Hopkins v. Graham

743 N.W.2d 882 (2008) Roberta HOPKINS, Personal Representative of the Estate of Olive Herford, Deceased, Plaintiff-Appellee, v. James E. GRAHAM, Jr., M.D., James E. Graham, Jr., M.D., P.C., Farah Taher, M.D., and Phan Anh Nguyen, Defendants-Appellees, and Hurley Medical Center, Defendant-Appellant. Docket No. 133208. COA No. 261867. Supreme Court of Michigan. February 1, 2008. By order of May 30, 2007, the application for leave to appeal the April 20, 2006 judgment of the Court of Appeals was held in abeyance pending the decision in Mullins v. St. Joseph Mercy Hosp. (Docket No. 131879). On order of the Court, the case having been decided on November 28, 2007, 480 Mich. 948, 741 N.W.2d 300 (2007), the application is again considered and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals because the court erred in invoking the doctrine of equitable tolling under these circumstances. Devillers v. Auto Club Ins. Ass'n, 473 Mich. 562, 586-587 n. 65, 702 N.W.2d 539 (2005). However, because the plaintiff falls within the class of plaintiffs entitled to relief identified in our order in Mullins, supra, we REMAND this case to the Genesee Circuit Court for entry of an order denying the defendant's motion for summary disposition and for further proceedings *883 not inconsistent with this order and the order in Mullins. MICHAEL F. CAVANAGH and WEAVER, JJ., concur in the result. MARILYN J. KELLY, J., concurs and states as follows: I concur with the conclusion that our decision in Waltz v. Wyse[1] does not bar plaintiffs claim. But, as explained in my statement in Mazumder v. Univ. of Michigan Bd. of Regents,[2] given the state of the law when the Court of Appeals rendered its decision, resort to the doctrine of equitable tolling was highly appropriate. NOTES [1] Waltz v. Wyse, 469 Mich. 642, 677 N.W.2d 813 (2004). [2] Mazumder v. Univ. of Michigan 13d. of Regents, ___ Mich. ___, 743 N.W.2d 889, 2008 WL 271649 (2008).