LOCAL 1064, RWDSU AFL-CIO v. Ernst & Young

204 Mich. App. 445 (1994) 516 N.W.2d 492

LOCAL 1064, RWDSU AFL-CIO
v.
ERNST & YOUNG

Docket No. 133880.

Michigan Court of Appeals.

Submitted November 8, 1993, at Detroit. Decided April 4, 1994, at 9:45 A.M.

William Mazey, for the plaintiff.

Dickinson, Wright, Moon, Van Dusen & Freeman (by Lawrence G. Campbell and Brian K. Zahra), and Linda M. Beyer, for the defendants.

Before: HOLBROOK, JR., P.J., and NEFF and J.F. KOWALSKI,^[*] JJ.

NEFF, J.

Plaintiff brought suit, alleging that defendants breached their contract to perform accounting services for plaintiff. Defendants moved for summary disposition pursuant to MCR 2.116(C) (7) on the ground that the action was characterized properly as malpractice and, therefore, was barred by the two-year period of limitation set forth in MCL 600.5805(4); MSA 27A.5805(4). On the basis of its finding that the action was for pecuniary damages, rather than for "injuries to persons or property," the circuit court ruled that § 5805(4) did not apply. It found that the six-year limitation period set forth in MCL 600.5813; MSA 27A.5813 applied and denied the motion. Defendants appeal by leave granted from that ruling.^[1] We affirm.

I

According to the complaint, the accounting firm of Arthur Young, now Ernst & Young,^[2] was employed to examine records, to audit accounts, and to see that required payments to governmental agencies were made. In July 1988, plaintiff discovered that its former bookkeeper had not prepared and submitted reports required by the Michigan Employment Security Commission for the years 1984 through 1988 inclusive. According to interrogatory answers submitted by plaintiff, the MESC sent notices to plaintiff, but plaintiff's former secretary hid them. The MESC denied plaintiff permission to file corrected statements. Plaintiff appealed that decision, and a hearing referee also denied plaintiff such permission. As a result, the MESC assessed a contribution rate of ten percent of the estimated payroll for those years, a rate allegedly higher than plaintiff would have had to pay had the reports been filed timely. According to the complaint, the hearing referee's decision was based partly on the fact that defendants audited plaintiff's "records and obligations" during the pertinent period. Plaintiff's apparent but unstated contention is that defendants were liable for not discovering that the MESC reports were never submitted. Plaintiff sought recovery of the contribution paid.

II

As noted, defendants contended that plaintiff's suit was barred by the limitation period contained in subsection 4 of § 5805 of the Revised Judicature Act, which provides in pertinent part:

(1) A person shall not bring or maintain an action to recover damages for injuries to persons or property unless, after the claim first accrued to the plaintiff or to someone through whom the plaintiff claims, the action is commenced within the periods of time prescribed by this section.

* * *

(4) Except as otherwise provided in this chapter, the period of limitations is 2 years for an action charging malpractice. [Emphasis added.]

The trial court ruled that § 5805 did not apply because plaintiff sought damages only for financial loss, not for injury to persons or property. In support of that ruling, the trial court relied on Bacco Construction Co v American Colloid Co, 148 Mich App 397; 384 NW2d 427 (1986), in which a panel of this Court ruled that § 5805 applies only to actions to recover damages for injuries to persons or property and not to actions for injuries to financial expectations. Bacco, p 410. However, in Nat'l Sand, Inc v Nagel Construction, Inc, 182 Mich App 327; 451 NW2d 618 (1990), a panel of this Court disagreed with the ruling in Bacco, setting up a conflict on the issue.^[3] We now resolve that conflict in favor of the opinion in Nat'l Sand, which now becomes the controlling law regarding this issue under Administrative Order No. 1990-6, as extended by Administrative Order No. 1994-3.

The Nat'l Sand opinion extensively sets out the basis of the panel's disagreement with Bacco, and, thus, there is no need to reiterate it here. In a nutshell, the holding is that application of § 5805 is not limited to situations involving only physical injuries or physical damage to property. Nat'l Sand, p 335. As noted in Nat'l Sand, § 5805, by its terms, applies to several causes of action that rarely, if ever, involve a physical injury. Nat'l Sand, p 335, n 4. We agree with and adopt the reasoning and conclusion in Nat'l Sand concerning this issue. Therefore, we find that the trial court's ruling in the present case regarding the applicability of § 5805 to claims for financial loss was incorrect.

