Oole v. Oosting, Docket No. 31461-68
| Decision Date | 03 April 1978 |
| Docket Number | Docket No. 31461-68 |
| Parties | Anne OOLE and John Oole, Plaintiffs-Appellees, v. James and Katrina OOSTING, jointly and Individually, Defendants, and E. John Knapp, James G. Terzes and Paul Newhof, Individually, and Fred W. Moss and Albert Casemier, f/d/b/a Moss and Casemier, a copartnership, Individually and as copartners, Defendants- A James CARPENTER, Plaintiff-Appellee, v. James and Katrina OOSTING, jointly and Individually, Defendants, and E. John Knapp, James G. Terzes and Paul Newhof, Individually, and Fred W. Moss and Albert Casemier, f/d/b/a Moss and Casemier, a copartnership, Individually and as copartners, Defendants- A 82 Mich.App. 291, 266 N.W.2d 795 |
| Court | Court of Appeal of Michigan — District of US |
[82 MICHAPP 292] James M. Catchick, Grand Rapids, for Terzes.
[82 MICHAPP 293] Joel Krissoff, Grand Rapids, for Knapp.
Timothy I. Miner, Grand Rapids, for Newhof.
Peter L. Gustafson, Grand Rapids, for Moss and Casemier.
David L. Conklin and A. Ray Kalliel, Grand Rapids, for Oole.
Richard D. Ward, Grand Rapids, for Oostings.
Terrence L. Grosser, Grand Rapids, for Folk and Belliel.
Before J. H. GILLIS, P. J., and R. B. BURNS and ALLEN, JJ.
Plaintiffs Anne and John Oole and James Carpenter were injured when a wooden deck which was part of the residence of defendants James and Katrina Oosting gave way on July 10, 1973. Suit was brought against the Oostings on January 31, 1975, and plaintiffs subsequently amended their complaints on June 26, 1975, to allege negligence by the designers and builders of the deck. This amendment added as defendants E. John Knapp and James G. Terzes, registered architects, Paul Newhof, a registered engineer, and Fred W. Moss and Albert Casemier, contractors. The added defendants moved for accelerated judgments because the suits were brought more than six years after the residence was occupied by the Oostings in 1966, and therefore allegedly barred by M.C.L.A. § 600.5839(1); M.S.A. § 27A.5839(1). The trial court held the statute was inapplicable, and denied the motions. We granted leave to appeal, and affirm as to Moss and Casemier, but reverse as to Knapp, Terzes and Newhof.
The statute which we must interpret provides:
M.C.L.A. § 600.5839(1); M.S.A. § 27A.5839(1).
Subsection (2) provides similar protection for licensed land surveyors.
The trial court, relying by analogy upon American States Insurance Co. v. Taubman, Co., Inc., 352 F.Supp. 197 (E.D.Mich., 1972), decided the statute did not apply where plaintiffs had not dealt directly with defendants. In American States Insurance Co. insurance companies subrogated to the rights of the owner of a shopping center and its lessees sued defendants who had negligently installed a light fixture which caused a fire eight years later. The applicable negligence statute of limitations required suit to be brought within three years of when the claim first accrued to the subrogor. M.C.L.A. § 600.5805; M.S.A. § 27A.5805. A claim accrues when all of the elements of the cause of action have occurred and can be alleged in a proper complaint. M.C.L.A. § 600.5827; M.S.A. § 27A.5827, Connelly v. Paul Ruddy's Equipment Repair & Service Co., 388 Mich. 146, 200 N.W.2d 70 (1972). Because the owner had dealt directly with the defendants, a cause of action against the defendants had accrued as soon as the fixture was negligently installed, for the owner had as a result suffered immediate damage; suit was therefore barred. However, the lessees, who had no contractual relationship with the defendants, had no cause of [82 MICHAPP 295] action accrue until the fire occurred, causing the damages; suit was therefore not barred.
Unlike most statutes of limitations, the time period in the instant statute starts to run from the time of occupancy, use or acceptance of the improvement, and not from the time the cause of action accrues. Although direct dealing may be relevant in some cases as to when a cause of action accrues, American States Insurance Co., supra, it is irrelevant when the time period does not begin to run when the cause of action accrues. The plain wording of the instant statute bars actions by all persons who fall within its provisions, and not only those who have dealt directly with the persons who made the improvements.
The Court in American States Insurance Co., supra, at 201, implied in dictum that only architects and engineers enjoy the six-year cut-off in liability under the instant statute. Defendants Moss and Casemier submit that the statute cuts off claims against all persons who make improvements to real property, as well as actions for contribution and indemnity against architects and engineers.
We must look to the Legislature's intent at the time it passed the statute to determine if it meant to include contractors. A history of the bill indicates that it was first introduced in the Senate February 9, 1967. It read in part:
"A claim based on the improper design planning, supervision or construction of an improvement to real property by state licensed architect or engineer accrues at the time such architect or engineer discontinues such services."
Contractors were not mentioned and the bill definitely applied only to architects and engineers.
[82 MICHAPP 296] March 31 the Committee on Judiciary reported out the bill favorably with amendments. One amendment stated: "This section shall include registered land surveyors as defined in section * * * ".
The bill was further amended in the House and returned to the Senate June 15th. June 16th the House amendments were approved by the Senate.
Contractors were not mentioned.
At the present time there is pending in the Legislature Senate Bill No. 111, introduced February 8, 1977, which would amend the act in question and include contractors.
Therefore, in our opinion the Legislature did not intend to include contractors when the bill was passed in 1967.
Defendants Ross and Casemier have argued that the statute should be interpreted as including within its protection contractors in order to avoid substantial equal protection problems. We feel legislative history cannot support that interpretation. Because Ross and Casemier have not requested in the alternative that the statute be held unconstitutional, we do not reach the merits of the equal protection issue.
Plaintiffs argue that the statute deprives them of property without due process, because their claims were barred before they had an opportunity to sue. Similar arguments have been made to the Supreme Court as to other statutes of limitations.
In Connelly v. Paul Ruddy's Equipment Repair & Service Co., supra, defendants urged the Court to construe M.C.L.A. § 600.5827; M.S.A. § 27A.5827 as providing that a negligence action accrues at the time of the negligent act, and not at the time all of the elements, including damages, are present. Under this construction the statute would abolish a cause [82 MICHAPP 297] of action for negligence if the negligent act was followed by injury within the three-year period. M.C.L.A. § 600.5805(7); M.S.A. § 27A.5805(7). The Court avoided this construction by finding it inconsistent with the intent of the Legislature.
In Dyke v. Richard, 390 Mich. 739, 213 N.W.2d 185 (1973), the Court interpreted M.C.L.A. § 600.5838; M.S.A. § 27A.5838, which at that time provided that a claim for malpractice accrued at the time of last treatment or service as to the matter out of which the claim...
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