O'BRIEN v. Hazelet & Erdal

84 Mich. App. 764 (1978) 270 N.W.2d 690

O'BRIEN
v.
HAZELET & ERDAL

Docket No. 77-2823.

Michigan Court of Appeals.

Decided July 18, 1978.

Cholette, Perkins & Buchanan (by Bruce M. Bieneman and Kenneth L. Block), for plaintiffs.

Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen (by William D. Booth and Christine D. Oldani), for defendant.

Before: R.B. BURNS, P.J., and J.H. GILLIS and D.C. RILEY, JJ.

PER CURIAM.

The present case involves the application of Michigan's statute limiting actions against licensed architects and professional engineers arising out of work done on improvements to real property. MCL 600.5839(1); MSA 27A.5839(1).^[1]

In 1954, defendant, an engineering firm, contracted with the Michigan State Highway Department to serve as consulting engineer for construction of US-131 in the City of Grand Rapids. Apparently, construction work was completed on the highway sometime in 1961.

On June 28, 1975, plaintiff James O'Brien was injured when a truck he was driving tipped over on an "s-curve" on US-131. Plaintiffs filed suit on December 1, 1976, alleging that defendant had negligently designed the "s-curve", thereby proximately causing the accident.

Defendant brought a motion for accelerated judgment, GCR 1963, 116.1(5), claiming that the suit was barred since it was not brought within six years after defendant completed its work on the highway construction project. MCL 600.5839(1); MSA 27A.5839(1). The trial court denied the motion, ruling that the statute was unconstitutional because it barred the suit prior to the date of the injury. Defendant appeals the denial of the motion.

This Court has recently held that this statute does not violate due process by unreasonably restricting the right to sue. Muzar v Metro Town Houses, Inc, 82 Mich App 368; 266 NW2d 850 (1978), Bouser v Lincoln Park, 83 Mich App 167; 268 NW2d 332 (1978). The Legislature may abrogate a common-law right of action before it vests. Grubaugh v City of St Johns, 384 Mich 165; 180 NW2d 778 (1970), Snow v Freeman, 55 Mich App 84; 222 NW2d 43 (1974). The present statute is better termed a statute of abrogation rather than a statute of limitations. See Dyke v Richard, 390 Mich 739, 745-747; 213 NW2d 185 (1973).

The remaining issues raised were not presented to the trial court below and thus are beyond the scope of this Court's review. Oakland County v Detroit, 81 Mich App 308; 265 NW2d 130 (1978), Three Lakes Ass'n v Whiting, 75 Mich App 564; 255 NW2d 686 (1977). However, we will note that even had we been required to reach the merits of these issues, our decision would remain unchanged.^[2]

Reversed and remanded for entry of an order granting accelerated judgment in favor of defendant. Costs to defendant.

NOTES

[1] "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).

[2] Plaintiff had no standing to raise the equal protection issue in Muzar v Metro Town Houses, Inc, 82 Mich App 368; 266 NW2d 850 (1978). See Broadrick v Oklahoma, 413 US 601; 93 S Ct 2908; 37 L Ed 2d 830 (1973). The applicable statute of limitations is that in effect on the date that the cause of action accrues. Connelly v Paul Ruddy's Equipment Repair & Service Co, 388 Mich 146; 200 NW2d 70 (1972). We do not believe that the statute violates the title-body clause of the Constitution. Const 1963, art 4, § 24. See People v Milton, 393 Mich 234; 224 NW2d 266 (1974).