Filcek v. Utica Building Co.

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

• Court: Michigan Court of Appeals
• Decided: January 3, 1984
• Docket: Docket 58064
• Status: Published

Opinions

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, 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, MCL 600.5827; MSA 27A.5827, was enacted as part of the Revised Judicature Act. 1961 PA 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 § 5827 as stating that a claim does not accrue until one is injured, not when the wrong is committed. Connelly v Paul Ruddy’s Equipment Repair & Service Co, 388 Mich 146, 150; 200 NW2d 70 (1972). Also, Williams v Polgar, 391 Mich 6, 23-25; 215 NW2d 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 plaintiffs 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 Upjohn Co, 129 Mich App 18; 342 NW2d 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 NW2d 884 (1976), reh den 400 Mich 951 (1977); Bluemlein v Szepanski, 101 Mich App 184, 190; 300 NW2d 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 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 NW2d 759 (1977); Baranowski v Strating, 72 Mich App 548, 556, 250 NW2d 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.