ALERT | Court of Appeals Calls for Special Panel To Resolve COVID Tolling Decisions

By: Jonathan B. Koch, Tyler Anderson

Recently, Smith Haughey appellate attorneys Jonathan Koch and Tyler Anderson secured an opinion for a hospital client that re-opened the door to raising a constitutional challenge to the practice commonly referred to as “COVID Tolling.”

Personal-injury plaintiffs are generally required to file suit within a certain period of time after their claims arise by statutory rules created by the Legislature. These rules, known as statutes of limitations or repose, create hard deadlines for plaintiffs that can only be tolled by the Legislature, not the courts. However, in March 2020, the Michigan Supreme Court issued a series of Administrative Orders (commonly referred to as the COVID-tolling orders) that “extend[ed] all deadlines pertaining to case initiation and the filing of initial responsive pleadings in civil and probate matters during the state of emergency” declared by Governor Whitmer as a result of the COVID-19 pandemic. The Supreme Court rescinded those orders in June 2020.

Since then, issues related to the scope and validity of the Administrative Orders have percolated through Michigan’s judiciary. Plaintiff attorneys have argued that the Supreme Court’s Administrative Orders operate to toll all deadlines for plaintiffs to file their lawsuits (including all statutes of limitation and repose) by 102 days, regardless of whether the deadline expired during the state of emergency. In contrast, defendants have raised various arguments why those orders don’t apply to save a plaintiff’s claim.

Previous Court Decisions on COVID Tolling

Some of the defendants’ arguments have been met with success. For example, in Wenkel v Farm Bureau Gen Ins Co of Mich (Docket No. 358526), the Michigan Court of Appeals held that the Administrative Orders didn’t toll the one-year back rule in no-fault suits. Similarly, in Armijo v Bronson Methodist Hosp (Docket Nos. 358728, 358729), the Court of Appeals held that the Administrative Orders didn’t toll the 182-day Notice of Intent period in a medical-malpractice action.

Other defense arguments have been met with less success. Most significantly, in Carter v Trinity Health-Michigan (Docket No. 358487), the Court of Appeals rejected the defendant’s argument that the Supreme Court lacked constitutional authority to issue the Administrative Orders because they did not address a matter of practice and procedure, but instead effectively rewrote substantive rules of law created by the Legislature (i.e., statutes of limitation and repose).

Because the Carter opinion was published, it is binding on lower courts and all future panels of the Court of Appeals unless it’s reversed by the Supreme Court or a special panel of the Court of Appeals (known as a conflict panel). 

Court of Appeals Calls for Conflict Panel to Reevaluate COVID Tolling Decision

Today, however, in a published opinion in Compagner v Burch et al (Docket No. 359699), the Court of Appeals called for the creation of a conflict panel to reevaluate whether Carter was correctly decided. In Compagner, a majority of the Court of Appeals affirmed the trial court’s denial of summary disposition for defendants, but only because it was compelled to do so by Carter. The majority explained that it “disagree[d] with Carter’s determination that the Michigan Supreme Court had the constitutional authority to issue [the] Administrative Order[s]” and, thus, “call[ed] for the convening of a special panel under MCR 7.215(J)(3) to consider the conflict between our rationale and that of Carter relative to the constitutional validity of AO 2020-3.”

By calling for a conflict panel, the majority opinion in Compagner cracks open the door that Carter slammed shut. Now, under MCR 7.215(J), the judges on the Court of Appeals will be polled to determine whether a special conflict panel of seven judges should be convened to rehear the case and resolve the conflict between Carter and Compagner. If the judges agree that a panel should be convened, the parties are entitled to a round of supplemental briefing and oral argument. Interested parties may also have the opportunity to be heard as amicus curiae.

If you have any questions regarding the scope or constitutionality of the Supreme Court’s Administrative Orders, please contact Smith Haughey attorneys Jonathan Koch or Tyler Anderson.