ELLEN M OSTROTH V WARREN REGENCY GP LLC
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Michigan Supreme Court
Lansing, Michigan
Chief Justice:
Opinion
Justices:
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED FEBRUARY 1, 2006
ELLEN M. OSTROTH and THANE OSTROTH,
Plaintiffs,
and
JENNIFER L. HUDOCK and BRIAN D.
HUDOCK,
Plaintiffs-Appellees,
v
No. 126859
WARREN REGENCY, G.P., L.L.C., AND
WARREN REGENCY LIMITED PARTNERSHIP,
Defendants,
and
EDWARD SCHULAK, HOBBS & BLACK, INC.,
Defendant-Appellant.
_______________________________
BEFORE THE ENTIRE BENCH
WEAVER, J.
This
architectural
malpractice
case
poses
the
issue
whether MCL 600.5839 is only a statute of repose, in which
case MCL 600.5805(6) or (10) supplies a shorter limitations
period, or is itself both a statute of repose and a statute
of limitations.
The Court of Appeals concluded that § 5839
is both a statute of repose and a statute of limitations
and
thus
the
barred.1
plaintiff’s
cause
of
action
is
not
time-
We agree and accordingly affirm that decision and
remand the matter to the circuit court.
FACTS
In
April
1998,
defendant
Edward
Schulak,
Hobbs
&
Black, Inc., architects and consultants, was the architect
in a renovation project, designing renovations for office
spaces
at
Michigan.
offices
12222
East
Plaintiff
from
April
Thirteen
Jennifer
24,
1998,
Mile
L.
Road
Hudock
through
in
Warren,
worked
August
in
24,
the
1998.
Plaintiff alleges that during that time she was exposed to
environmental
hazards
such
formaldehyde,
and
carbon
renovations
to
the
as
fungus,
dioxide
as
building’s
ventilation, and plumbing systems.
a
mold,
result
heating,
bacteria,
of
the
cooling,
She claims that she
sustained personal injuries as a result of environmental
hazards arising from the renovation of her workplace.2
1
263 Mich App 1; 687 NW2d 309 (2004).
2
Plaintiff’s husband’s claim is derivative. The other
plaintiffs in this case, Ellen M. and Thane Ostroth, and
two other defendants, Warren Regency, G.P., L.L.C.; and
Warren Regency Limited Partnership, are not parties to this
appeal.
2
Plaintiff initiated this action for damages on May 10,
2000.
In her first amended complaint filed November 14,
2000,
plaintiff
negligently
alleged
exposed
that
plaintiff
to
defendant-architect
a
hazardous
environment
that caused injury and increased the risk of injury in the
future.
Defendant
summary
disposition,
challenging the merits of plaintiff’s claim.
The circuit
court
affirmative
then
allowed
first
moved
defendant
for
to
amend
its
defenses to include the claim that plaintiff’s suit was
time-barred
by
the
two-year
limitations
period
of
MCL
motion
for
600.5805(6).
The
circuit
court
granted
defendant’s
summary disposition, holding that the two-year limitations
period for malpractice claims of MCL 600.5805(6) applied.
However, the Court of Appeals affirmed in part, reversed in
part, and remanded the matter to the circuit court, holding
that
the
six-year
limitations
period
of
MCL
600.5839(1)
applies to plaintiff’s action for damages.
We granted defendant’s application for leave to appeal
and directed that the parties include among the issues to
be briefed
(1) whether MCL 600.5839(1) precludes application
of the statutes of limitations prescribed by MCL
600.5805 and, if not, (2) which statute of
limitations, MCL 600.5805(6) or MCL 600.5805(10),
is applicable to the claim asserted against
3
defendant Edward Schulak, Hobbs & Black, Inc., in
this case.[3]
STANDARD OF REVIEW
This Court reviews de novo a trial court’s decision on
a
motion
for
summary
disposition.
Spiek
v
Dep't
of
Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998).
This case involves a question of statutory interpretation,
which this Court also reviews de novo.
Oade v Jackson
Nat'l Life Ins Co, 465 Mich 244, 250-251; 632 NW2d 126
(2001).
