MSC Holds Wrongful-Death Saving Provision Creates a Limitation Period Subject to Tolling
MSC Opinion Published: July 27, 2026
MSC Docket No. 168462
Cavanagh, C.J., Zahra, Bernstein, Welch, Bolden, Thomas, and Hood, JJ. (Opinion by Bernstein, J.; Zahra and Thomas, JJ., dissenting)
Genesee Circuit Court
Holding: MCL 600.5852, the wrongful-death saving provision that gives a personal representative extra time to file suit after the general period of limitations has run, itself creates a limitations period and is therefore subject to the tolling mechanism of MCL 600.5856(c) during the 182-day medical-malpractice notice period. The Supreme Court overruled Waltz v Wyse, 469 Mich 642 (2004), which had held otherwise, concluding both that Waltz was wrongly decided and that stare decisis did not justify retaining it. The Court reversed the Court of Appeals and remanded for further proceedings.
Facts: Maurice Ernest died the day after presenting to the emergency department with chest pain. Plaintiff, his estate's personal representative, received letters of authority on June 7, 2021. The general two-year malpractice limitations period expired July 16, 2022. Plaintiff sent defendants a notice of intent to sue (NOI) on February 10, 2023, and filed her complaint on August 14, 2023.
Plaintiff argued the complaint was timely under the wrongful-death saving provision, MCL 600.5852, which alone would have expired June 7, 2023, but that mailing the NOI tolled the remaining time under MCL 600.5856(c). Defendants argued that Waltz v Wyse foreclosed tolling of MCL 600.5852 and that the complaint was therefore untimely. The trial court agreed with defendants and dismissed with prejudice; the Court of Appeals affirmed as bound by Waltz. The Supreme Court granted oral argument on the application to consider whether Waltz was correctly decided and, if not, whether stare decisis required its retention.
Key Appellate Holding:
MCL 600.5852 itself creates a limitations period and is therefore subject to the tolling provision of MCL 600.5856(c); Waltz v Wyse is overruled.
Writing for the majority, Justice Bernstein explained that MCL 600.5852 “saves” a wrongful-death action by extending the period in which suit may be filed, and that in doing so it necessarily creates a new limitations period of its own — one that falls within the tolling mechanism of MCL 600.5856(c). Waltz had relied on Miller v Mercy Mem Hosp, 466 Mich 196 (2002), to characterize MCL 600.5852 as “a saving statute, not a statute of limitations,” while dismissing this Court's earlier characterization in Omelenchuk v City of Warren, 461 Mich 567 (2000), of the same provision as creating a “recalculated limitation period.” The majority found Waltz's reasoning unsupported by the statutory text or legislative history and concluded that nothing in MCL 600.5852 or MCL 600.5856 signaled that the Legislature intended to withhold NOI tolling from personal representatives.
On stare decisis, the majority applied the Robinson v Detroit, 462 Mich 439 (2000) factors and concluded that Waltz was practically unworkable because it deviated from the statute's plain meaning, that reliance interests were minimal because only a narrow class of litigants was affected and defendants could not show they had altered their behavior in reliance on the decision, and that Waltz itself represented an abrupt, cursory departure from prior characterizations of MCL 600.5852. Although the law and facts had not changed since Waltz was decided, the majority held the other factors sufficient to overrule it.
Justice Zahra dissented, arguing that MCL 600.5852's own text — permitting suit “although the period of limitations has run” — shows it cannot itself be a period of limitations, and that the majority's stare decisis analysis was result-driven. Justice Thomas, joined by Justice Zahra, dissented separately, agreeing that Waltz was likely wrongly decided but concluding that the majority failed to identify a compelling, affirmative justification for overruling more than two decades of settled precedent beyond mere disagreement with its holding.
