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Ogden Martin Systems of Dent County3/12/2002
use, during these months (159,380 pounds in September 1989 and 511,640 pounds in October 1989). An October 1989 boiler log indicated that during that month the facility's boilers were operating at near maximum capacity.
In addition to the invoices and boiler logs, an October 19, 1989 Ogden Martin monthly progress report showed that up until that date the facility had delivered 8,369,400 pounds of steam to its steam distribution system, that the facility processed 7,001 tons of refuse between August 30, 1989 and October 1, 1989, and that during September 1989 the facility had received delivery of 8,453 tons of refuse. The October 1989 monthly progress report also noted that the facility was "now fully staffed," that plant personnel had received hazard communication training, and that " perations [were] now being trained by their shift supervisor in operating procedures and system's descriptions." Kent County's progress notes reflect that by July 20, 1989 all furniture was delivered to the facility's administration building and that Ogden Martin would relocate there by July 21, 1989. The deposition testimony of Ogden Martin's maintenance supervisor indicated that he moved into his office in the maintenance shop as early as May or June 1989. Ogden Martin's August 1989 monthly progress report documented that " he move into the Administration Building was accomplished on July 21, 1989."
Plaintiffs do not dispute the information within the invoices, logs and progress reports indicating that before October 31, 1989 the facility processed refuse into energy and sold it. Rather, plaintiffs argue that the facility was not being put to its "intended use" because the operations conducted represented tests and trial runs to ensure that the facility was operating correctly. We agree, however, with the trial court's conclusion that regardless whether one characterizes the facility activities as mere tests or regular operations, the undisputed facts establish that plaintiffs used the facility before October 31, 1989.
We conclude that the aforementioned evidence of activity within the facility that occurred by October 1989 plainly constituted use within MCL 600.5839(1). We reject plaintiffs' invitation to engraft onto the statute a subjective, undefined "testing" exception to use, for which the Legislature did not otherwise provide. Lantz v Southfield City Clerk, 245 Mich App 621, 626; 628 NW2d 583 (2001). Plaintiffs' proffered interpretation would defeat the legislative purpose behind the statute "to protect engineers, architects, and contractors from stale claims and to eliminate open-ended liability for 'defects in workmanship,'" Abbott, supra at 200, by permitting significant use to occur in the guise of "testing" without triggering the statutory six- year period.
In light of plaintiffs' failure to come forward with evidence creating a genuine issue of material fact regarding whether they used the facility before October 31, 1989, we conclude that the trial court properly granted defendants summary disposition because the limitations period within MCL 600.5839(1) barred plaintiffs' complaint.
Affirmed.
Hilda R. Gage
Kathleen Jansen
Peter D. O'Connell
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