Legal Malpractice and the Statute of Repose – Clarification That the New Statute Applies Retroactively
In January 2013, the Michigan Legislature enacted a six year statute of repose for all claims of legal malpractice. MCL 600.5838b. A statute of repose works together with a statute of limitations to operate as an ultimate time limitation on when a claim may be brought. In legal malpractice actions, the statute of limitations is two years from the date the attorney discontinues serving the plaintiff in a professional capacity. MCL 600.5805(1) and (6) and 600.5838(1). The statute of limitations may be extended beyond two years from the date of discontinuing service, where the plaintiff shows that he or she brought the claim within six months after the plaintiff discovered or should have discovered the existence of the claim. MCL 600.5838(2). The statute of repose works to put an ultimate six-year cap on claims for legal malpractice by requiring that all claims be brought within six years of the date that the act or omission that is the basis for the claim of legal malpractice occurred. MCL 600.5838b. The statute of repose acts as a bar to claims filed more than six years after the act or omission occurred, regardless of when the claim was discovered.
In a recent published opinion, the Court of Appeals addressed the question of whether this six-year statute of repose applied retroactively. Nortley v Hurst, decided October 10, 2017 (Docket No. 333240). In Nortley, the attorney ceased representing the plaintiff on July 3, 2009. Under ordinary limitation principles, any legal malpractice claim should have been filed on or before July 3, 2011. However, the plaintiff alleged she did not discover the alleged malpractice until late-2015 and filed her claim on January 15, 2016, within six months of discovering her claim. All parties agreed that the plaintiff filed her claim beyond the six year statute of repose.
The question the Court of Appeals addressed was whether the statute of repose, which: (1) was not enacted at the time the plaintiff’s cause of action accrued; and (2) did not state anything about retroactive application, applied retroactively to bar the plaintiff’s claim. The Court of Appeals held that the statute of repose has retroactive application. The court reasoned that, although the statute of repose was silent on its retroactive application, retroactive application was appropriate because the statute was procedural in nature and did not deny any vested right to plaintiff. Thus, the Court of Appeals clarified that the six-year statute of repose is absolute and any claim for legal malpractice must be filed within six years after the act or omission that is the basis of the legal malpractice claim or the claim is barred.