Plаintiff, Liparoto Construction, Inc., appeals as of right two trial court orders, one order granting summary disposition in favor of defendants General Shale Brick, Inc., and Lincoln Brick & Stone and the other order granting summary disposition in favor of defendant State Auto Property & Casualty Insurance Company, both pursuant to MCR 2.116(C)(10). Because the trial court correctly concludеd that plaintiffs action against Lincoln Brick was barred by a contractual one-year limitations period and that General Shale was entitled to summary *28 disposition because there was no genuine issue of material fact that improper cleaning was the cause of the discoloration of the bricks involved in this case, we affirm summary disposition in favor of Lincoln Brick and General Shale. Further, because there was no genuine issue of material fact with respect to whether plaintiffs loss arose from an “occurrence” within the meaning of the policy, and plaintiffs loss was also subject to policy exclusions, summary disposition in favor of State Auto was also proper. We affirm.
I. UNDERLYING FACTS AND PROCEDURAL HISTORY
Plaintiff, a general contractor, contracted to build a house for Dorothy and Clayton Ainscough. Plaintiff built the brick exterior of the house with Sonora brick it purchased from Lincoln Brick. General Shale manufactured the Sonora brick. After plaintiff completed the brickwork in early 2006, the Ainscoughs reported that the bricks had become discolored and that the problem worsened when the bricks were wet. Gеneral Shale determined that the bricks became discolored because their lime-coating reacted with an acid cleaner that a contractor used postmanufacturing, contrary to General Shale’s explicit cleaning instructions. In December 2006, the Ainscoughs brought an administrative complaint against plaintiff with the Department of Consumer and Industry Services (now the Department of Energy, Labor, and Economic Growth). Plaintiff contacted its business liability insurer, State Auto, whose investigator concluded that the problem was attributable to a latent defect that occurred during manufacturing or warehousing. State Auto denied plaintiffs claim for coverage. Plaintiff thereafter entered into a mediation agreement with the Ainscoughs in which plaintiff agreed to undertake the necessary actions to correct the stained brick.
*29 Plaintiff thereafter brought this action against defendants, alleging claims for breach of implied warranty of merchantability and breach of implied warranty of fitness for a particular purpose against General Shale and Lincoln Brick and claims for breach of contract against Lincoln Brick and State Auto. The trial court granted summary disposition in favor of Lincoln Brick on the ground that plaintiffs action was barred by a one-year contractual limitations period and in favor of General Shale on the ground that there was no genuine issue of material fact that the discoloration of the brick was caused by plaintiffs misuse. State Auto argued that it was entitled to summary disposition because the discoloration of the bricks did not constitute an “occurrence” within the meaning of its policy or, alternatively, was expressly excluded from coverage. State Auto also argued that plaintiff violated the policy by voluntarily entering into a mediation agreement with the Ainscoughs without its consent. The trial court granted summary disposition in favor of State Auto, stating that the insurance policy was not “a bond to secure that [plaintiffs] work is [done] properly.” Plaintiff now appeals as of right.
II. STANDARD OF REVIEW
This Court reviews a trial court’s summary disposition decision de novo.
Reed v Breton,
III. LINCOLN BRICK
Plaintiff argues that the trial court erred by granting summary disposition in favor of Lincoln Brick on the ground that the action was barred by the one-year contractual limitations period set forth in Lincoln Brick’s invoice. Under the Uniform Commercial Code (UCC), MCL 440.1101
et seq.,
the purchaser of defective goods seeking to recover for economic loss and incidental and consequential damages must bring its action for recovery against the seller within four years of tender and delivery of the goods. MCL 440.2725;
Home Ins Co v Detroit Fire Extinguisher Co, Inc,
While plaintiff asserts that the contractual limitations period is procedurally unconscionable because it had no realistic alternative to acceptance of the term, plaintiff did not present any evidence in support of this assertion. For instance, plaintiff presented no evidence that it was unable to purchase the brick from another supplier or that Lincoln Brick was unwilling to provide the brick under different terms. Accordingly, plaintiff failed to establish a question of fact regarding procedural unconscionability.
