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Citizens Insurance Co. v. Scholz11/8/2005
FOR PUBLICATION
Before: Bandstra, P.J., and Neff and Donofrio, JJ.
Plaintiff filed this action as subrogee of its insured, Zinger Sheet Metal, to recover damages sustained by Zinger when a building wall collapsed during a construction project undertaken by defendant contractors. Plaintiff appeals as of right an order of the trial court granting summary disposition for defendants pursuant to MCR 2.116(C)(7). The court found that plaintiff's claim was time-barred because it was governed by the three-year statute of limitations applicable to ordinary negligence actions, MCL 600.5805(10), and not by the six-year statute of limitation for contract claims, MCL 600.5807(8), or an action against a contractor based on an improvement to real property, MCL 600.5839(1). We conclude that plaintiff's claim is governed by MCL 600.5839(1) and was therefore timely filed. We reverse the grant of summary disposition and remand for further proceedings.
I.
In 1997, plaintiff's insured, Zinger Sheet Metal, retained defendant F.C. Scholtz as the construction manager for a project to build an addition to Zinger's main building. Defendants Bultsma Excavating, Inc., and Hoornhoorst Concrete, Inc., were hired as subcontractors for the project. On July 31, 1997, after the subcontractors dug below the foundation of the existing building while excavating the addition's foundation, the adjoining wall of the existing building collapsed. Plaintiff paid out $62,182.97 in insurance proceeds for damages related to the wall collapse.
Nearly six years later, on April 23, 2003, plaintiff filed a complaint seeking recovery from defendants. The trial court granted defendants' motion for summary disposition pursuant to MCR 2.116(C)(7) on the basis that plaintiff's claim was time-barred.
II.
This Court reviews de novo a trial court's grant of summary disposition under MCR 2.116(C)(7). Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Summary disposition is properly granted under MCR 2.116(C)(7) when an action is time-barred. Id. at 118 n 3. Young v Sellers, 254 Mich App 447, 449; 657 NW2d 555 (2002). "' bsent disputed questions of fact, whether a cause of action is barred by a statute of limitations is a question of law that this Court also reviews de novo.'" Id. at 450 (citation omitted).
III.
Plaintiff contends that contrary to the trial court's conclusion, the statute of repose for actions against architects, engineers, and contractors, MCL 600.5839(1), provides the limitations period for this action. We agree.
MCL 600.5839(1) provides:
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 t
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