In this medical malpractice case involving an arbitration agreement, plaintiffs claim that the trial court erred in granting summary disposition in favor of defendant. We affirm in part, reverse in part, and remand.
Plaintiff Raymond Haywood
In response to plaintiff's complaint in this matter, defendant moved for summary disposition pursuant to MCR 2.116(C)(4), (7), arguing that the trial court lacked subject-matter jurisdiction over the matter because the parties had agreed to arbitration, or, in the alternative, that the claim was barred by plaintiff's execution of an arbitration agreement. The trial court granted summary disposition without specifying under which subrule. Plaintiffs appeal.
We note that MCR 2.116(C)(4) does not provide a proper basis for summary disposition in a medical malpractice controversy governed by an arbitration agreement, Campbell v St John Hosp, 434 Mich. 608, 613-615; 455 N.W.2d 695 (1990), and thus we will treat these claims as having been brought under MCR 2.116(C)(7). When reviewing a motion brought under this subrule, we must consider all affidavits, pleadings, and other documentary evidence filed or submitted by the parties. MCR
Plaintiff claims that the trial court erred in granting summary disposition because a specified sentence in the arbitration agreement was not in 12-point type, as required by statute, and thus the agreement was invalid.
MCL 600.5042(4); MSA 27A.5042(4) of the Malpractice Arbitration Act (MAA), MCL 600.5040 et seq.; MSA 27A.5040 et seq., provides:
Plaintiff submitted an affidavit from an alleged printing expert who measured the type of the specified sentence in the arbitration agreement in this case and determined that it was only in 9-point type. The difference is approximately 1/24 of an inch.
An arbitration agreement under the MAA cannot be legally valid or binding unless it is in strict compliance with the arbitration statute. McKain v Moore, 172 Mich.App. 243, 248; 431 N.W.2d 470 (1988); Brintley v Hutzel Hosp, 181 Mich.App. 566, 568; 450 N.W.2d 79 (1989). Thus, we must determine how the term "strict compliance" should be interpreted. When interpreting the analogous term of "strict construction" of a statute, the Supreme Court has stated that it does not mean a strained
We find that the term "strict compliance," when used in the context of strict compliance with a statute, should be similarly interpreted.
We believe that the intent of the Legislature in requiring the statement in question to be in boldface type and larger letters was to assure that persons reading the agreement would notice the important message it contained. A review of the arbitration agreement in this case shows that this statement is much larger than the other type on the page, is in boldface type, and is in all capital letters. It is very noticeable. Thus, we find that the instant arbitration agreement fulfills the legislative purpose behind the statutory requirement, and is thus in strict compliance with the statute. If we were to find otherwise and carry absolute strict compliance to its extreme, a type much larger than 12-point type would not "strictly" comply with the statute, even though it would, presumably,
Defendant has met his burden of proof of showing that he strictly complied with the MAA with regard to this issue. Brintley, supra. Consequently, summary disposition of plaintiff's claim of malpractice covered by this agreement was properly granted. MCR 2.116(C)(7).
Plaintiff also claims that the trial court erred in granting summary disposition of his claim that malpractice continued or occurred during his hospitalization which began on September 22, 1985, because the arbitration agreement signed for the hospitalization which began on September 15, did not cover the second hospitalization. We agree.
MCL 600.5042(6); MSA 27A.5042(6) provides:
The first paragraph of the arbitration agreement in the present case contains the following language:
Where the language of a contract is clear and unambiguous, the intent of the parties will be ascertained according to its plain sense and meaning. McKain, supra. Here, the agreement, particularly
Accordingly, we find that summary disposition of any claim plaintiff may have regarding malpractice during his second hospitalization was improper.
Affirmed in part, reversed in part, and remanded for further proceedings. We do not retain jurisdiction.