Filcek v. Utica Bldg. Co.

• Decision Date: 20 March 1984
• Docket Number: Docket No. 58064
• Citation: 345 N.W.2d 707,131 Mich.App. 396
• Parties: Rodney FILCEK and Patrice Filcek, Plaintiffs-Appellants, v. UTICA BUILDING COMPANY, a Michigan corporation, Defendant-Appellee. 131 Mich.App. 396, 345 N.W.2d 707
• Court: Court of Appeal of Michigan — District of US

Page 707

345 N.W.2d 707

Rodney FILCEK and Patrice Filcek, Plaintiffs-Appellants, v. UTICA BUILDING COMPANY, a Michigan corporation Defendant-Appellee.

Docket No. 58064.

131 Mich.App. 396, 345 N.W.2d 707

Court of Appeals of Michigan.

Submitted June 8, 1982.

Decided Jan. 3, 1984.

Rehearing Denied March 1, 1984.

Released for Publication March 20, 1984.

[131 MICHAPP 397] Roesch, Schaberg & Baker by Basil A. Baker, Saline, for plaintiffs-appellants.

Terry J. Nosan, Southfield, for defendant-appellee.

Before KELLY, P.J., and CAVANAGH and JOSLYN ^*, JJ.

PER CURIAM.

In 1966, defendant constructed a house. Plaintiffs became remote purchasers of that house in July 1977, i.e., there were at least two previous owners. Shortly after their purchase, [131 MICHAPP 398] plaintiffs discovered defects in the house which they attributed to defendant. On March 20, 1979, plaintiffs filed a two-count complaint against defendant in district court, alleging negligent construction (Count I) and breach of an implied warranty of habitability (Count II). On defendant's motions, the trial court granted accelerated judgment based on expiration of the applicable statute of limitations, pursuant to GCR 1963, 116.1(5), on Count I and summary judgment, pursuant to GCR 1963, 117.2(1), on Count II. Plaintiffs took an appeal as of right to the circuit court, challenging only the entry of accelerated judgment as to Count I. The circuit court affirmed and this Court granted leave to appeal.

The trial court erred by granting accelerated judgment in favor of defendant. Plaintiffs' tort claim for negligent construction is a viable one. The statute involved in this case, M.C.L. Sec. 600.5827; M.S.A. Sec. 27A.5827, was enacted as part of the Revised Judicature Act. 1961 P.A. 236.

"Sec. 5827. Except as otherwise expressly provided, the period of limitations runs from the time the claim accrues. The claim accrues at the time provided in sections 5829 to 5838, and in cases not covered by these sections the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results."

At first glance, it appears that, pursuant to the foregoing statute, the wrong occurred when the house was built in 1966 and that the damage did not result, at the earliest, until plaintiffs purchased the house in 1977. Thus, it would seem that plaintiffs' claim is time-barred.

However, the Supreme Court has interpreted Sec. 5827 as stating that a claim does not accrue until [131 MICHAPP 399] one is injured, not when the wrong is committed. Connelly v. Paul Ruddy's Equipment Repair & Service Co., 388 Mich. 146, 150, 200 N.W.2d 70 (1972). Also, Williams v. Polgar, 391 Mich. 6, 23-25, 215 N.W.2d 149 (1974). In other words, the limitation period does not begin to run until all of the elements of the cause of action have occurred and can be alleged in a proper complaint. Where an element of the cause of action, such as damages, has occurred but cannot be pled in a proper complaint because it is not, with reasonable diligence, discoverable until sometime after it has occurred, both this Court and the Supreme Court have applied a discovery rule of accrual. Thus, in Williams, the Supreme Court concluded that the plaintiff's claim did not accrue until plaintiff knew or should have known of the defendant's negligent misrepresentation. This Court has similarly ruled in Bonney v. The Upjohn Co., 129 Mich.App. 18, 342 N.W.2d 551 (1983), that the plaintiffs' products liability claim for personal injuries against a drug company did not accrue until plaintiffs discovered or should have discovered that they had a cause of action. The discovery rule of accrual has also been applied in cases involving property damage as opposed to personal injury, where it has been held that the element of damage does not occur until the damage was either discovered or should have been discovered through the exercise of reasonable diligence. Southgate Community School Dist. v. West Side Construction Co., 399 Mich. 72, 82, 247 N.W.2d 884 (1976), reh. den. 400 Mich. 951 (1977); Bluemlein v. Szepanski, 101 Mich.App. 184, 190, 300 N.W.2d 493 (1980), lv. den. 411 Mich. 995 (1981).

In this case, plaintiffs allege negligent construction. The elements of that action are: (1) the existence of a duty owed by defendant to plaintiffs [131 MICHAPP 400] or to any of plaintiffs' predecessors-in-interest, (2) to exercise due care in the construction of a building, and (3) a breach of that duty which (4) proximately caused (5) damages to plaintiffs or to any of plaintiffs' predecessors-in-interest. Moning v. Alfono, 400 Mich. 425, 437, 254 N.W.2d 759 (1977); Baranowski v. Strating, 72 Mich.App. 548, 556, 250 N.W.2d 744 (1976), lv. den. 399 Mich. 881 (1977).

Since the final element to have occurred in this case was the property damage and since such damage is not always discoverable at the time it first occurs, the three-year limitation period began to run when that property damage was or with reasonable diligence should have been discovered. For example, if the damage was not discovered and could not reasonably have been discovered until after plaintiffs took possession of the house, then the three-year period of limitations began running at that time and plaintiffs' action is not barred. On the other hand, if the damage was or with reasonable diligence should have been discovered prior to March 20, 1976, and plaintiffs' predecessors-in-interest simply failed to institute any legal action against defendant, then plaintiffs' cause of action is barred by the three-year statute of limitations. However, in both cases, the determination of when the limitations period commenced is for the trier of fact. Bonney, supra.

Reversed and remanded for further proceedings.

JOSLYN, Judge, dissenting.

I respectfully dissent. The Legislature has the power to limit the period in which a cause of action may be brought. The Legislature has determined that the proper period in this case is three years....