The Court of Appeals convened a conflict panel in Furr v McLoed to resolve a conflict between its previous opinion in that case and its opinion in Tyra v Organ Procurement Agency of Michigan, 302 Mich App 208; 840 NW2d 730 (2013).  The two opinions had reached opposite conclusions regarding whether a plaintiff can amend his complaint to render it complaint with the mandatory notice waiting period for medical malpractice action.  The conflict panel held that a plaintiff can amend.
 
In so holding, the court stated that the Michigan Supreme Court’s decision in Driver v Naini, 490 Mich 239; 802 NW2d 311 (2011) did not overrule the Court of Appeals decision in Zwiers v Growney, 286 Mich App 38; 778 NW2d 81 (2009).  Zwiers had allowed a trial court to apply MCL 600.2301, the statute allowing amendment, to prevent dismissal for failing to comply with the mandatory notice waiting period.  Subsequently, in Driver, the Supreme Court  held that a plaintiff may not amend a notice of intent (“NOI”) “to add nonparty defendants so that the amended NOI relates back to the original filing for purposes of tolling the statute of limitations[.]” 
 
The Court of Appeals set forth several reasons why Driver did not overrule Zwiers.  First, Driver did not expressly mention or overrule Zwiers.  Driver, the court explained, involved the attempt to amend an NOI to add a third party whereas Zwiers and the instant case involved the attempt to correct a prematurely filed complaint.  According to the Driver court, MCL 600.2301 only applies to actions or proceedings that are pending; when a plaintiff attempts to amend a NOI to add a third party where the claim is already time-barred, there is no action or proceeding pending.   In contrast, in Zwiers or the instant case, after the plaintiff filed the NOI a “proceeding” was pending, and thus MCL 600.2301 would apply.  Additionally, unlike in Driver, the court reasoned, the defendants’ rights would not be substantially affected.  That is, in Driver the defendant would lose its statute-of-limitations defense, whereas here where the defendants had already received notice their rights and the purposes of MCL 600.2912b (e.g., reducing costs, promoting settlements, etc.) were protected.  Further, the Driver court was concerned with plaintiffs “endlessly adding defendants,” depriving those defendants of any notice whatsoever, which would not happen under the current circumstances.  Finally, the plain language of MCL 600.2301 and case law indicates that a plaintiff should be allowed to amend his or her complaint as long as it did not substantially affect the defendant’s rights.
 
Therefore, because Driver did not overrule Zwiers, the trial court correctly determined that the plaintiffs could rely on MCL 600.2301 to correct their prematurely-filed complaint.  Accordingly, the trial court’s denial of the defendants’ motion for summary disposition was proper. 
 
Judges Meter, O’Connell, and Talbot dissented.