Filcek v. Utica Building Co.
Filcek v. Utica Building Co.
Opinion of the Court
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,
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
In this case, plaintiffs allege negligent construction. The elements of that action are: (1) the existence of a duty owed by defendant to plaintiffs
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.
Dissenting Opinion
(dissenting). I respectfully dissent. The Legislature has the power to limit the period in which a cause of action may be brought. The Legislature has determined that the proper period in this case is three years. MCL 600.5805(8); MSA 27A.5805(8). The Legislature has further expressly provided the time at which a cause of action begins. A cause of action for negligent
Plaintiffs claim damages as a result of the negligent construction of the footings to the house they purchased in 1977. The claimed negligence is the pouring or installation of the footings, apparently underneath the fireplace and chimney. Plaintiffs allege that the footings were only 24" below grade and should have been installed at 48" below grade, and that as a result of the defendant’s negligent installation of the footings in 1966 the fireplace and chimney have been replaced and other damage to the dwelling has occurred and may continue into the future.
The trial court granted defendant’s motion for accelerated judgment holding that the action was time barred and that the cause of action accrued when the footings were installed. The circuit court affirmed. It is my opinion that the granting of the motion for accelerated judgment was correct and should be affirmed.
The purpose of legislation rendering stale claims unenforceable is to protect the fact-finding process from risk of error in making decisions on the merits. Faulty decisions occur from the difficulty of obtaining reliable evidence of events and circumstances which prevailed in the remote past. Decisions which are based upon stale claims will result in the reduction of the validity of the result. Facts presented from more recent transactions are generally more reliable than facts presented from more remote times. The two opinions that hold that a cause of action accrues when damage re-
No one suffered any injury to their person on this claim, therefore, Connelly v Paul Ruddy's Equipment Repair & Service Co, 388 Mich 146; 200 NW2d 70 (1972), does not apply. It is easy to see that a cause of action could be pled and filed by any interested party the day the forms were removed from the footings. A more correct interpretation of the statute on an injury to property is reflected in Cree Coaches, Inc v Panel Suppliers, Inc, 23 Mich App 67; 178 NW2d 101 (1970), and H Hirschfield Sons Co v Colt Industries Operating Corp, 107 Mich App 720; 309 NW2d 714 (1981).
Reference
- Full Case Name
- Filcek v. Utica Building Company
- Cited By
- 21 cases
- Status
- Published