations period is legally incapable of filing a timely complaint and is, in effect, deadlocked from timely filing a suit.”  The Court granted leave to appeal.

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Opinion Analysis: Court clarifies differences between statutes of limitations and statutes of repose

Trial Lawyers’ Bottom Line: if statute counts from when claim accrued, it is a statute of limitations and can be tolled by fraudulent concealment; statute of repose cannot be tolled.

This case revolved around the company ePrize, which specialized in online sweepstakes and interactive promotions.  The plaintiffs were former employees of ePrize, who had acquired ownership interests in the company.  They said the defendant, founder of ePrize Joshua Linkner, had promised them that their ownership interests would never be diluted or subordinated.

The plaintiffs sued for various claims, including LLC member oppression, breach of contract, and breach of fiduciary duty.  The trial court granted summary judgment for the defendants, however, because the plaintiffs’ claims were untimely.  The Court of Appeals reversed.  The Supreme Court took the case to determine whether the statute was one of limitations or repose.

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