Plaintiff also failed to establish that the one-year limitations provision was substantively unconscionable because the defect was not detectable for several months. The record reveals that the bricks were shipped in December 2004 and installed in early 2005. The record also shows that plaintiff became aware of the problem by summer 2005. Consequently, there is no support for plaintiffs argument that the alleged defect remained undetectable until it was too late to bring an action for relief. Under these circumstances, plaintiff has not shown that the one-year limitations provision shocks the conscience.
Plaintiff alternatively argues that equitable tolling should preclude Lincoln Brick from relying on the one-year contractual limitations period. Plaintiff did not raise an equitable tolling argument in the trial court. Accordingly, this issue is not preserved and is subject to review for plain error affecting plaintiffs substantial rights.
Hilgendorf v St John Hosp & Med Ctr Corp,
Application of the doctrine of equitable tolling to contractual limitаtions periods would be inconsistent with the deference afforded to parties’ freedom to con
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tract, including the freedom to avoid, by contract, what might otherwise be an applicable rule of law.
Coates v Bastian Bros, Inc,
IV GENERAL SHALE
The trial court granted summary disposition for General Shale on the ground that there was no question of fact that the brick discoloration was caused by improper acid cleaning, for which General Shale was not at fault. General Shale submitted an affidavit from its engineering manager, James Bryja, indicating that a “cube tag” (which provides product informatiоn and cleaning instructions) is affixed to every package of bricks. An exemplar of the cube tag in use for Sonora bricks in 2005 was submitted with Bryja’s affidavit. The cube tag contains the notation “CLEANING CATEGORY C” and includes cleaning information for categories A, B, and C. This information states that category C bricks should be cleaned with a nonacidic detergent because the acid-reaсtive coating is subject to color range changes if exposed to acid. The cube tag also states “GENERAL SHALE DISCLAIMS ANY AND ALL RESPONSIBILITY FOR DAMAGES RESULTING FROM CLEANING METHODS AND MATERIALS.” General Shale’s plant manager, Michael Baker, *33 stated in his affidavit that he examined the bricks and determined that they had been cleaned with acid. Tony Martinez of Tony’s Caulking admitted that his company used an acid-based cleaner on the bricks. The Ainscоughs also stated in their administrative complaint against plaintiff that they saw the brick cleaners use a product that was labeled “acid.”
Indeed, plaintiff does not dispute that the bricks were cleaned with an acid. Rather, plaintiff questions whether the cube tag was actually attached to the bricks. But plaintiff did not submit any evidence showing a genuine issue of material faсt with respect to this issue. Plaintiff contends that it established a question of fact regarding the cause of the discoloration by providing a copy of a report prepared for State Auto by a forensic engineer, Joseph Czajka, that stated that the color variation occurred at the factoxy or warehouse before arrival on the job site. However, unsworn statements, such as Czajka’s report, are not sufficient to create a genuine issue of material fact to oppose summary disposition under MCR 2.116(C)(10).
Marlo Beauty Supply, Inc v Farmers Ins Group of Cos,
V WHETHER SUMMARY DISPOSITION WAS PREMATURE
Plaintiff argues that summary disposition in favor of Lincoln Brick and General Shale was premature because discovery was not yet complete. A motion under MCR 2.116(C)(10) is generally premature if discovery has not been completed unless there is no fair likelihood that further discovery will yield support for the non-
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moving party’s position.
Townsend v Chase Manhattan Mortgage Corp,
Summary disposition in favor of Lincoln Brick was basеd on the one-year contractual limitations period, which is not a matter that requires further factual development. Indeed, parol evidence is inadmissible to vary clear and unambiguous contractual language.
In re Kramek Estate,
Summary disposition in favor of General Shale was based on evidence that the brick discoloration was caused by improper cleaning, not by any latent defects. Plaintiff had the opportunity to determine the cause of the discoloration after the Ainscoughs first reported the problem and in the Ainscoughs’ prior proceeding. Plaintiff also had the opportunity to obtain an affidavit from Czаjka in order to present his expert opinion as admissible evidence. Similarly, plaintiffs own employees and subcontractors were in the best position to provide sworn statements regarding the packaging materials and labels that may or may not have been attached to the shipment of Sonora brick. Under the circumstances, plaintiff has not shown a fair likеlihood that further discovery could enable plaintiff to establish a question of fact with respect to either the cause of the discoloration or the presence of the cube tag. For these reasons, plaintiff has failed to show that summary disposition was premature.
