                            STATE OF MICHIGAN

                            COURT OF APPEALS



JOSEPH RASCHKE,                                                       UNPUBLISHED
                                                                      March 3, 2015
               Plaintiff-Appellant,

v                                                                     No. 318773
                                                                      Genesee Circuit Court
CITIZENS INSURANCE COMPANY OF                                         LC No. 11-095355-NI
AMERICA,

               Defendant,
and

JEFFREY LOUIS RIDLEY, and RIDLEY-
MITCHELL TRUCKING, LLC,

               Defendants-Appellees.



Before: SERVITTO, P.J., and STEPHENS and M. J. KELLY, JJ.

PER CURIAM.

       Plaintiff appeals as of right the trial court’s order granting summary disposition in favor
of defendants Jeffrey Louis Ridley and Ridley-Mitchell Trucking, LLC pursuant to MCR
2.116(C)(7) and (10) and dismissing his personal injury claim against them. We affirm.

       This appeal arises from a personal injury action plaintiff filed on February 1, 2011,
concerning an automobile accident in which he was involved on November 3, 2005. It is
uncontested that the applicable three-year limitations period had passed before plaintiff filed his
complaint. Plaintiff, however, contends that the limitations period was tolled because he was
under the disability of insanity during this three-year period, and therefore the trial court erred in
granting defendants summary disposition. We disagree.

         This Court reviews an order granting summary disposition de novo. Van v Zahorik, 460
Mich 320, 326; 597 NW2d 15 (1999). Summary disposition is properly granted under MCR
2.116(C)(10) where there is no genuine issue regarding any material fact, and the moving party
is entitled to judgment or partial judgment as a matter of law. Smith v Globe Life Ins Co, 460
Mich 446, 454; 597 NW2d 28 (1999). All affidavits, pleadings, depositions, admissions, and



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other documentary evidence filed in the action or submitted by the parties is viewed “in the light
most favorable to the party opposing the motion.” Id.

        Summary disposition is proper under MCR 2.116(C)(7), when a claim is barred by the
statute of limitations. Carmichael v Henry Ford Hosp, 276 Mich App 622, 624; 742 NW2d 387
(2007). “Whether a period of limitations applies to preclude a party’s pursuit of an action
constitutes a question of law that we review de novo.” City of Detroit v 19675 Hasse, 258 Mich
App 438, 444; 671 NW2d 150 (2003).

        A claim of insanity to toll a statute of limitations is generally treated as a question of fact
unless it is unquestionably established that either the plaintiff did not suffer from insanity at the
time the claim accrued or that he had recovered from any such disability more than one year
before he commenced his action. MCL 600.5851(3); Lemmerman v Fealk, 449 Mich 56, 71; 534
NW2d 695 (1995). In order to create a genuine issue of fact, a party must present evidence that
would be admissible at trial. SSC Assoc Ltd Partnership v Gen Ret Sys of City of Detroit, 192
Mich App 360, 364; 480 NW2d 275 (1991). When a cause of action is prima facie barred by the
statute of limitations, the burden of proof is upon the party seeking to enforce the cause of action
to show facts taking the case out of the operation of the statute of limitations. Warren
Consolidated Schools v W R Grace & Co, 205 Mich App 580, 583; 518 NW2d 508 (1994).

        It is uncontested that plaintiff’s claim is governed by MCL 600.5805(10), which states
that, “except as otherwise provided in this section, the period of limitations is 3 years after the
time of the death or injury for all actions to recover damages for the death of a person, or for
injury to a person or property.” The accident in this case occurred on November 3, 2005, and the
claim was filed on February 1, 2011, which falls well outside the three-year limitations period.
Therefore, in this case, the burden is on plaintiff to demonstrate a question of fact sufficient to
remove the case from operation of the three-year limitations period.

        MCL 600.5827 states in pertinent part that, “except as otherwise expressly provided, the
period of limitations runs from the time the claim accrues. The claim accrues . . . at the time the
wrong upon which the claim is based was done regardless of the time when damage results.”1
However, MCL 600.5851(1) provides that, “if the person first entitled to make an entry or bring
an action under this act is under 18 years of age or insane at the time the claim accrues, the
person or those claiming under the person shall have 1 year after the disability is removed . . .
[to] bring the action although the period of limitations has run.” The statute defines the term
“insane” to mean “a condition of mental derangement such as to prevent the sufferer from
comprehending rights he or she is otherwise bound to know and is not dependent on whether or
not the person has been judicially declared to be insane.” MCL 600.5851(2). Critical to the
instant case is that “[t]o be considered a disability, the infancy or insanity must exist at the time
the claim accrues. If the disability comes into existence after the claim has accrued, a court shall


1
  Plaintiff’s claim is not covered by the exceptions mentioned in MCL 600.5827. Therefore,
plaintiff’s claim “accrue[d] at the time the wrong upon which the claim is based was done,” or
the date of the accident-November 3, 2005. Unless the statute was tolled, the limitations period
ended in November 2008.


