McCann v. BRODY-BUILT CONSTR. CO. INC.
McCann v. BRODY-BUILT CONSTR. CO. INC.
Opinion of the Court
In this negligence and breach of warranty action arising out of the sale of a used home, plaintiffs appeal as of right from an order of the circuit court granting defendant’s motion for summary disposition. We affirm in part, reverse in part, and remand for proceedings consistent with this opinion.
In August 1985, plaintiffs purchased a house from Janet Brody. The house had been built in 1977 or 1978 by defendant, Brody-Built Construction Company, Inc. Originally, the house was occupied by Morton Brody, a principal in defendant company, and his wife, Janet Brody. The Brodys
Shortly after purchasing the house, plaintiffs began to notice structural defects. On May 27, 1988, plaintiffs filed this action, alleging negligent construction and breach of warranty. Subsequently, defendant moved for summary disposition. The court, finding that plaintiffs’ negligence claim was barred by the applicable statute of limitations and that the warranty claim could not be pursued because it did not arise out of the sale of a new home, dismissed plaintiffs’ complaint.
Plaintiffs first argue that the trial court erred in dismissing their negligence claim on the ground of the statute of limitations. We agree.
Both parties rely on this Court’s decision in Filcek v Utica Building Co, 131 Mich App 396; 345 NW2d 707 (1984). Plaintiffs argue that the trial court should have evaluated the statute of limitations defense under the Filcek "discovery rule.” Defendant argues that plaintiffs’ negligence claim is barred under the Filcek discovery rule, because the alleged defects were, or should have been, discovered before May 27, 1985, three years before the action originally was filed. The trial court failed to apply the Filcek decision in . this case. Instead, the trial court, relying on H Hirschfield Sons, Co v Colt Industries Operating Corp, 107 Mich App 720; 309 NW2d 714 (1981), determined that because plaintiffs’ complaint had not been filed within three years of the date the negligence
The statute of limitations for negligence actions is three years. MCL 600.5805(8); MSA 27A.5805(8). MCL 600.5827; MSA 27A.5827 provides that a cause of action sounding in negligence "accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results.” However, § 5827 has been interpreted as meaning that a claim accrues when one is injured, not when the wrong is committed:
[T]he 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 [v Polgar, 391 Mich 6, 23-25; 215 NW2d 149 (1974)], the Supreme Court concluded that the plaintiff’s claim did not accrue until plaintiff knew or should have known of the defendant’s negligent misrepresentation. [Filcek, supra at 399.]
See also Connelly v Paul Ruddy’s Equipment Repair & Service Co, 388 Mich 146, 150; 200 NW2d 70 (1972). Under Filcek, the statutory period applies to both present and prior owners. In other words, the statutory period begins to run when an owner or a predecessor in interest discovered or
We hold that the trial court erred in failing to evaluate this issue in light of the principles set forth in Filcek. Therefore, we remand this matter for a determination whether Janet Brody knew or should have known of the defective condition of the house. Our remand is without prejudice to the trial court entertaining a new motion for summary disposition on the ground of the statute of limitations. If such a motion is brought, the trial court shall base its decision on the principles set forth in Filcek.
Plaintiffs next argue that the trial court erred in dismissing their claim of breach of an implied warranty of fitness and habitability. We disagree. Such warranties run only to the first purchaser of a home. Weeks v Slavic Builders, Inc, 24 Mich App 621; 180 NW2d 503 (1970), aff'd 384 Mich 257; 181 NW2d 271 (1970). Plaintiffs were not the first purchasers of the house in question. Therefore, summary disposition of this claim was proper.
Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion. We do not retain jurisdiction. No costs, neither party having prevailed.
Concurring Opinion
(concurring in part and dissenting in
I acknowledge that, unlike Sullivan and Neibarger, the present case does not involve the sale of goods and is therefore not governed by the provisions of the Uniform Commercial Code. Nonetheless, the rationale behind the economic-loss doctrine still applies. Indeed, several courts have held that the economic-loss doctrine precludes a purchaser of a building from recovering in negligence against a builder where the purchaser’s losses are wholly economic. See, e.g., Ellis v Robert C Morris, Inc, 128 NH 358; 513 A2d 951 (1986), overruled in part on other grounds in Lempke v Dagenais, 130 NH 782; 547 A2d 290 (1988); Tusch Enterprises v Coffin, 113 Idaho 37; 740 P2d 1022 (1987); Nastri v Wood Bros Homes, Inc, 142 Ariz App 439; 690 P2d 158 (1984); Redarowicz v Ohlendorf, 92 Ill 2d 171; 441 NE2d 324 (1982); Crowder v Vandendeale, 564 SW2d 879 (Mo, 1978), overruled in part on other
As discussed at length in Sullivan, tort law is concerned with the "accident problem”; it is designed to protect against harm to persons or property. Sullivan, supra at 343. Consequently, when a party suffers only an economic loss in the context of a commercial transaction, tort law concerns are not implicated. Id. at 344. As noted in Sullivan, who will bear the risk of economic loss in commercial transactions is part of the bargaining process. Id. at 343.
The same holds true with regard to the sale of real estate, which has a separate framework for dealing with the risk of loss. The doctrine of caveat emptor prevails in land sales, Conahan v Fisher, 186 Mich App 48, 49; 463 NW2d 118 (1990), and here it is undisputed that plaintiffs bought the property "as is.” Under such a contract, the buyer bears the risk of loss unless the seller fails to disclose a concealed condition known to him that involved an unreasonable danger. Id. Plaintiffs apparently cannot avail themselves of this exception or have simply chosen not to pursue such a claim against Mrs. Brody. In any case, plaintiffs cannot recover in negligence against Brody-Built for losses that are solely economic.
If negligence were a viable cause of action under these circumstances, I would resolve the conflict between H Hirschfield Sons, Co v Colt Industries Operating Corp, 107 Mich App 720; 309 NW2d 714 (1981), and Filcek v Utica Building Co, 131 Mich App 396; 345 NW2d 707 (1984),
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 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 the improvement.
In light of Beauregard-Bezou v Pierce, 194 Mich App 388; 487 NW2d 792 (1992), and pursuant to Administrative Order No. 1990-6, 436 Mich lxxxiv and Administrative Order No. 1991-11, 439 Mich cxliv, we would be compelled to apply the statute if negligence were a cause of action under these circumstances.
In their second issue, plaintiffs argue that it was error for the trial court to dismiss their claim for breach of an implied warranty. Plaintiffs submit
I would affirm.
The panel in Filcek made no mention of the economic-loss doctrine, and nothing in the opinion indicates that it was ever raised. In
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