VI. STATE AUTO
Plaintiff argues that the trial court erred by granting summary disposition in favor of State Auto on the grоund that the discoloration was not an “occurrence”
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within the meaning of its policy. An insurance policy is construed in accordance with Michigan’s well-established principles of contract construction.
Citizens Ins Co v Pro-Seal Service Group, Inc,
State Auto’s policy provides coverage for bodily injury and property damage caused by an “occurrenсe.” The policy defines “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” The parties address three cases involving definitions of “occurrence” and “accident” in the context of property damage arising from the use of defective products.
In Bundy Tubing Co v Royal Indemnity Co, 298 F2d 151 (CA 6, 1962), several persons brought actions against the insured, a manufacturer of steel tubing that was installed in floors and used to heat buildings, alleging that defective tubing caused substantial property damage. The insured’s liability insurance carrier denied coverage for defense and indemnification costs on the ground that the lawsuits involved claims for breach of warranty and the underlying incidents were nоt caused by accidents. Id. at 152-153. The United States Court of Appeals for the Sixth Circuit disagreed and concluded that defective equipment caused substantial damage to the customers’ homes. Id. at 153.
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In
Hawkeye-Security Ins Co v Vector Constr Co,
We find Vector’s reliance on Bundy misplaced. Bundy stands for nothing more than the proposition that an insurer must defend and may become obligated to indemnify an insured under a general liability policy of insurance that covers losses caused by “accidents” where the insurеd’s faulty work product damages the property of others. In the instant case Vector seeks what amounts to recovery for damages done to its own work product, and not damage done to the property of someone other than the insured. [Id. at 377.]
This Court in
Radenbaugh v Farm Bureau Gen Ins Co of Michigan,
Were the underlying complaint limited to claims relating solely to the insured’s product, we would agree with defendant. However, it is clear that the underlying complaint alleged damages broader than mere diminution in value of the insured’s product caused by alleged defective workmanship, breach of contract, or breach of warranty. [Id. at 141.]
The Court considered the extensive damage to the buyers’ home, all of which resulted from the insured’s erronеous instructions. Id. at 141-142. The Court contrasted the factual circumstances in Hawkeye-Security, in which the Court held “ ‘that the defective workmanship of Vector, standing alone, was not the result of an occurrence within the meaning of the insurance contract.’ ” Radenbaugh, supra at 143, quoting HawkeyeSecurity, supra at 378 (emphasis in Radenbaugh). The Court also discussed the distinction between HawkeyeSecurity and Bundy, stating: “In Bundy, the insured’s defective workmanship caused damage to the property of others. The property damage that was not confined to the insured’s own work product was deemed to be “ ‘unforeseen, unexpected, and unintended and therefore an occurrence.’ ” Radenbaugh, supra at 144.
The Radenbaugh Court also emphasized that in Bundy, the Sixth Circuit “rejected defendant’s argument that an occurrence cannot arise based on the *38 insured’s negligence or breach of warranty.” Id. Rather, the court in Bundy had recognized that claims involving breach of warranty or negligence could constitute an accident. Id. This Court indicated that such claims constitute an accident when “the underlying action alleged more than damage to the insured’s own product.” Id. This condition was satisfied in Radenbaugh because the insured’s faulty instructions rendered the basement unusable. Id. at 144-145.
The
Radenbaugh
Court also extensively quoted
Calvert Ins Co v Herbert Roofing & Insulation Co,
In this case, “occurrence” is defined in the same manner as it was defined in Radenbaugh. The definition of “occurrence” in Hawkeye-Security is more detailed, but is not significantly different in substance. This Court in Radenbaugh held that damage resulting from negligence or breach of warranty would constitute an occurrence triggering the policy’s liability coverage only if the damage in question extended beyond the insured’s work product. Here plaintiff did not allege, *39 and presented no evidence, that there was damage beyond its own work рroduct. Accordingly, the trial court did not err by concluding that plaintiff failed to establish an occurrence within the meaning of the policy. 1
Affirmed. Defendants may tax costs.
Notes
On appeal, plaintiff also argues that all three defendants were not entitled to summary disposition under additional grounds that defendants raised before the trial court. In light of our conclusions that the trial court properly granted summary disposition for each defendant for the reasons discussed in this opinion, it is unnecessary to consider these alternative grounds.