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139666 - Miller-Davis Co v Ahrens Construction

Miller-Davis Company,
Alfred J. Gemrich
Scott G. Graham
(Appeal from Ct of Appeals
(Kalamazoo – Giguere, G.)
Ahrens Construction, Inc.
Samuel T. Field
Merchant Bonding Company,


​Miller-Davis Company was the general contractor hired to make an $8.7 million series of improvements, including a new natatorium, to YMCA buildings. Miller-Davis hired Ahrens Construction to install a roof system on the natatorium. Ahrens finished work in February 1999; on April 26, 1999, Ahrens certified to Miller-Davis that the work was complete. Miller-Davis paid Ahrens the next day. A temporary certificate of occupancy was issued for the whole project on June 11, 1999.

The YMCA’s contract with Miller-Davis included a one-year warranty on materials and workmanship. Within the first year, when the weather turned cold, the YMCA noticed condensation in the natatorium, so severe that at times it appeared to be “raining” in the pool area. Efforts were made to resolve the problem, but it continued into 2003, when Miller-Davis’ architect recommended removing the roof to determine the cause of the problem. Once the roof was removed and inspected, the architect concluded that it had been improperly installed. Ahrens disagreed, arguing that the roof was defectively designed. After unsuccessful efforts to have Ahrens perform corrective work, Miller-Davis eventually performed the corrective work itself in the fall of 2003.

On May 12, 2005, Miller-Davis sued Ahrens and another defendant. Miller-Davis brought two claims against Ahrens: breach of contract, for installing a roof that did not conform to plan specifications, and indemnity. Ahrens moved for summary disposition, alleging that the Miller-Davis lawsuit was untimely because it was filed after the expiration of the six-year period specified in the statute of repose, MCL 600.5839. That statute states: “No person may maintain any action to recover damages for any injury to property, real or personal . . . arising out of the defective and unsafe condition of an improvement to real property . . . 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, more than 6 years after the time of occupancy of the completed improvement, use, or acceptance of the improvement . . . .” The trial court denied the motion.

The case proceeded to a bench trial, and the trial court ruled in Miller-Davis’ favor. The court determined that Ahrens materially breached the parties’ contract by performing defective work on the roof, forcing Miller-Davis to perform corrective work, resulting in damages of $348,851.50.

Ahrens appealed by right to the Court of Appeals, raising a number of arguments, including that the judgment violated the statute of repose. In a published per curiam opinion, the Court of Appeals agreed with Ahrens on the statute of repose issue and reversed the judgment. The appeals court remanded the case to the trial court for entry of judgment for Ahrens. Miller-Davis appeals.