REVISED JUDICATURE ACT OF 1961
Act 236 of 1961
600.5852 Death before period of limitations has run or within 30 days thereafter; commencement of action; death or legal incapacitation of personal representative; limitation on commencement of action.
Sec. 5852.
(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 incapacitated.
(4) Notwithstanding subsections (1) to (3), an action shall not be commenced under this section later than 3 years after the period of limitations has run.
History: 1961, Act 236, Eff. Jan. 1, 1963 ;-- Am. 1988, Act 221, Eff. Jan. 1, 1989 ;-- Am. 2012, Act 609, Eff. Mar. 28, 2013
Compiler's Notes:
Enacting section 1 of Act 609 of 2012 provides:
"Enacting section 1. Sections 2912e, 5852, and 6013 of the revised judicature act of 1961, 1961 PA 236, MCL 600.2912e, 600.5852, and 600.6013, as amended by this amendatory act apply only to actions in which the cause of action arose on or after the effective date of this amendatory act."
Notes of Decisions
Mazumder v. Univ. of Michigan Bd. of Regents, 715 N.W.2d 96 (Mich. Ct. App. 2006).
· cites it 78× “5856, on which plaintiff relied in calculating the period of limitations for filing her action was no longer applicable, and thus the saving period for filing a wrongful death action, MCL 600.5852, expired during the required 182-day statutory notice period for filing a medical…”
Waltz v. Wyse, 677 N.W.2d 813 (Mich. 2004).
· cites it 20× “§ 600.5852. [2] Specifically, we must determine whether § 5856(d), the medical malpractice notice tolling provision, tolls the additional period permitted for filing wrongful death actions under the wrongful death saving provision, § 5852.”
Ward v. Siano, 730 N.W.2d 1 (Mich. Ct. App. 2007).
· cites it 68× “In Waltz , our Supreme Court stated that the two-year period contained in the wrongful death saving statute, MCL 600.5852, was not tolled by serving a medical malpractice defendant with a notice of intent to sue.”
Lindsey v. Harper Hosp., 564 N.W.2d 861 (Mich. 1997).
· cites it 26× “§ 600.5852; M.S.A. § 27A.5852. Specifically, we must decide whether the statute of limitations saving provision began to run when the probate court issued plaintiff letters of authority as temporary personal representative on September 14, 1990, or when the probate court issued…”
Boodt v. Borgess Med. Ctr., 728 N.W.2d 471 (Mich. Ct. App. 2007).
· cites it 38× “Plaintiff argues that the wrongful death saving provision, MCL 600.5852, would grant the successor personal representative additional time in which to commence a new suit.”
Farley v. Advanced Cardiovascular Health Specialists, PC, 703 N.W.2d 115 (Mich. Ct. App. 2005).
· cites it 18× “The trial court ruled that, because Farley filed a notice of intent during the two-year period in which the wrongful death saving provision (MCL 600.5852) allows a personal representative to commence an action, the notice tolling provision (MCL 600.”
Johanna Woodard v. Univ. of Mich Med. Ctr, 476 Mich. 545 (Mich. 2006).
· cites it 6× “MCL 600.5852. (13) A successor personal representative has two years after appointment to file an action on behalf of the estate as long as the action is filed within three years after the period of limitations has run.”
Vanslembrouck v. Halperin, 747 N.W.2d 311 (Mich. Ct. App. 2008).
· cites it 13× “2d 813 (2004) (the notice tolling provision does not toll the wrongful death saving provision, MCL 600.5852). Whether defendant is correct appears to be an issue of first impression.”
McLean v. McElhaney, 711 N.W.2d 775 (Mich. Ct. App. 2006).
· cites it 10× “[MCL 600.5852.] *778 However, MCL 600.5852 is a saving statute and not a statute of limitations.”
Ligons v. Crittenton Hosp., 803 N.W.2d 271 (Mich. 2011).
· cites it 6× “14 The Court of Appeals concluded that no tolled time remained during which plaintiff could refile his suit after defendants successfully challenged his AOMs. Thus, dismissal with prejudice was required on statute-of limitations-grounds.”
Ousley v. McLaren, 691 N.W.2d 817 (Mich. Ct. App. 2005).
· cites it 10× “Specifically, Borgess pointed to MCL 600.5852, which allows a personal representative of an estate to bring an action within two years after letters of authority are issued, as long as the lawsuit is brought within three years after the two-year general period of limitations…”
Hawkins v. Reg'l Med. Labs., PC, 329 N.W.2d 729 (Mich. 1982).
· cites it 10× “610, the predecessor of MCL 600.5852; MSA 27A.5852, which now reads: *435 "If a person dies before the period of limitations has run or within 30 days after the period of limitations has run, an action which survives by law may be commenced by or against the executor or…”
— Mich. Comp. Laws § 600.5852(1) — 22 cases
— Mich. Comp. Laws § 600.5852(2) — 3 cases
— Mich. Comp. Laws § 600.5852(4) — 2 cases
— Mich. Comp. Laws § 600.5852(5) — 1 case
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