ANALYSIS
A person cannot commence an action for damages for
injuries to a person or property unless the complaint is
filed
within
the
periods
prescribed
by
MCL
600.5805.
Gladych v New Family Homes, Inc, 468 Mich 594, 598; 664
NW2d 705 (2003).
MCL 600.5805(1) provides:
A person shall not bring or maintain an
action to recover damages for injuries to persons
or property unless, after the claim first accrued
to the plaintiff or to someone through whom the
plaintiff claims, the action is commenced within
the periods of time prescribed by this section.
The several subsections of MCL 600.5805 define periods of
limitations for various types of actions to recover damages
for injuries to persons or property.
3
472 Mich 898 (2005).
4
Relevant to this case, MCL 600.5805(6) provides for a
two-year
period
of
limitations
for
actions
charging
malpractice, MCL 600.5805(10) provides a three-year period
of
limitations
600.5805(14)
for
general
addresses
the
negligence
period
of
actions,
and
limitations
MCL
for
an
action for damages involving a state-licensed architect and
an improvement to real property.4
The parties dispute the
effect and proper interpretation of MCL 600.5805(14) and
MCL 600.5839(1).
When
interpreting
statutes,
“we
presume
that
the
Legislature intended the meaning clearly expressed . . . .”
DiBenedetto v West Shore Hosp, 461 Mich 394, 402; 605 NW2d
300
(2000).
Judicial
construction
is
not
required
permitted if the text of the statute is unambiguous.
or
Id.
MCL 600.5805(14) was added to MCL 600.5805 in 1988.5
Subsection 5805(14) provides:
The period of limitations for an action
against a state licensed architect, professional
engineer, land surveyor, or contractor based on
an improvement to real property shall be as
provided in section 5839.
4
MCL 600.5805 has
current subsection 6
current subsection 10
the current subsection
5
been amended several times: the
was formerly subsection 4; the
was formerly subsection 8; and,
14 was formerly subsection 10.
1988 PA 115.
5
MCL
600.5839(1)
in
turn
specifies
a
six-year
period
of
limitations that begins to run “after the time of occupancy
of the completed improvement, use, or acceptance of the
improvement . . . .”
MCL 600.5839(1) was enacted twenty years before MCL
600.5805(14).6
MCL 600.5839(1) currently provides in full:
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 the improvement,
or against any contractor making the improvement,
more than 6 years after the time of occupancy of
the completed improvement, use, or acceptance of
the improvement, or 1 year after the defect
is
discovered
or
should
have
been
discovered,
provided
that
the
defect
constitutes
the
proximate cause of the injury or damage for which
the action is brought and is the result of gross
negligence on the part of the contractor or
licensed
architect
or
professional
engineer.
However, no such action shall be maintained more
than 10 years after the time of occupancy of the
completed improvement, use, or acceptance of the
improvement.
6
1967 PA 203. As originally enacted, MCL 600.5839(1)
did not provide a one-year discovery provision or the final
ten-year period for gross negligence claims.
These
provisions were added by 1985 PA 188 at the same time the
statute was expressly expanded to include contractors.
6
Defendant
contends
600.5839(1)
addition
is
to
a
the
that
statute
shorter
600.5805(6) and (10).7
that
when
an
the
action
six-year
of
repose
periods
of
period
that
of
operates
limitations
in
MCL
in
MCL
In other words, defendant claims
arises
within
the
six-year
period
specified by MCL 600.5839(1), the periods of limitations in
MCL 600.5805 still apply.
The Court of Appeals disagreed,
however, holding that MCL 600.5839(1) is both a statute of
limitations and a statute of repose so that an action for
damages
within
involving
six
architects
years
of
the
can
be
occupancy
filed
of
at
the
any
time
completed
improvement.
This Court first addressed MCL 600.5839(1) in O’Brien
v Hazelet & Erdal, 410 Mich 1; 299 NW2d 336 (1980).
