Plaintiffs Katie Martineau Caron and Kevin Caron appeal as of right the trial court’s orders granting summary disposition in favor of defendants The Christman Company; David Osier and David Osier Associates, Inc. (collectively “Osier”); and Rafael Moneo and Moneo Brock Studio, L.L.C. (collectively “Moneo”). We affirm.
On June 22, 2009, plaintiff Katie Martineau Caron (hereafter “Caron”) suffered serious injuries when a T-shaped, three-part portable room partition (PRP) fell on her as she and a graduate student attempted to move the PRP on its casters (wheels) in order to expand the space in which Caron, an art instructor, was going to teach a ceramics class at the Cranbrook Academy of Art. At the time, Caron was
In April 2010, plaintiffs filed a 19-count complaint against Cranbrook, Christman, Osier, and Moneo, alleging various causes of action arising out of the design, construction, sale, and architectural use and incorporation of the PRP and the incident in which the PRP fell on Caron. The claims by plaintiff Kevin Caron were based on loss of services, society, companionship, and consortium in relationship to his injured wife. Cranbrook filed a motion for summary disposition, arguing that plaintiffs’ action was barred by the exclusive-remedy provision of the Worker’s Disability Compensation Act (WDCA), MCL 418.131(1). The trial court granted Cranbrook’s motion, and plaintiffs have not appealed that order. Over time, defendants Christman, Osier, and Moneo filed separate motions for summary disposition under MCR 2.116(C)(7) and (10), each arguing that MCL 600.5839 barred plaintiffs’ lawsuit. The crux of this case and appeal is whether the PRP that fell on Caron constituted “an improvement to real property” under MCL 600.5839, which provides in relevant part:
(1) A person shall not maintain an action to recover damages for injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective or unsafe condition of an improvement to real property, or an 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, unless the action is commenced within either of the following periods:
(a) Six years after the time of occupancy of the completed improvement, use, or acceptance of the improvement.
Plaintiffs do not contest that MCL 600.5839 generally applies to defendants, considering their professional fields, nor do plaintiffs dispute that installation of the PRPs was completed in the fall of 2002. Given that the accident occurred in June 2009, which, in light of plaintiffs’ concession, is more than “[s]ix years after the time of occupancy of the completed improvement, use, or acceptance of the improvement,”
At the summary disposition hearing, defendants maintained that the PRI] or its installation, constituted an improvement to real property, thereby implicating the statute, and plaintiffs argued to the contrary, focusing on the contention that the PRP was not affixed or annexed to the realty. The trial court found that the PRPs are “substantial” and were “part and parcel” of the art classroom addition and studio construction project completed in 2002. The court ruled that the PRPs “were a capital improvement to the property such that they qualif[ied] under [MCL 600.5839]....” In three separate orders, the trial court granted defendants’ motions for summary disposition under MCR 2.116(C)(7).
This Court reviews de novo a trial court’s decision on a motion for summary disposition, a determination that an action is time-barred, and questions of statutory construction. Ostroth v Warren Regency, GR LLC,
Under MCR 2.116(C)(7)..., this Court must consider not only the pleadings, but also any affidavits, depositions, admissions, or other documentary evidence filed or submitted by the parties. The contents of the complaint must be accepted as true unless contradicted by the documentary evidence. This Court must consider the documentary evidence in a light most favorable to the nonmoving party. If there is no factual dispute, whether a plaintiffs claim is barred under a principle set forth in MCR 2.116(C)(7) is a question of law for the court to decide. If a factual dispute exists, however, summary disposition is not appropriate. [Citations omitted.]
This appeal concerns the construction and applicability of MCL 600.5839, and in McCormick v Carrier,
The primary goal of statutory construction is to give effect to the Legislature’sintent. This Court begins by reviewing the language of the statute, and, if the language is clear and unambiguous, it is presumed that the Legislature intended the meaning expressed in the statute. Judicial construction of an unambiguous statute is neither required nor permitted. When reviewing a statute, all non-technical words and phrases shall be construed and understood according to the common and approved usage of the language, MCL 8.3a, and, if a term is not defined in the statute, a court may consult a dictionary to aid it in this goal. A court should consider the plain meaning of a statute’s words and their placement and purpose in the statutory scheme. Where the language used has been subject to judicial interpretation, the legislature is presumed to have used particular words in the sense in which they have been interpreted. [Citations and quotation marks omitted.]
