Citizens Insurance v. Osmose Wood Preserving, Inc.

585 N.W.2d 314, 231 Mich. App. 40
CourtMichigan Court of Appeals
DecidedOctober 23, 1998
DocketDocket 200763
StatusPublished
Cited by20 cases

This text of 585 N.W.2d 314 (Citizens Insurance v. Osmose Wood Preserving, Inc.) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Citizens Insurance v. Osmose Wood Preserving, Inc., 585 N.W.2d 314, 231 Mich. App. 40 (Mich. Ct. App. 1998).

Opinions

Young, Jr., P.J.

This case involves a dispute regarding liability for the collapse of the roof of a restaurant owned and operated by Kim’s of Novi (Kim’s). It is alleged that the collapse was caused by the deterioration of wood roofing materials that were adversely affected by flame-retardant chemicals manufactured by defendant. Plaintiff, Kims’ subrogee, insured the restaurant and paid in excess of $500,000 for the loss. Plaintiff sought, in turn, to recover the loss from defendant and initiated this lawsuit. The trial court determined that plaintiff’s exclusive remedy was under the Uniform Commercial Code (UCC), MCL 440.1101 et seq., MSA 19.1101 et seq., and that its cause of action was barred by the ucc’s four-year statute of limitations, MCL 440.2725; MSA 19.2725. Plaintiff appeals as of right from the court’s subsequent order granting summary disposition to defendant pursuant to MCR 2.116(C)(7). We affirm.

I. factual and procedural background

Kim’s owned and operated a restaurant in Novi, Michigan. During the original 1978 construction, the [42]*42builders installed wood trusses and plywood roof decking that had been treated for flame retardancy using chemicals manufactured by defendant. In 1982, Kim’s had an addition to the building constructed. The roofing materials that were installed at that time had also been treated for flame retardancy using defendant’s chemicals. Apparently, the wood was treated by a subcontractor according to instructions provided by defendant. Plaintiff’s complaint alleged that on January 27 and 29, 1994, the wood trusses and plywood roof decking utilized in the 1978 and 1982 construction deteriorated and collapsed, “causing extensive damage to Plaintiff’s subrogor’s real and business personal property.” Pursuant to its insurance policy with Kim’s, plaintiff paid $556,111.68 for damages caused by the collapse.

In January 1995, plaintiff initiated the instant lawsuit against defendant, among others, alleging negligence, breach of warranty, and fraud. Defendant filed a motion for summary disposition under MCR 2.116(C)(7), (8), and (10). Defendant argued that, because plaintiff’s claim arose from the commercial sale of goods and only economic damages were sought, the UCC provided plaintiff’s exclusive remedy. Further, defendant argued that plaintiff’s cause of action under the ucc was barred by the ucc’s four-year limitation period.1 The trial court agreed and granted summary disposition to defendant.

[43]*43n. STANDARD OF REVIEW

A trial court’s grant or denial of summary disposition will be reviewed de novo. Michigan Mut Ins Co v Dowell, 204 Mich App 81, 86; 514 NW2d 185 (1994). When reviewing a motion for summary disposition under MCR 2.116(C)(7), the trial court accepts the plaintiff’s well-pleaded allegations as true and construes them in the plaintiff’s favor. Witherspoon v Guilford, 203 Mich App 240, 243; 511 NW2d 720 (1994). The court must also consider the affidavits, depositions, admissions, and documentary evidence then filed in the action or submitted by the parties. MCR 2.116(G)(5); Patterson v Kleiman, 447 Mich 429, 432-434; 526 NW2d 879 (1994). If there are no facts in dispute, whether the claim is statutorily barred is a question of law. Witherspoon, supra at 243.

m. ANALYSIS

In Neibarger v Universal Cooperatives, Inc, 439 Mich 512, 527-528; 486 NW2d 612 (1992), our Supreme Court expressly adopted the “economic loss doctrine” and held that “where a plaintiff seeks to recover for economic loss caused by a defective product purchased for commercial purposes, the exclusive remedy is provided by the ucc, including its statute of limitations.” The Neibarger Court explained that the doctrine

hinges on a distinction drawn between transactions involving the sale of goods for commercial purposes where economic expectations are protected by commercial and contract law, and those involving the sale of defective products to individual consumers who are injured in a manner which [44]*44has traditionally been remedied by resort to the law of torts. [Id. at 520-521.]

Unlike some jurisdictions, the economic loss doctrine applies in Michigan even when the plaintiff is seeking to recover for property other than the product itself. Id. at 530.

Plaintiff argues that the economic loss doctrine should not apply in this case because, unlike the facts in Neibarger, (1) there was no contractual relationship between Kim’s and defendant, (2) Kim’s was not in a position to negotiate the terms of the sale, (3) the fire-retardant-treated wood was not directly related to Kims’ business, and (4) Kim’s could not have anticipated such an “unforeseeable disaster.” However, we do not believe that the express Neibarger holding can be avoided simply by distinguishing Neibarger on its facts. Indeed, the following explanation from Neibarger demonstrates the broad scope of the Court’s holding:

If a commercial purchaser were allowed to sue in tort to recover economic loss, the ucc provisions designed to govern such disputes, which allow limitation or elimination of warranties and consequential damages, require notice to the seller, and limit the time in which such a suit must be filed, could be entirely avoided. In that event, Article 2 would be rendered meaningless and, as stated by the [United States] Supreme Court in [East River Steamship Corp v Transamerica Delaval, Inc, 476 US 858, 866; 106 S Ct 2295; 90 L Ed 2d 865 (1986) ], “contract law would drown in a sea of tort.”
. . . [AJdoption of the economic loss doctrine will allow sellers to predict with greater certainty their potential liability for product failure and to incorporate those predictions into the price or terms of the sale. [Neibarger, supra at 528.]

[45]*45Moreover, as plaintiff concedes, in both Sullivan Industries, Inc v Double Seal Glass Co, Inc, 192 Mich App 333; 480 NW2d 623 (1991), and Freeman v DEC Int’l, Inc, 212 Mich App 34; 536 NW2d 815 (1995), this Court expressly rejected the argument that the economic loss doctrine does not apply in the absence of privity of contract. We are bound to follow those decisions under MCR 7.215(H). Accordingly, because Kim’s is a commercial business and the wood treated with defendant’s chemicals was purchased for commercial purposes, and because the damage to the restaurant was purely economic, under Neibarger, the ucc provides the exclusive remedy.

Plaintiff also contends that the ucc is inapplicable in this case because defendant provided a service rather than a good. Plaintiff claims, and the dissent agrees, that the transactions at issue were primarily for services, not goods. We find plaintiff’s position to be without merit. Michigan applies the “predominant factor test” to determine whether a contract primarily involves a sale of goods, actionable under the UCC, or a sale of services, actionable under general common-law principles. Home Ins Co v Detroit Fire Extinguisher Co, Inc, 212 Mich App 522, 526-527; 538 NW2d 424 (1995).

The problem with plaintiff’s argument is that it misapprehends defendant’s role in the transactions at issue: defendant merely provided the chemicals and accompanying instructions used by another company to treat the wood installed in Kims’ restaurant.

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Citizens Insurance v. Osmose Wood Preserving, Inc.
585 N.W.2d 314 (Michigan Court of Appeals, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
585 N.W.2d 314, 231 Mich. App. 40, Counsel Stack Legal Research, https://law.counselstack.com/opinion/citizens-insurance-v-osmose-wood-preserving-inc-michctapp-1998.