Yeo v. State Farm Fire and Casualty Ins. Co.

Per Curiam.

Plaintiff appeals as of right from the trial court order that granted summary disposition to defendant on the basis that plaintiffs claim was time-barred. We affirm. This appeal is being decided without oral argument pursuant to MCR 7.214(E).

Plaintiff argues on appeal that her claim was not time-barred because the period of limitation was tolled during the pendency of defendant’s appeal to this Court in an earlier lawsuit. See Yeo v State Farm Ins Co, 219 Mich App 254, 258-259 ; 555 NW2d 893 (1996). We do not find plaintiff’s argument to be persuasive.

Pursuant to the tolling statute, MCL 600.5856; MSA 27A.5856, the period of limitation was tolled during the pendency of plaintiff’s original lawsuit, which was dismissed without prejudice. See Sherrell v Bugaski, 169 Mich App 10, 17 ; 425 NW2d 707 (1988). A dismissal without prejudice is not an adjudication on the merits and, therefore, the tolling statute applies.

Federal Kemper Ins Co v Isaacson, 145 Mich App 179, 183 ; 377 NW2d 379 (1985). While we generally agree with plaintiff that tolling may extend during appellate proceedings, see Darin v Haven, 175 Mich App 144, 151-152 ; 437 NW2d 349 (1989), the period of limitation in this case was not tolled during the earlier appeal to this Court because the narrow issue raised in that appeal was whether the dismissal of plaintiff’s claim on the basis of her failure to comply with a condition precedent to filing a lawsuit should have been with prejudice. Nothing prevented plaintiff from thereafter *485 submitting to the requisite examination under oath, which she did, nor was defendant prevented from subsequently denying plaintiffs claim, which it did. Contrary to plaintiff’s argument, MCR 7.208(A) did not deprive the trial court of jurisdiction to entertain this lawsuit while the appeal of the earlier lawsuit was pending in this Court. Rule 7.208(A) only prohibits the court from which an appeal is taken from setting aside or amending the specific judgment or order appealed from. Accordingly, because plaintiff did not file the present lawsuit for nearly two years after defendant formally denied her claim, her lawsuit was time-barred. Summary disposition was properly granted.

Affirmed.