By enacting MCL 600.5839, the Legislature chose to limit the liability of architects, engineers, and contractors in order to relieve them of the potential burden of defending against lawsuits commenced long after an improvement was completed. Ostroth,
“[T]he instant statute is both one of limitation and one of repose. For actions which accrue within six years from occupancy, use, or acceptance of the completed improvement, the statute prescribes the time within which such actions may be brought and thus acts as a statute of limitations. When more than six years from such time have elapsed before an injury is sustained, the statute prevents a cause of action from ever accruing.”
We have surveyed the Michigan and federal cases interpreting MCL 600.5839 and specifically the language “an improvement to real property.” As gleaned from the caselaw, the following factors should be examined in determining whether the PRP used in the art classroom addition constituted an improvement to real property: (1) the general nature of the PRPs, (2) whether the PRPs were integral components or essential to the operation of the art classroom addition, (3) whether the purchase, placement, and utilization of the PRPs required the expenditure of labor and money and increased the usefulness of, added value to, bettered, or enhanced the capital value of the art classroom addition in relationship to the structure’s intended use and purpose, and (4) the permanence of the PRPs, taking into consideration whether they were affixed, bolted, mounted, or otherwise physically annexed to the art classroom addition and whether their placement has been, or was intended to be, longstanding or for an indefinite period, remembering that “permanent” does not mean “eternal” and that the ability to remove an object without damaging realty does not preclude a finding of permanence. Miller-Davis Co v Ahrens Constr, Inc,
With respect to the general nature of the PRPs, unlike the objects or tangible items at issue in several of the cases cited earlier, the PRPs were part of the original designs and plans for the construction of the art classroom addition itself and the PRPs were actually incorporated into and placed in the addition as part of and during the construction project. As the trial court stated, the PRPs were “part and parcel” of the construction project. There can be no reasonable dispute that the construction project, which entailed the erection of a building, involved an improvement to real property. And given that utilization of the PRPs was part of the construction project, it is logical to conclude that installation of the PRPs themselves constituted an improvement to real property, as opposed to being viewed in isolation and outside the scope of the overall improvement. Additionally, the instant case does not present, nor should it have, any argument that placement of the PRPs in the art classroom addition was a simple repair matter rather than an improvement to real property. While the PRPs are movable, and indeed designed to be movable, the fact remains that they serve as walls in the art classroom addition. In general, interior walls create hallways, rooms, closets, and other spaces within a structure, and they are typically a significant feature of any building and construction project. We conclude that this factor favors a holding that the PRP that fell on Caron constituted an improvement to real property.
With respect to the question whether the PRPs were integral components or essential to the operation of the art classroom addition, we answer in the affirmative.
With respect to whether the purchase, placement, and utilization of the PRPs required the expenditure of labor and money and increased the usefulness of, added value to, bettered, or enhanced the capital value of the art classroom addition in relationship to the structure’s intended use and purpose, we again answer in the affirmative. As indicated in footnote 1 of this opinion, defendants maintain that subcontractor Wally Kosorki & Co, Inc., actually constructed the PRPs, and there is a work-change order in the record signed by Christman and Cranbrook referring to the installation of PRPs by Kosorki. This document lists a cost of $9,225 for Kosorki’s services in relationship to the change order. Accordingly, there is evidence of an expenditure of labor and money associated with the acquisition and placement of the PRPs as part of going forward with the construction project, and plaintiffs make no claim nor present any documentary evidence to the contrary. Furthermore, the PRPs increased the usefulness of or bettered the art classroom addition in light of the addition’s intended use and purpose, which was to provide space for art classes and studio projects, given that use of the PRPs allowed for the creation of multiple, private, and varied class or work areas that are suitable for the particular needs of a class, instructor, or student. In regard to whether the PRPs enhanced the capital value of the art classroom addition or added value to the addition in a monetary sense,
We first note that the permanence factor is not dispositive but is merely one of the factors to consider, Pendzsu,
There is no evidence that the PRPs have ever been removed from the building itself or that there is a plan to someday remove the PRPs. Walls, even portable walls, tend to be permanent in the sense that they generally remain at the site or location of the structure they serve, and the PRPs are crucial to the support and operation of Cranbrook’s art classes and activities. Osier’s manager on the construction project averred in an affidavit that Osier “provided the design for partition walls within the classroom addition.” And blueprints of the construction project suggest that the PRPs were shaped, sized, or otherwise custom-designed, fitted, and constructed specifically for the art classroom addition and its dimensions, rendering them less adaptable, if at all, for use in a different building or environment. Furthermore, we are not dealing with flimsy, lightweight, easily movable or removable partitions that can be displaced at a whim, which is evident from the accident that occurred. Plaintiffs’ expert, Munsell, averred that the PRP at issue is 7V2 feet tall and weighs approximately 2,100 pounds. The trial court noted that the PRPs are “substantial.” There is no indication that the PRPs are anything but a permanent part of the art classroom addition despite the lack of annexation.
