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STATE OF MICHIGAN
COURT OF APPEALS


FRANKLIN WOLFE and ANNA WOLFE, Plaintiffs-Appellants, v FERRANTI SCIAKY, INC., a Delaware corporation, Defendant-Appellee, and FORD MOTOR COMPANY, a Delaware corporation, Defendant.

UNPUBLISHED September 12, 1997

No. 183678 Monroe Circuit Court LC No. 93-101942 NP

Before: Young, P.J., and White and P. D. Schaefer*, JJ. PER CURIAM. Plaintiffs appeal the circuit court's order granting defendant Ferranti Sciaky (defendant) summary disposition on statute of limitations/repose grounds. MCR 2.116(C)(7). Plaintiffs challenge the circuit court's application of the period of limitations/repose governing actions against architects, professional engineers or contractors arising from improvements to real property, MCL 600.5839; MSA 27A.5839,1 rather than the period of limitations governing product liability claims, MCL 600.5805(9); MSA 27A.5805(9). We remand. I The facts viewed in a light most favorable to plaintiff are that plaintiff suffered severe hand injuries on March 27, 1990, while performing job duties as an automatic welder repairman at Ford's Monroe plant. The Sciaky line 8 (line 8) is an automatic welding machine system located in the plant. * Circuit judge, sitting on the Court of Appeals by assignment. -1

Line 8 welds automobile wheels together and performs various other functions. After the wheels are welded, they travel down the line to a paint station. It was at line 8's paint station that plaintiff was injured. Plaintiff Franklin Wolfe (plaintiff) alleged that defendant manufactured, sold, installed and maintained the line 8 system.2 The line 8 system was installed in the 1970s.3 On the date in question, plaintiff was called to line 8 because a malfunction occurred at the line's paint station. An electric eye under and behind the paint station directs a light beam at the wheel and, if operating properly, the light beam makes contact with the receiver after passing through the valve stem hole. If the light does not pass through the valve stem hole, the line shuts down. Plaintiff testified at deposition that he had had experience with malfunctioning electric eyes in this area before he was injured. He testified that he went to the paint station and as he was inspecting the machine, rested his hand on the wheel, at which time, without warning, line 8 reactivated and immediately dragged his left hand into an unguarded pinch point. Plaintiff acknowledged that he did not lock out power to the line before inspecting it, and explained that he did not do so because had he done so, the electric eye could not have been tested because the power would be off, and because he expected the machine to have a cycle interrupt--a safety device that prevents accidental reactivation of a machine after a malfunction occurs. Plaintiff testified at deposition that such a cycle i nterrupt circuit was installed soon after his injury. Plaintiffs filed the instant complaint on March 26, 1993, alleging negligence and breach of warranty against defendant.4 Plaintiffs alleged that the conveyor line's sudden movement and exposed pinch point were due at least in part to defendant's design, manufacture, sale, supply, installation and maintenance of line 8, and that defendant breached the following duties to plaintiff: to reasonably design, test, manufacture, market and maintain said equipment; to reasonably protect against foreseeable dangers and prevent harm to intended users, including plaintiff, when the equipment is used for its intended purpose, including adequate control of movement of the conveyor line and adequate guarding of pinch points; to provide adequate safety guards and other protection devices and mechanisms so as to protect operators against the foreseeable dangers and injuries of said equipment, including unexpected start-ups and exposed pinch points; to adequately instruct as to the installation, maintenance and operation of the machinery, including the provision of hazard warnings, maintenance, and repair; to provide adequate controls and operating systems; and to adequately warn operators. Plaintiffs' breach of warranty count alleged that in placing its product into the stream of commerce, defendant made certain implied and express warranties regarding its product, which it breached, including, but not limited to, warranties that its product was fit for its intended and foreseeable uses; was reasonably safe and free from all hazards, risks, dangers and defects; and was of merchantable quality. Defendant moved for summary disposition on several grounds, including that plaintiffs' claims were barred by the statute of limitations/respose governing actions against architects, engineers and contractors arising out of an improvement to real property. MCL 600.5839; MSA 27A.5839. Defendant argued that line 8 was an "improvement to real property," defendant was a "contractor,"5 and more than six years had elapsed between the date of the occupancy, use, or acceptance of the -2

improvement to real property, and the date this action was filed. Defendant submitted no affidavits in support of its motion.6 Plaintiffs' response to defendant's motion for summary disposition argued that defendant had produced no evidence to establish that the injury-causing machine was an "improvement to real property," that defendant had admitted to being the manufacturer and supplier of the injury-producing machine, and had admitted that plaintiffs' action was brought under the product liability statute, MCL 600.2945 et seq.; MSA 27A.2945 et seq. Plaintiffs further asserted that line 8 was "not integral nor incorporated into the design of the Monroe Ford plant. It was put in long after the plant was built and it appears that it has been moved and reconfigured since its original installation." Plaintiffs argued that their claims "relate to a very specific part of what Defendant identifies as Sciaky line #8, i.e., a station on an automatic welding machine where paint is sprayed onto wheels which have been welded together earlier on the line." The circuit court's opinion granting defendant's motion addressed only the statute of limitations argument, stating in pertinent part: The most instructive case on point seems to be Adair v Koppers, 741 F.2d 111 (CA 6, 1984). This is a Sixth Circuit case arising out of Ohio. It involves a dispute over whether a piece of industrial equipment (specifically a coal transportation device) is to be considered an "improvement", i.e., a part of the property in question. The court held that it was. If this decision is followed, then plaintiff's claim would be barred, and Defendant's motion should be granted. It is the opinion of this Court that the item known as "Sciaky Line #8" more properly is classified as an improvement to property and thus as part of the real property. Therefore, in light of the controlling statutes, Defendant's motion to dismiss is hereby granted. Prevailing party shall prepare the appropriate order. II In reviewing a motion for summary disposition filed under MCR 2.116(C)(7), we accept as true all well-pleaded allegations and construe them most favorably to the nonmoving party. Wade v Dep't of Corrections, 439 Mich 158, 162-163; 483 NW2d 26 (1992). We also consider all documentary evidence submitted by the parties. Harrison v Dep't of Corrections, 194 Mich App 446, 449; 487 NW2d 799 (1992). The motion should not be granted unless no factual development can provide a basis for recovery. A In support of its motion for summary disposition, defendant relied on Fennell v Nesbitt, Inc, 154 Mich App 644; 398 NW2d 481 (1986), and Adair, supra, which was found persuasive therein. Adair was a diversity action involving Ohio law. In Adair, the plaintiff sought damages for injuries to his arm, which had been caught between a pulley and belt on a conveyor in the coal-handling system at a -3

Republic Steel by-product coke plant. The defendant, Koppers, had designed and built the conveyor and the entire plant in 1923. Koppers constructed eighty ovens to replace sixty-four existing ovens and modified the coal handling system in 1949, but had not performed any services with regard to the conveyor since. 741 F2d at 112. The plaintiff brought suit in 1981, alleging negligence, strict liability, and breach of express and implied warranties. Koppers filed a motion for summary judgment, arguing that the plaintiff's suit was barred by Ohio's statute of repose for designers and builders. The plaintiff argued in response that the conveyor was not an improvement to real property. The Adair court, noting that the Ohio Supreme Court had not interpreted the term "improvement to real property" as used in Ohio Rev. Code

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