BOUSER v CITY OF LINCOLN PARK
Docket No. 77-1410
83 Mich App 167
Decided May 9, 1978
Submitted January 3, 1978, at Detroit. Leave to appeal granted, 403 Mich 828.
The statute relied on by the trial court is a statute of abrogation, not one of limitation and is constitutional as applied to the plaintiffs’ claim. Therefore, the trial court‘s grant of accelerated judgment for defendant Pate, Hirn & Bogue, Inc., was proper.
Affirmed.
N. J. KAUFMAN, J., concurred.
Application of the statute to the facts of the case at bar raised no question of equal protection. Had such questions been raised by this case, the statute should have been declared unconstitutional.
REFERENCES FOR POINTS IN HEADNOTES
[1] 73 Am Jur 2d, Statutes §§ 181, 185.
[2] 51 Am Jur 2d, Limitation of Actions §§ 31-43.
73 Am Jur 2d, Statutes § 199.
[3] 51 Am Jur 2d, Limitation of Actions § 13 et seq.
73 Am Jur 2d, Statutes § 181.
[4] 73 Am Jur 2d, Statutes §§ 155-160, 194, 195, 275.
[5] 16 Am Jur 2d, Constitutional Law §§ 538, 539.
STATES-STATE LEGISLATURE-ABOLISHMENT OF CAUSE OF ACTION-CONSTITUTIONAL LAW-STATUTES OF ABROGATION. The Legislature has the authority to abolish a cause of action which has not accrued; statutes enacted pursuant to this authority are statutes of abrogation (
Const 1963, art 3, § 7 ).- LIMITATION OF ACTIONS-STATUTE OF LIMITATIONS-STATUTES OF ABROGATION.
A key factor to consider in determining whether a statute barring a cause of action after the lapse of a specific time period is one of limitation or abrogation is the legislative intent underlying the enactment of the statute.
- LIMITATION OF ACTIONS-STATUTES OF ABROGATION-STATE LICENSED ARCHITECT-REAL PROPERTY IMPROVEMENT-STATUTES.
The statute which expressly prohibits any lawsuits against any state licensed architect or professional engineer performing or furnishing the design or supervision of construction of improvement to real property more than six years after the time of occupancy of the completed improvement, use or acceptance of such improvement is one of abrogation in respect to claims which accrue after the designated six-year period (
MCL 600.5839 ;MSA 27A.5839 ). - STATUTES-AMBIGUITIES-JUDICIAL CONSTRUCTION-LEGISLATIVE PURPOSE-OBJECT OF STATUTE.
A statute which is ambiguous or susceptible to two or more interpretations is open to judicial construction and should be construed reasonably in light of the legislative purpose of the statute and the object sought to be accomplished.
CONCURRENCE BY N. J. KAUFMAN, J.
- CONSTITUTIONAL LAW-EQUAL PROTECTION-LIMITATIONS-STATUTE OF ABROGATION-STATUTE.
In an appeal where the facts of the case do not present any equal protection questions with regard to the application of a statute which prohibits any lawsuits against any state licensed architect or professional engineer performing or furnishing the design or supervision of construction of improvement to real property more than six years after the time of occupancy of the completed improvement, use or acceptance of such improvement the constitutionality of the statute is not at issue; if such a question were before the Court, the statute should be de-
clared unconstitutional as a violation of equal protection ( US Const, Am XIV ,Const 1963, art 1, § 2 ,MCL 600.5839 ;MSA 27A.5839 ).
Milan & Miller, P. C., for plaintiffs.
Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen (by Dennis M. Day and Jeannette A. Paskin), for defendant Pate, Hirn and Bogue, Inc.
Before: BASHARA, P. J., and J. H. GILLIS and N. J. KAUFMAN, JJ.
J. H. GILLIS, J. On April 9, 1975, while walking in the City of Lincoln Park, plaintiff Margaret Bouser tripped on a curb constructed higher than the adjoining sidewalk, causing her to fall. She suffered permanent injury from a fracture of the left fibula and left tibia.
On August 26, 1976, plaintiffs started a lawsuit in Wayne County Circuit Court against the City of Lincoln Park, G. A. Morrison Company (the construction firm) and Pate, Hirn and Bogue, Inc. (the architectural firm). Plaintiffs alleged that defendant city was guilty of negligence and willful and wanton negligence in hiring the architects and the construction company, and failing to inspect, maintain and repair the sidewalk. The other defendants were alleged to have provided a defective and dangerous curb and sidewalk and failed to warn foreseeable users of the curb and sidewalk of the hazard.