A case that we find persuasive is Reames v Hawthome-Seving, Inc,
We note that in considering whether an item is attached to realty, the supreme court looks to the mode and sufficiency of the annexation, either real or constructive. In this case, although the first conveyor was on wheels, and therefore not annexed to the realty physically, it was constructively annexed to the realty. The first conveyor was not bolted to the floor, or physically annexed to the realty, as the other two conveyors were only because if it had been bolted to the floor, workers could not clean the dryer located above the conveyor. The first conveyor was never moved for any purpose other than to reach the dryer and was never moved more than four or five feet. Furthermore, the conveyor was so adapted to the use of the realty, making tiles, that a critical phase of the process, transporting the dried powder from the dryer to the storage silo, could not be performed unless the first conveyor was in place. Under these circumstances, we conclude that although the first conveyor technically could be moved, it was constructively annexed to the realty because [the company] never intended to move it more than a few feet as necessary for its operations and never moved it for any other purpose. The first conveyor was constructively annexed to the property as effectively as the other conveyor belts were, and it was specifically adapted to the purpose of the tile plant. These factors are all evidence of [the company’s] intent that the conveyor be an addition to the freehold, and we conclude the first conveyor was an improvement as a matter of law. [Id. (citation omitted).]
The same can be said for the PRPs in this case, which were also designed or intended for a particular building and to be movable for a specific critical function within the building, i.e., altering classroom and studio space as needed. The PRPs are constructively annexed to the art classroom addition.
Plaintiffs’ reliance on Vegel v Detroit Entertainment, LLC, unpublished opinion of the United States District Court, Eastern District of Michigan, issued November 20, 2007 (Docket No. 02-CV-73720-DT), aff'd
Finally, plaintiffs contend that summary disposition was premature because further discovery was necessary to determine whether the PRPs actually increased the value of the art classroom addition. As indicated earlier, it is reasonable to infer that, given the nature and characteristics of the PRPs, the purchase and installation costs of the PRPs, and the benefits of using the PRPs to create and adjust instructional and studio space, they necessarily increased the value of the art classroom addition to some extent. Summary disposition is generally premature if discovery is not complete. Prysak v R L Polk Co,
Affirmed. Having fully prevailed on appeal, defendants are awarded taxable costs pursuant to MCR 7.219.
Notes
We note that defendants contend, as supported by affidavits, that Christman was simply the general contractor on the construction project. Defendants maintain that subcontractor Wally Kosorki & Co, Inc., actually constructed the PRPs, and there is a work-change order in the record signed by Christman and Cranbrook that refers to the installation of PRPs by Kosorki. Ultimately, Christman’s status is irrelevant to resolution of this appeal.
We note that subsection (l)(b) of MCL 600.5839 provides that an action, under certain enumerated circumstances, can also he commenced within the following period:
If 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, 1 year after the defect is discovered or should have been discovered. However, an action to which this subdivision applies shall not be maintained more than 10 years after the time of occupancy of the completed improvement, use, or acceptance of the improvement. [Emphasis added.]
Plaintiffs’ action was filed less than one year after the incident and within 10 years of completion of the art classroom addition; therefore, the action would have been timely if gross negligence was involved, assuming satisfaction with the one-year discovery provision. The trial court gave plaintiffs seven days to amend their complaint to add allegations of gross negligence. Plaintiffs, however, chose not to amend their complaint, and there are no appellate issues concerning MCL 600.5839(l)(h).
Decisions rendered by lower federal courts are not binding but may be considered persuasive. Walters v Nadell,
For the reasons already alluded to, the PRPs added value to the art classroom addition on a nonmonetary level.
During Caron’s deposition testimony explaining the preliminary steps taken in the attempt to move the PRI] she gave no indication whatsoever that the PRP had to first be disconnected from the floor, ceiling, or any architectural wall. Plaintiffs’ expert, W Thomas Munsell, a registered professional engineer, averred in his affidavit that when he examined the PRR it was “fully movable on its casters and [was] not connected, affixed, attached or joined to the architectural walls, ceiling, floor, windows or any other element of the structure of the room or the building.”
Judicial decisions from foreign jurisdictions are not binding but maybe considered persuasive. Hiner v Mojica,
We also note the case of Kohn v Darlington Comm Sch,