III

That conclusion, however, does not resolve the issue at hand. A question still remains concerning which statute of limitations applies. Defendants contend that the two-year limitation period for malpractice actions set forth in § 5805(4) applies to malpractice claims against accountants. We disagree.

In Sam v Balardo, 411 Mich 405; 308 NW2d 142 (1981), the defendant attorney argued that § 5805(4) applied to any action charging malpractice against a member of a state-licensed profession. That argument was based in part on § 5838 of the RJA, MCL 600.5838; MSA 27A.5838, which sets out the time of accrual of malpractice claims against "a person who is, or holds himself out to be, a member of a state licensed profession."

The Court stated that § 5838 pertains to accrual periods and does not define malpractice for the purpose of the two-year limitation period. Sam, p 421. The Court observed that the word "malpractice" is not defined in the RJA, and, so, it must resort to the common law for the definition. Id., pp 419-424. Applying the rule that words used by the Legislature derive their meaning from the common-law usage at the time of the passage of the act, the Court concluded that because actions for legal malpractice were recognized at the time of the Judicature Act of 1915 and at the time of the RJA of 1961, a cause of action for legal malpractice is encompassed within the definition of malpractice in § 5805(4). Sam, pp 424-425.

The Court stated that it need not and was not deciding whether § 5805(4) applied to members of all state-licensed professions. Sam, p 420. However, in a unanimous opinion in a subsequent case involving a claim against a funeral home, the Court said that, although a funeral director or mortician is engaged in a profession, the Legislature did not intend that every member of a state-licensed profession be covered by the two-year malpractice period of limitation. Dennis v Robbins Funeral Home, 428 Mich 698, 704; 411 NW2d 156 (1987). On the basis of its ruling in Sam, the Court held that because actions for malpractice against funeral homes or funeral directors were not recognized at common law, that profession was not among those that the Legislature intended to be included within § 5805(4). Dennis, p 705.

In Nat'l Sand, supra, pp 338-341, this Court also applied the rulings in Sam and Dennis to state that § 5805(4) apparently does not apply to a claim of professional misconduct against an engineer, because malpractice claims against engineers were not recognized at common law. As noted in Nat'l Sand, supra, p 338:

"Malpractice" does generally refer to professional misconduct or lack of skill. See Black's Law Dictionary (5th ed), p 864. However, "malpractice" has a narrower definition for purposes of applying the two-year period of limitation under § 5805(4).

We have not found any cases before 1961, when the RJA was enacted, in which a common-law cause of action for malpractice against accountants was recognized. Accordingly, we find that § 5805(4) does not apply in the present case.

IV

Because the two-year limitation period in § 5805(4) does not apply in this case, the applicable period may be found in § 5805(8), § 5813, or § 5807(8), MCL 600.5807(8); MSA 27A.5807(8). Section 5805(8) provides for a three-year limitation period for "all other actions to recover damages ... for injury to a person or property." Sections 5807(8) and 5813 each provide for a six-year limitation period, the former for "all other actions to recover damages or sums due for breach of contract" and the latter for "[a]ll other personal actions." However, it is not necessary that we determine which of those three limitation periods applies because the complaint was brought within three years, the shortest of those periods. Further, defendants did not contend, either below or on appeal, that if a three-year period of limitation is applied, plaintiff's claim is barred.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] Defendants also moved for summary disposition pursuant to MCR 2.116(C)(10), and that motion was also denied. However, that ruling is not challenged on appeal.

[2] The complaint originally named the accounting firm as "Arthur Young, a/k/a Arthur Young and Company." However, pursuant to stipulation of the parties, the circuit court ordered that the name be changed to "Ernst Young," the successor firm. That is apparently a typographical error, because an affidavit from a partner in the successor firm refers to that firm as "Ernst & Young." The spelling of the names of defendants Hevelhorst and Galasso, members of the accounting firm, also were changed pursuant to the stipulation and order.

[3] The panel in Nat'l Sand certified the conflict pursuant to Administrative Order No. 1984-2. However, in the absence of an application for leave to appeal, our Supreme Court declined to order further consideration of the question. 434 Mich 1214 (1990).