GUERRA v. GARRATT

MARKMAN, Judge.

Plaintiff appeals as of right orders granting defendants' motions for summary disposition on the basis of the expiration of the applicable statutes of limitation. We affirm.

Plaintiff was born on November 27, 1961. While attending elementary school in Michigan, she became acquainted with defendant Imber, who was her teacher and basketball coach, and defendant Garratt, who was Imber's housemate. Plaintiff and her family moved to Texas in 1974. In her complaint, she alleges that defendants visited her there and convinced her parents to allow plaintiff to live with them in order to complete her education in Michigan. She alleges that between 1974 and 1976, while she lived with defendants, they engaged in sexual contact with her including "French kissing," fondling of her breasts and genitalia, oral sex, and digital penetration.

Garratt admitted that she had slept in the same bed with plaintiff approximately fifteen times, that she had "French kissed" plaintiff at plaintiff's initiation on one occasion, and that she and plaintiff had touched each other's clothed breasts at plaintiff's initiation on five or six occasions. Imber did not remember sharing a bed with plaintiff, but admitted that it was possible.

Plaintiff filed the present complaint alleging assault and battery and negligent infliction of emotional distress on October 31, 1994, when she was thirty-two years old. She claimed to have no memory of the alleged abuse until November 1993. The period of limitation is two years for an assault and battery claim and three years for a negligent infliction of emotional distress claim. M.C.L. § 600.5805(2) and (8); M.S.A.§ 27A.5805(2) and (8). In the absence of a device to extend the limitation periods, plaintiff's claims here are untimely and therefore barred.

Two devices that can extend a limitation period are the discovery rule and the statutory grace period for persons suffering insanity. Under the discovery rule, a plaintiff's claim accrues when the plaintiff discovers or should have discovered both an injury and the causal connection between the injury and the defendant's breach of duty to the plaintiff. Lemmerman v. Fealk, 449 Mich. 56, 66, 534 N.W.2d 695 (1995). M.C.L. § 600.5851(1); M.S.A. § 27A.5851(1) provides that if a plaintiff suffers from insanity at the time a claim accrues, the plaintiff will have one year after removal of the disability of insanity to file an action regarding the claim.

Defendants moved for summary disposition pursuant to MCR 2.116(C)(7) on the basis of the expiration of the applicable statutes of limitation. In supplemental briefs, defendants argued that plaintiff's allegations of "repressed memory" did not extend the statutes of limitation and that, in any event, plaintiff was aware of the asserted conduct at least as early as 1989 or 1990. Garrett provided an affidavit that stated: "In 1989 or 1990, plaintiff's former roommate, Diane Jones, asked me whether Julia Guerra's allegations, that I had sexually abused her as a child, were true."1 The trial court granted defendants' motions for summary disposition on the basis of the holding of Lemmerman, supra, that neither the discovery rule nor the statutory grace period for persons suffering from insanity extends the limitation period for tort actions delayed by alleged "repressed memory."

The main issue before us is whether plaintiff's allegations of "repressed memory" made summary disposition based on the expiration of the applicable statutes of limitation inappropriate.2 This Court reviews decisions on motions for summary disposition de novo to determine if the moving party was entitled to judgment as a matter of law. Stehlik v. Johnson (On Rehearing), 206 Mich.App. 83, 85, 520 N.W.2d 633 (1994).

In Lemmerman, supra, the Michigan Supreme Court carefully considered the interests underlying statutes of limitation to determine whether the discovery rule or the statutory grace period for persons suffering insanity should apply in tort cases where a plaintiff claimed that "repressed memory" delayed filing a complaint. It concluded at 76-77, 534 N.W.2d 695:

This holding forecloses application of these devices to extend the limitation period for plaintiff's claims here.

However, Lemmerman's holding at 76-77, 534 N.W.2d 695 was immediately followed by footnote 15, which stated:

Plaintiff contends that footnote 15 creates an exception to Lemmerman`s general holding. She argues that the discovery rule and the statutory grace period for persons suffering insanity apply to cases involving "express and unequivocal admissions." She claims that the present case involves such admissions and that the discovery rule and the statutory grace period accordingly apply here, making summary disposition of her complaint inappropriate.3 However, the trial court held: "[W]ithout a doubt this footnote was made with reference to the retroactivity of the ruling...."

Thus, we must determine whether footnote 15 carves out an exception to the general holding of Lemmerman or merely limits its retroactivity. By its terms, the subject of footnote 15 is "cases wherein long-delayed tort actions based on sexual assaults were allowed to survive summary disposition." This sentence indicates that the footnote addresses only the retroactivity of Lemmerman. However, the second sentence of footnote 15 offers a rationale for distinguishing those cases from Lemmerman: that cases involving clear admissions of abuse fall "outside the arena of stale, unverifiable claims."4 Considered alone, this second sentence might reasonably be read to create an exception, with respect to cases involving "express and unequivocal admissions," to the general holding of Lemmerman. However, we do not apply single sentences of opinions out of context. The sentence at issue is part of a footnote. The Lemmerman Court repeatedly sets forth its general holding that neither the discovery rule nor the statutory grace period for persons suffering from insanity extends the limitation period for tort actions delayed by alleged "repressed memory" without suggesting any exception thereto other than legislative action. Lemmerman, at 60, 65, 75, 76-77, 77, 79-80, 534 N.W.2d 695. At 75, 534 N.W.2d 695, the Lemmerman Court specifically states that the existence of corroborative evidence would not change its general holding with respect to "repressed memory" cases:

In this context, if the Court intended to carve out an exception to its general holding, we believe that it would have done so in the text of the opinion, rather than in a footnote. We accordingly conclude that footnote 15 addresses the retroactivity of Lemmerman and does not articulate an exception to its general holding that neither the discovery rule nor the statutory grace period for persons suffering from insanity extends the limitation period for tort actions delayed by alleged "repressed memory." Therefore, the trial court properly granted defendant's motions for summary disposition on the basis of Lemmerman.

Plaintiff also argues that the trial court's application of Lemmerman here violates the Michigan Handicappers' Civil Rights Act (HCRA), M.C.L. § 37.1101 et seq.; M.S.A.§ 3.550(101) et seq., and the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., by foreclosing the pursuit of legal action to a class of people—those suffering "repressed memory." The trial court was obligated, as we are, under principles of stare decisis to follow Lemmerman. Moreover, even if we assume that the HCRA and the ADA apply in the context of a trial court following binding precedent, plaintiff's claims would fail. Plaintiff's alleged handicap is "repressed memory." Memory or awareness of the events giving rise to a cause of action is a prerequisite to pursuing legal action. A party cannot file an action without being aware of some injury. Accordingly, "repressed memory" would not qualify as a "handicap" under the HCRA because it is not "unrelated to the individual's ability to utilize and benefit from a place of public accommodation or public service." M.C.L. § 37.1103(e)(i)(a); M.S.A. § 3.550(103)(e)(i)(a). Nor would it qualify as a "disability" under the ADA because it does not "substantially limit[ ] one or more of the major life activities of such individual." 42 U.S.C. § 12102(2)(A). Therefore, plaintiff's claims under the HCRA and the ADA fail.

For these reasons, we affirm the trial court orders granting defendants' motions for summary disposition.

Affirmed. Defendants being the prevailing parties, they may tax costs pursuant to MCR 7.219.