MCL 600.5852, known as the Michigan wrongful-death saving provision, provides as follows:
(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) [concerning the death or legal incapacity of a personal representative], the issuance of subsequent letters of authority does not enlarge the time within which the action may be commenced.
(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.
MCL 600.5852 is not a statute of limitations; rather, it is a saving provision designed to preserve actions that survive death in order that the representative of the estate may have a reasonable time to pursue such actions. Section 5852 clearly provides that it is an exception to the limitation period, allowing the commencement of a wrongful death
action as many as three years after the applicable statute of limitations has expired.
In a medical malpractice case decided by the State of Michigan Court of Appeals on June 13, 2024, the plaintiff’s husband died on January 24, 2018. More than four years later, on July 1, 2022, plaintiff’s attorney served defendants with a “Notice of Intent” to file a medical-malpractice claim, which identified the claimant as “The Estate of Christopher P. Eversole, deceased, via Connie M. Eversole, Christopher’s wife, and anticipated Personal Representative of his Estate.” Plaintiff then commenced the medical-malpractice and wrongful-death action on January 4, 2023. The complaint was brought in the name of “Connie M. Eversole As Personal Representative of the Estate of Christopher P. Eversole, Deceased,” and plaintiff’s attorney signed it. However, plaintiff had not yet been appointed personal representative of the estate. Instead, on January 30, 2023, 26 days after plaintiff filed the action, the probate court issued letters of authority appointing plaintiff personal representative of Eversole’s estate.
Defendants moved for summary disposition under MCR 2.116(C)(5) and (C)(7). The trial court held that the relation-back doctrine did not apply, as there was no dispute that plaintiff was aware she did not have letters of authority at the time she filed suit.
The Michigan appellate court held: “Contrary to defendants’ argument, relating back a personal representative’s powers under MCL 700.3701 to give effect to a prematurely-filed wrongful-death action does not defeat the clear
legislative intent expressed in MCL 600.2922(2), authorizing only the personal representative to bring a wrongful-death action. Rather, relation back of a personal representative’s appointment under MCL 700.3701 preserves an estate’s otherwise valid wrongful-death claim by providing a means to cure the initial lack of standing. Thus, MCL 700.3701’s relation-back provision can be read harmoniously with MCL 600.2922(2) to advance the common purpose of preserving an estate’s valid and timely wrongful-death claim.”
Source Eversole v. Nash, COA No. 366556.
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