Beauregard-Bezou v. Pierce
| Decision Date | 19 May 1992 |
| Docket Number | BEAUREGARD-BEZO,Docket No. 124884,P |
| Citation | 487 N.W.2d 792,194 Mich.App. 388 |
| Parties | Alexandralaintiff-Appellee, v. Melvin C. PIERCE, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
McCroskey, Feldman, Cochrane & Brock by Robert O. Chessman, Muskegon, for plaintiff-appellee.
Smith, Haughey, Rice & Roegge by Marilyn S. Nickell, Grand Rapids, for defendant-appellant.
Before JANSEN, P.J., and NEFF and CONNOR, JJ.
In this negligence action, defendant appeals by leave granted from an order of the circuit court denying his motion for summary disposition. We reverse.
Defendant's motion for summary disposition is based on the six-year statute of limitations for actions against architects, professional engineers, or contractors arising from improvements to real property, M.C.L. Sec. 600.5839; M.S.A. Sec. 27A.5839. Defendant, a residential building contractor, undertook to construct a home for plaintiff and her husband, Marion, in a written contract dated October 16, 1978. Plaintiff occupied the home on September 20, 1979, and has used the home since then as her place of residence.
Initial occupancy of the home occurred before construction was completed and plaintiff complained to defendant, to the Department of Licensing & Regulation, and to the local building inspector--who withheld issuance of a certificate of occupancy until after June 23, 1982--regarding uncompleted construction work on the home, including complaints concerning the manner in which defendant constructed a certain staircase. The staircase was to be enclosed by walls, with the handrail running along the length of the staircase. Instead, defendant constructed the staircase so that the last several steps were open, and there was no handrail support for those steps.
On September 6, 1986, plaintiff, while descending the staircase at the point where the railing ends, fell and fractured her hip. Suit was commenced on June 10, 1987.
Defendant thereafter moved for summary disposition on the grounds that the applicable period of limitation had expired and that defendant's conduct was not a proximate cause of plaintiff's injuries. The trial court denied the motion.
In reviewing summary disposition motions under MCR 2.116(C)(7), this Court must accept all the plaintiff's well-pleaded allegations as true and construe them most favorably to the plaintiff. Wildfong v. Fireman's Fund Ins. Co., 181 Mich.App. 110, 113, 448 N.W.2d 722 (1989). If no question of fact exists, the issue whether the claim is statutorily barred is one of law for the court. Id.
Defendant argues that plaintiff's claim is barred because the six-year period of limitation has expired. We agree.
M.C.L. Sec. 600.5839(1); M.S.A. Sec. 27A.5839(1) provides:
No person may maintain any action to recover damages for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained as a result of such injury, against any state licensed architect or professional engineer performing or furnishing the design or supervision of construction of the improvement, or against any contractor making the improvement, more than 6 years after the time of occupancy of the completed improvement, use, or acceptance of the improvement, or 1 year after the defect is discovered or should have been discovered, provided that the defect constitutes the proximate cause of the injury or damage for which the action is brought and is the result of gross negligence on the part of the contractor or licensed architect or professional engineer. However, no such action shall be maintained more than 10 years after the time of occupancy of the completed improvement, use, or acceptance of the improvement.
The statute reflects amendments by 1985 P.A. 188, effective March 31, 1986. Before these amendments, the six-year statute of limitations applied only to claims made against architects and professional engineers, and the statute contained no "discovery" statute of limitations. The amendments made claims against contractors subject to a six-year statute of limitations for allegations of ordinary negligence and provided a one-year "discovery " statute of limitations where gross negligence is pleaded.
The amendments were in effect at the time plaintiff's injuries occurred on September 6, 1986. The one-year "discovery" statute of limitations however, is inapplicable in this case because plaintiff knew of the alleged defective handrail for more than one year before commencing suit, and she did not allege gross negligence. Thus, the focus is whether plaintiff's claim was filed within six years of the time she occupied, used, or accepted the improvement.
The trial court interpreted the statute to mean that the six-year period of limitation begins to run at the time of occupancy, use, or acceptance of the improvement, whichever is later.
Plaintiff admits she occupied and used the home for more than six years before she fell, but claims that she did not accept the improvement. She further argues that the statute should be read as interpreted by the trial court.
Defendant contends that the trial court's interpretation of the statute is erroneous. Defendant claims that, because the statute uses the disjunctive "or" in delineating the factors that trigger the running of the period of limitation, only one of the criteria needs to be met.
In Fennell v. John J. Nesbitt, Inc., 154 Mich.App. 644, 649, 398 N.W.2d 481 (1986), a case that dealt with a pre-1986 amendment of the statute, a panel of this Court stated:
We do not read MCL 600.5839; MSA 27A.5839 as a "discovery" statute of limitations. Rather, we find that its operation is predicated upon the time of occupancy or use or acceptance of the improvement. [Emphasis added.]
Although the focus in Fennell was whether the statute at issue was a "discovery" statute of limitations and is different from the issue of statutory interpretation in this case, we find this Court's language cited...
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