O’Brien,
this
600.5839(1)
Court
and
upheld
the
described
the
constitutionality
statute’s
In
of
MCL
operation
as
follows:
[T]he
instant
statute
is
both
one
of
limitation and one of repose.
For actions which
accrue within six years from occupancy, use, or
7
“‘A statute of repose limits the liability of a party
by setting a fixed time after . . . which the party will
not be held liable for
. . . injury or damage . . . .
Unlike a statute of limitations, a statute of repose may
bar
a
claim
before
an
injury
or
damage
occurs.’”
Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511,
513 n 3; 573 NW2d 611 (1998)(citation omitted).
7
acceptance of the completed improvement, the
statute prescribes the time within which such
actions may be brought and thus acts as a statute
of limitations.
When more than six years from
such time have elapsed before an injury is
sustained, the statute prevents a cause of action
from ever accruing.[8]
Regarding the purpose of the statute, O’Brien stated: “The
Legislature chose to limit the liability of architects and
engineers in order to relieve them of the potential burden
of defending claims brought long after completion of the
improvement . . . .”9
Despite
“acts
as
a
statement10
O’Brien’s
statute
of
that
limitations”
MCL
for
600.5839(1)
claims
arising
within “six years from occupancy, use, or acceptance of the
completed improvement,” defendant argues that the six-year
period provided by MCL 600.5839(1) is merely a statute of
repose that does not inhibit the application of the twoyear period of limitations for malpractice claims or the
three-year period of limitations for negligence actions of
MCL 600.5805 (6) and (10).
For this argument, defendant relies on Witherspoon v
Guilford,
203
Mich
App
240;
8
O’Brien, supra at 15.
9
Id. at 14.
10
Id. at 15.
8
511
NW2d
720
(1994).
Witherspoon addressed whether the six-year period under MCL
600.5839(1)
period
of
precludes
the
limitations
of
application
the
of
current
the
MCL
three-year
600.5805(10)
“where the cause of action arises within six years after
the use or acceptance of the improvement.”11
concluded
that
subsection
14
was
added
to
Witherspoon
MCL
600.5805
merely to “underscore [the Legislature’s] intent to grant §
5839
primacy
limitation,
effect
over
other
running
would
from
defeat
the
arguably
the
applicable
time
repose
of
periods
discovery,
aspect
of
§
of
whose
5839.”12
Witherspoon further concluded that to apply MCL 600.5839(1)
exclusively of the shorter periods of limitations in MCL
600.5805 would render portions of MCL 600.5805 nugatory.
Although
Witherspoon13
correctly
recognized
that
the
current MCL 600.5805(14) and MCL 600.5839 “set forth an
emphatic
legislative
intent
to
protect
architects,
engineers, and contractors from stale claims,” we find no
evidence that through the enactment of MCL 600.5805(14) the
Legislature intended MCL 600.5839(1) to merely serve as a
statute of repose.
Regarding which period of limitations
11
Witherspoon, supra at 246.
12
Id.
13
Id. at 247.
9
applies to renovations to real property and the liability
of a state-licensed architect who furnished the design for
the renovations, there is no ambiguity in the language of
either
MCL
600.5805(14)
or
MCL
600.5839(1).14
MCL
600.5805(14) unambiguously provides that “[t]he period of
limitations
for
architect . . .
an
action
against
a
state
licensed
shall be as provided in section 5839.”
Because defendant is a state-licensed architect that
furnished
property
MCL
the
that
design
for
allegedly
600.5839(1)
the
the
caused
period
improvements
plaintiff’s
within
which
to
the
injury,
plaintiff
real
under
can
“maintain any action to recover damages for . . . bodily
injury” is six years “after the time of occupancy of the
completed
improvement,
use,
or
acceptance
of
the
improvement . . . .”
14
Cf. Michigan Millers Mut Ins Co v West Detroit Bldg
Co, Inc, 196 Mich App 367; 494 NW2d 1 (1992), concluding
that the effect of MCL 600.5805(14) on MCL 600.5839(1) was
ambiguous on a different question than that presented by
this
appeal.
