O'Brien v. Hazelet & Erdal, Consulting Engineers

• Decision Date: 18 July 1978
• Docket Number: Docket No. 77-2823
• Citation: 270 N.W.2d 690,84 Mich.App. 764
• Parties: James O'BRIEN and Peggy O'Brien, Plaintiffs-Appellees, v. HAZELET & ERDAL, CONSULTING ENGINEERS, Defendant-Appellant. 84 Mich.App. 764, 270 N.W.2d 690
• Court: Court of Appeal of Michigan — District of US

Page 690

270 N.W.2d 690

James O'BRIEN and Peggy O'Brien, Plaintiffs-Appellees, v. HAZELET & ERDAL, CONSULTING ENGINEERS, Defendant-Appellant.

Docket No. 77-2823.

84 Mich.App. 764, 270 N.W.2d 690

Court of Appeals of Michigan.

July 18, 1978.

Released for Publication Oct. 20, 1978.

[84 MICHAPP 764] Plunkett, Cooney, Rutt, Watters, Stanscyk & Pedersen by William D. Booth and Christine D. Oldani, Detroit, for defendant-appellant.

[84 MICHAPP 765] Bruce M. Bieneman by Kenneth L. Block, Grand Rapids, for plaintiffs-appellees.

Before R. B. BURNS, P. J., and J. H. GILLIS and RILEY, JJ.

PER CURIAM.

The present case involves the application of Michigan's statute limiting actions against licensed architects and professional engineers arising out of work done on improvements to real property. M.C.L. § 600.5839(1); M.S.A. § 27A.5839(1). ¹

In 1954, defendant, an engineering firm, contracted with the Michigan State Highway Department to serve as consulting engineer for construction of US-131 in the city of Grand Rapids. Apparently, construction work was completed on the highway sometime in 1961.

On June 28, 1975, plaintiff James O'Brien was injured when a truck he was driving tipped over on an "s-curve" on US-131. Plaintiffs filed suit on December 1, 1976, alleging that defendant had negligently designed the "s-curve", thereby proximately causing the accident.

Defendant brought a motion for accelerated judgment, GCR 1963, 116.1(5), claiming that the suit was barred since it was not brought within six [84 MICHAPP 766] years after defendant completed its work on the highway construction project. M.C.L. § 600.5839(1); M.S.A. § 27A.5839(1). The trial court denied the motion, ruling that the statute was unconstitutional because it barred the suit prior to the date of the injury. Defendant appeals the denial of the motion.

This Court has recently held that this statute does not violate due process by unreasonably restricting the right to sue. Muzar v. Metro Town Houses, Inc., 82 Mich.App. 368, 266 N.W.2d 850 (1978), Bouser v. Lincoln Park, 83 Mich.App. 167, 268 N.W.2d 332 (1978). The Legislature may abrogate a common-law right of action before it vests. Grubaugh v. City of St. Johns,384 Mich. 165, 180 N.W.2d 778 (1970), Snow v. Freeman, 55 Mich.App. 84, 222 N.W.2d 43 (1974). The present statute is better termed a statute of abrogation rather than a statute of limitations. See Dyke v. Richard, 390 Mich. 739, 745-747, 213 N.W.2d 185 (1973).

The remaining issues raised were not presented to the trial court below and thus are beyond the scope of this Court's review. Oakland County v. Detroit, 81 Mich.App. 308, 265 N.W.2d 130 (1978), Three Lakes Ass'n v. Whiting, 75 Mich.App. 564, 255 N.W.2d 686 (1977). However, we will note that even had we been required to reach the merits of these issues, our decision would remain unchanged. ²

Reversed and remanded for entry of an order granting accelerated judgment in favor of defendant. Costs to defendant.

1 "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 such improvement more than 6 years after the time of occupancy of the completed improvement, use or acceptance of such improvement. This limitation shall not apply to actions against any person in actual possession and control as owner, tenant or otherwise, of the improvement at the time the...