On October 28, 1976, defendant, Pate, Hirn and Bogue, Inc., filed a motion for summary and/or accelerated judgment, contending that
The trial judge upheld the view of defendant Pate, Hirn and Bogue, Inc. Plaintiffs appeal.
It is well settled that the Legislature of this state has the authority to abolish a cause of action which has not accrued.
Plaintiffs contend that the statute2 at issue in the instant matter is one of limitation which cannot abolish a cause of action before it accrues. We disagree.
The Dyke case, supra, indicates that the legislative intent underlying the enactment of the statute is a key factor to consider in determining whether a statute is one of limitation or abrogation.3
“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 such improvement more than 6 years after the time of occupancy of the completed improvement, use or acceptance of such improvement. This limitation shall not apply to actions against any person in actual possession and control as owner, tenant or otherwise, of the improvement at the time the defective and unsafe condition of such improvement constitutes the proximate cause of the injury or damage for which the action is brought.”
MCL 600.5839(1) ;MSA 27A.5839(1) . (Emphasis supplied.)
Hence, the statute expressly prohibits any suits six years after the individual accepts the improvements. Accordingly, the statute is one of abrogation in respect to claims which accrue after the designated six-year period.
Plaintiffs’ brief on appeal rejects this analysis on the basis of the Dyke case, supra.
However, the statute construed to be one of limitation in the Dyke case does not specifically state when the period within which to maintain an
“No person may bring or maintain any action to recover damages for injuries to persons * * * unless, after the claim first accrued * * * he commences the action within the periods of time prescribed by this section.”
MCL 600.5805 ;MSA 27A.5805 . (Emphasis supplied.)
As noted by Connelly v Paul Ruddy‘s Equipment Repair & Service Co, 388 Mich 146, 151; 200 NW2d 70 (1972):
“Once all of the elements of an action for personal injury, including the element of damage, are present, the claim accrues and the statute of limitations begins to run.”
A careful reading of the statute at issue in the Dyke case indicates that the Legislature did not intend to eliminate a cause of action before it accrued. The purpose of the enactment was to limit the period in which actions could be maintained after they accrued.
However, the distinct language of the statute in the instant matter strictly prohibits any actions six years after occupancy or acceptance of the improvement. The statute does not concern itself with when the cause of action accrues. Accordingly, the plain language of the enactment leads us to the conclusion that the Legislature intended to abrogate any cause of action arising under the statute after the specific six-year period has run.
To hold otherwise, would require us to ignore well-settled principles of statutory construction.
“A statute may be judicially construed if the language used is ambiguous or the statute is susceptible of two or more meanings. Royal Oak School Dist v Schulman, 68 Mich App 589; 243 NW2d 673 (1976). The primary rule of statutory construction is to determine and effectuate the Legislature‘s intent. Williams v Secretary of State, 338 Mich 202; 60 NW2d 910 (1953), Chesapeake & Ohio R Co v Public Service Commission, 59 Mich App 88; 228 NW2d 843 (1975). Toward that end, statutory language should be given a reasonable construction considering the purpose of the statute and the object sought to be accomplished. Schoolcraft County Board of Commissioners v Schoolcraft Memorial Hospital Board of Trustees, 68 Mich App 654; 243 NW2d 708 (1976).” King v Director of the Midland County Department of Social Services, 73 Mich App 253, 258; 251 NW2d 270 (1977).
Statutes should also be construed as to avoid constitutional infirmity.4
An application of the aforementioned principles to the instant statute leads us to the conclusion that the statute is constitutional as applied to plaintiffs’ claim.5
Affirmed. Costs to appellees.
BASHARA, P. J., concurred.
N. J. KAUFMAN, J. (concurring). I concur in the result reached by the majority opinion as I agree that no question of equal protection is properly raised by the facts of this case. Had such a question been before us, I would have found
Notes
“Such a statute, if sustainable at all could be enforced only as one intended to abolish a common law cause of action. But this statute does not purport to do this, is not asserted to do so, and we cannot ascribe any legislative intention to accomplish that end. We read it as a statute of limitation which applies in every case except where the plaintiff does not know of his cause of action.” Dyke v Richard, 390 Mich 739, 746-747; 213 NW2d 185 (1973).