Michigan
Millers
concluded
that
MCL
600.5805(14)
was
ambiguous
regarding
whether
the
Legislature intended that the six-year period of MCL
600.5839(1) be applied to all actions based on improvements
to real property, both third-party actions and actions for
professional
malpractice.
The
panel
examined
the
legislative history and held that the Legislature intended
that MCL 600.5839(1) did apply to both types of claims.
10
Moreover,
it
does
not
render
any
portion
of
MCL
600.5805 nugatory to hold that MCL 600.5839(1) is, as it
plainly appears on its face, both a statute of repose and a
statute of limitations.
600.5805
for
malpractice
The periods of limitations of MCL
and
general
negligence
actions
remain applicable to any claim that does not involve “a
state
licensed
surveyor,
or
architect,
contractor”
professional
and
that
improvement to real property . . . .”
is
engineer,
not
“based
land
on
an
MCL 600.5805(14).
Finally, our interpretation is not in conflict with
the
policies
underlying
MCL
600.5839(1)
that
this
Court
identified in O’Brien, supra at 16:
By
enacting
a
statute
which
grants
architects and engineers complete repose after
six years rather than abrogating the described
causes of action in toto, the Legislature struck
what it perceived to be a balance between
eliminating altogether the tort liability of
these professions and placing no restriction
other than general statutes of limitations upon
the ability of injured plaintiffs to bring tort
actions against architects and engineers. The
Legislature could reasonably have concluded that
allowing suits against architects and engineers
to be maintained within six years from the time
of
occupancy,
use,
or
acceptance
of
an
improvement would allow sufficient time for most
meritorious claims to accrue and would permit
suit against those guilty of the most serious
lapses in their professional endeavors.
As stated in O’Brien, “[t]he power of the Legislature to
determine the conditions under which a right may accrue and
11
the
period
within
undoubted.”
which
a
right
may
be
asserted
is
Id. at 14.
CONCLUSION
We
that
hold
the
that
600.5805(14)
unambiguously
directs
of
period
MCL
limitations
for
against
actions
architects is provided by MCL 600.5839(1).
six-year
period
of
MCL
600.5839(1)
Moreover, the
operates
as
statute of limitations and a statute of repose.
both
a
Therefore,
plaintiff’s action for damages, brought well within this
time
period,
decision
is
is
not
affirmed
time-barred.
and
this
The
case
circuit court for further proceedings.
Court
is
of
remanded
Appeals
to
the
To the extent that
the Court of Appeals decision in Witherspoon, supra, is
inconsistent with this opinion, it is overruled.15
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
15
We note that Witherspoon appears to have been the
“first out” under MCR 7.215(J)(1) on the precise question
of
statutory
interpretation
presented
in
this
case.
However, our decision to overrule Witherspoon to the extent
that it is inconsistent with our decision resolves any
conflict on the question.
12
S T A T E
O F
M I C H I G A N
SUPREME COURT
ELLEN M. OSTROTH and THANE OSTROTH,
Plaintiffs,
and
JENNIFER L. HUDOCK and
BRIAN D. HUDOCK,
Plaintiffs-Appellees,
v
No. 126859
WARREN REGENCY, G.P., L.L.C., and
WARREN REGENCY LIMITED PARTNERSHIP,
Defendants,
and
EDWARD SCHULAK, HOBBS & BLACK, INC.,
Defendant-Appellant.
_______________________________
KELLY, J. (concurring).
I
concur
with
the
majority
in
this
case
that
the
applicable limitations period is six years as stated in MCL
600.5839(1).
between
my
I write separately to explain the difference
decision
in
this
case
and
my
concurrence
in
Stanislawski v Calculus Constr Co, Inc, unpublished opinion
per curiam of the Court of Appeals, issued April 7, 1994
(Docket No. 145467).
When I penned my concurrence in Stanislawski I was
bound by Witherspoon v Guilford, 203 Mich App 240; 511 NW2d
720 (1994).
position
to
See MCR 7.215(J)(1).
overturn
Witherspoon
Now that I am in the
and
see
the
wisdom
of
doing so, I join in the decision reached by the Court in
this case.
Marilyn Kelly
2
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