City of Midland v. Helger Const. Co., Inc.

• Decision Date: 16 April 1987
• Docket Number: Docket No. 83931
• Parties: The CITY OF MIDLAND, a municipality, Plaintiff-Appellant, v. HELGER CONSTRUCTION COMPANY, INC., and Hartford Accident & Indemnity Company (non-participants), Defendants, and Dow-Howell-Gilmore Associates, Inc., Alden B. Dow Associates, H.C. Allison, James J. Howell, Richard J. Knopf and Alden B. Dow, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 218

403 N.W.2d 218

157 Mich.App. 736

The CITY OF MIDLAND, a municipality, Plaintiff-Appellant, v. HELGER CONSTRUCTION COMPANY, INC., and Hartford Accident &amp Indemnity Company (non-participants), Defendants and Dow-Howell-Gilmore Associates, Inc., Alden B. Dow Associates, H.C. Allison, James J. Howell, Richard J. Knopf and Alden B. Dow, Defendants-Appellees.

Docket No. 83931.

Court of Appeals of Michigan.

Submitted May 6, 1986.

Decided Feb. 17, 1987.

Released for Publication April 16, 1987.

Federlein & Grylls, P.C. by Walter J. Federlein, Royal Oak, for plaintiff-appellant.

Sullivan, Ward & Bone, P.C. by Michelle A. Thomas, Detroit, for defendants.

Before BRONSON, P.J., and GRIBBS and CLEMENTS, ^* JJ.

GRIBBS, Judge.

Plaintiff, the City of Midland (City), and Alden B. Dow Associates, Inc. (Dow), entered into an agreement on August 13, 1973, pursuant to which Dow was to provide professional services related to the design and construction of an ice arena in Midland. On June 28, 1974, the parties entered into a contract which provided for the design and supervision of Phase II, a pool facility, including a roofing system. The City entered into a construction contract with Helger Construction Company, Inc, for construction of the facilities. On July 15, 1976, the City accepted the construction work and a certificate of substantial completion was executed. On September 25, 1980, the owners found the roof to be defective, and on July 2, 1982, the City filed suit against Helger Construction Company, Inc., its insurer, Hartford Accident & Indemnity Company, Alden B. Dow Associates, Inc., its successor, Dow-Howell-Gilmore Associates, Inc, and architects Alden B. Dow, H.C. Allison, James H. Howell, and Richard J. Knopf (Dow and the architect defendants will be referred to hereinafter as defendants).

On December 2, 1982, the Midland Circuit Court granted accelerated judgment to defendants, and an order to that effect was entered on February 15, 1983. On February 15, 1983, defendants' motion for partial summary judgment was denied.

Plaintiff filed a first amended complaint, and on July 18, 1983, the circuit court granted defendants' motion to strike the amended complaint. A final order and judgment striking plaintiff's first amended complaint was entered on March 8, 1985. The court also granted defendants' motion for summary judgment as to plaintiff's express and implied warranty claims set out in Count III of plaintiff's complaint. On March 13, 1985, plaintiff's motion for leave to amend its complaint was denied.

On appeal, plaintiff raises three issues. First, it argues that the circuit court erred in holding that the City's architectural malpractice claim was barred by the two-year statute of limitations set forth in M.C.L. Sec. 600.5838, M.S.A. Sec. 27A.5838, because that provision applies only to state licensed health professionals, and not to architects. We disagree.

M.C.L. Sec. 600.5839(1); M.S.A. Sec. 27A.5839(1), the architect's and engineer's statute, provided as follows when plaintiff's cause of action accrued 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 defective and unsafe condition of such improvement constitutes the proximate cause of the injury or damage for which the action is brought."

M.C.L. Sec. 600.5838; M.S.A. Sec. 27A.5838, the general malpractice statute, provided:

"(1) A claim based on the malpractice of a person who is, or holds himself out to be, a member of a state licensed profession, intern, resident, registered nurse, licensed practical nurse, registered physical therapist, clinical laboratory technologist, inhalation therapist, certified registered nurse anesthetist, X-ray technician, hospital, licensed health care facility, employee or agent of a hospital or licensed health care facility who is engaging in or otherwise assisting in medical care and treatment, or any other state licensed health professional, accrues at the time that person discontinues treating or otherwise serving the plaintiff in a professional or pseudoprofessional capacity as to the matters out of which the claim for malpractice arose, regardless of the time the plaintiff discovers or otherwise has knowledge of the claim.

"(2) An action involving a claim based on malpractice may be commenced at any time within the applicable period prescribed in sections 5805 or 5851 to 5856, or within 6 months after the plaintiff discovers or should have discovered the existence of the claim, whichever is later. The burden of proving that the plaintiff, as a result of physical discomfort, appearance, condition or otherwise, neither discovered nor should have discovered the existence of the claim at least 6 months before the expiration of the period otherwise applicable to the claim shall be on the plaintiff. A malpractice action which is not commenced within the time prescribed by this subsection is barred."

In this case, we must determine which of the above is the proper statute of limitations to apply to the City's claim against defendant. First, we note that the general malpractice statute applies to architects as well as to health care professionals. See Sam v. Balardo, 411 Mich. 405, 425-427, 308 N.W.2d 142 (1981); Chapel v. Clark, 117 Mich. 638, 640, 76 N.W. 62 (1898). Thus, plaintiff's contention that it applies only to health care professionals must be rejected.

In City of Marysville v. Pate, Hirn & Bogue, Inc, 154 Mich.App. 655, 397 N.W.2d 859 (1986), a panel of this Court faced a similar question. In that case, the panel, relying on the "arising out of" language in the architect's and engineer's statute, concluded that, where a suit is for deficiencies in an improvement itself, the architect's and engineer's statute does not apply. That statute was enacted to limit engineers' and architects' exposure to litigation by injured third parties, and not to limit their liability for malpractice, Marysville, at p. 660, 397 N.W.2d 859; O'Brien v. Hazelet & Erdal, 410 Mich. 1, 14; 299 N.W.2d 336 (1980). Thus, the architect's and engineer's statute applies to claims of injured third parties, but not to claims against architects or engineers for professional malpractice. The general malpractice statute applies to claims like the one presented in this case, Marysville, 154 Mich.App. at p. 661, 397 N.W.2d 859. Thus, the circuit court's conclusion that plaintiff's claim was barred by the general malpractice statute of limitations was correct.

Next, the City argues that the circuit court abused its discretion and engaged in fact-finding by granting accelerated judgment, striking plaintiff's first amended complaint, and dismissing plaintiff's warranty claim by summary judgment. Three separate issues are raised by this argument.

First, plaintiff asserts that the circuit court erred when it assumed that the last service rendered within the meaning of the general malpractice statute occurred on July 15, 1976, and that the City discovered the alleged defect on September 25, 1980. Plaintiff's complaint contained the following allegations:

"16. That on July 15, 1976, Plaintiff accepted the construction work as being substantially complete and assumed possession thereof, as stated in the Certificate of Substantial Completion. A copy of said Certificate is attached hereto, marked Exhibit A, and made a part hereof.

"17. That on or about September 25, 1980, the roofing system was found to be defective, both in the design and installation, so that under ordinary use it has continued to deteriorate to a point where water must be collected inside the arena in receptacles and temporary drain...