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not recognize the disability under this section for the purpose of modifying the period of
limitations.” MCL 600.5851(3). Our Supreme Court has identified a number of factors that
would indicate a person is insane under this statute, which includes an inability to attend to
personal and business affairs and a necessity to explain matters to the claimant that an ordinary
person would understand, including simple legal procedures. Lemmerman, 449 Mich at 71-73.

        In the present case, plaintiff failed to present sufficient evidence to create a factual issue
that he suffered from insanity at the time the claim accrued such as to toll the statute of
limitations. The vast majority of the evidence dates from after the accrual period, which ended
in November 2008, and may very well demonstrate that plaintiff is currently unable to
understand his legal rights. However, the evidence fails to show that he did not understand those
rights at the time the claim accrued. The evidence that is presented relevant to the period the
claim accrued is (1) plaintiff’s own affidavit, which avers that he was depressed, had trouble
working and concentrating following the accident and, during a period following the accrual of
the claim, was institutionalized; (2) the records from plaintiff’s family doctor, which only show
conditions occurring after the accrual period, treatment for unrelated conditions, and that plaintiff
has been treated for depression and for bipolar disorder since the age of 16; and (3) the
Emergency Room Report from after the accident.

        None of the evidence submitted by plaintiff illustrates any controversy with respect to
whether plaintiff was insane at the time his claim accrued. Asher v Exxon Co, USA, 200 Mich
App 635, 641; 504 NW2d 728 (1993). The reports of plaintiff’s family doctor do not create a
factual issue regarding the accrual period because this evidence does not show any condition that
would prevent plaintiff from understanding his legal rights during that time. This evidence
merely shows largely unrelated conditions or continuing mental conditions that do not rise to the
severity of plaintiff not knowing his legal rights. Plaintiff’s own affidavit mentions nothing that
would substantiate that he was unable to understand his legal rights. Further, the emergency
room report from just after the accident does not mention a head injury or that plaintiff
complained of head pain and affirmatively states “no blow to the head.”

        While the condition that caused the insanity does not have to relate to the accident,
plaintiff asserts that that the cause of the insanity was the accident, which both caused a new
mental condition and magnified preexisting conditions. Plaintiff attempts to illustrate that the
condition of “insanity” extends to the period the claim accrued and that he has been continuously
disabled. However, this argument fails in that the evidence showed no head injury after the
accident. Plaintiff has shown nothing to indicate that a head injury occurred and fails to
otherwise connect his current mental condition with the accident in order to track his insanity
backward. Thus, plaintiff fails to create a legitimate factual question that the accident was the
cause of his current condition.

        Plaintiff’s primary causation evidence is the records and affidavits from a psychologist
and a neurosurgeon who contend that the cause of the plaintiff’s current condition was the
accident. However, as indicated by the trial court, both doctors examined plaintiff over five
years after the accident, had no access to the medical records from immediately after the
accident, largely reiterated statements from plaintiff regarding his condition, did not consider any
alternative incidents that could have occurred during this period, and are contradicted by medical
evidence from just after the accident indicating there was no head injury. At most, the substance

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of the evidence shows that plaintiff’s condition may have been caused by a head injury but when
the injury occurred cannot be ascertained. What is problematic for plaintiff is his failure to
submit evidence of his disability at the time of accrual of his claim or connect the accident with
any degree of certainty with his current condition. Plaintiff’s later possible insanity following
the time the claim accrued does not affect the statute of limitations. In order for plaintiff to
successfully invoke the insanity tolling provision, he was required to demonstrate that he was
insane at the time the alleged claim accrued. MCL 600.5851(3). Plaintiff fails to carry this
burden and the trial court thus did not err in granting summary disposition in favor of defendants
Jeffrey Louis Ridley and Ridley-Mitchell Trucking, LLC.

       Affirmed.

                                                            /s/ Deborah A. Servitto
                                                            /s/ Cynthia Diane Stephens
                                                            /s/ Michael J. Kelly




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