City of Marysville v. Pate, Hirn & Bogue, Inc.

• Decision Date: 26 January 1987
• Docket Number: Docket No. 77733
• Citation: 397 N.W.2d 859,154 Mich.App. 655
• Parties: CITY OF MARYSVILLE, Plaintiff-Appellee, v. PATE, HIRN & BOGUE, INC., Defendant-Appellant. 154 Mich.App. 655, 397 N.W.2d 859
• Court: Court of Appeal of Michigan — District of US

Page 859

397 N.W.2d 859

CITY OF MARYSVILLE, Plaintiff-Appellee, v.PATE, HIRN & BOGUE, INC., Defendant-Appellant.

Docket No. 77733.

154 Mich.App. 655, 397 N.W.2d 859

Court of Appeals of Michigan.

Submitted Feb. 13, 1986.

Decided Sept. 15, 1986.

Released for Publication Jan. 14, 1987.

Leave to Appeal Denied Jan. 26, 1987.

[154 MICHAPP 656]Touma, Watson, Nicholson, Whaling, Fletcher &[154 MICHAPP 657]DeGrow, P.C. by David C. Nicholson and Michael L. West, Port Huron, plaintiff-appellee.

Sullivan, Ward & Bone, P.C. by Michelle A. Thomas, Detroit, for defendant-appellant.

Before KELLY, P.J., and WALSH and WAHLS, JJ.

WAHLS, Judge.

As a result of structural defects in its waste treatment facility, plaintiff, the City of Marysville, filed an action against defendant, Pate, Hirn & Bogue, Inc., a firm of professional engineers.Defendant moved for accelerated judgment, asserting that the plaintiff's causes of action were time barred by M.C.L. Sec. 600.5839;M.S.A. Sec. 27A.5839.The trial court denied the motion, ruling that that statute is inapplicable to actions for damages for the defective condition itself and applied the professional malpractice periods of limitation contained in M.C.L. Sec. 600.5805(4);M.S.A. Sec. 27A.5805(4)andM.C.L. Sec. 600.5838;M.S.A. Sec. 27A.5838.Defendant appeals by leave granted on the issues of proper construction of Michigan's architect and professional engineer statute of limitations and the application of the general malpractice statute of limitations when there is a special statute of limitation.We affirm.

The facts are as follows.Pursuant to a contract entered into between plaintiff and defendant, a waste water treatment facility was constructed.In accordance with the plans and specifications prepared by defendant, the facility was completed under defendant's supervision and was accepted and occupied by plaintiff in November, 1973.Defendant's involvement ceased in May, 1975.In 1981, plaintiff became aware of leaking problems.Other problems soon followed.Plaintiff filed suit in 1983.

[154 MICHAPP 658]Defendant first argues that the trial court erred in determining that M.C.L. Sec. 600.5839;M.S.A. Sec. 27A.5839, Michigan's architect and engineer statute of limitation, was not applicable to actions for damages for the defective condition itself, but was rather applicable only to actions for injury to persons or other property arising from the defective condition.M.C.L. Sec. 600.5839;M.S.A. Sec. 27A.5839 reads, in pertinent part, as follows:

"(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."

A statute is not open to construction by the courts unless the language used in the statute is ambiguous or where reasonable minds may differ.Sam v. Balardo, 411 Mich. 405, 418, 308 N.W.2d 142(1981);Lansing v. Lansing Twp., 356 Mich. 641, 649, 97 N.W.2d 804(1959).The statute in question is not clear and unambiguous, because minds could differ as to whether the statute applies to damage claims for deficiencies in the structure itself.The ambiguity results from the Legislature's use of the term "arising out of," which is undefined.Therefore, judicial construction of this provision is proper.

The standards to be applied to the process of judicial construction of statutes were summarized in Cliffs Forest Products Co. v. Al Disdero Lumber [154 MICHAPP 659] Co., 144 Mich.App. 215, 222-223, 375 N.W.2d 397(1985):

"The cardinal rule of statutory construction is to ascertain and effectuate the Legislature's intent.Lansing v Lansing Twp, 356 Mich 641; 97 NW2d 804(1959).Statutory language should be construed reasonably and the purpose of the statute and its objective should be kept in mind.Schoolcraft County Bd of Comm'rs v Schoolcraft Memorial Hospital Bd of Trustees, 68 Mich App 654; 243 NW2d 708(1976), lv den397 Mich 838(1976).A provision should be read in its entirety and in connection with the rest of the statute.Whenever possible the meaning of one section of a statute should be read in harmony with the rest of the statute.Statutes are construed so that their words will have a reasonable meaning.Wyandotte Savings Bank v State Banking Comm'r, 347 Mich 33; 78 NW2d 612(1956)."

The legislative intent in enacting this statute was set forth in O'Brien v. Hazelet & Erdal, 410 Mich. 1, 299 N.W.2d 336(1980), wherein our Supreme Court declared that this statute was constitutional.In O'Brien, supra, p. 14, 299 N.W.2d 336, our Supreme Court stated the following regarding the objective that M.C.L. Sec. 600.5839;M.S.A. Sec. 27A.5839 seeks to achieve:

"The instant legislation was enacted in 1967 in response to then recent developments in the law of torts.The waning of the privity doctrine as a defense against suits by injured third parties and other changes in the law increased the likelihood that persons taking part in the design and construction of improvements to real property might be forced to defend against claims arising out of alleged defects in such improvements, perhaps many years after construction of the improvement was completed.The Legislature chose to limit the [154 MICHAPP 660] liability of architects and engineers in order to relieve them of the potential burden of defending claims brought long after completion of the improvement and thereby limit the impact of recent changes in the law...