If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

-1-

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

KRISTINA RENE FROST and GARY ALLEN 

MAYS, Individually and as Copersonal 

Representatives of the ESTATES OF SHAWNA 

RENE MAYS and TRISTAN ALLEN MAYS,

Plaintiffs-Appellants,

UNPUBLISHED

August 26, 2021

v No. 352720

Wayne Circuit Court

GENERAL MOTORS, LLC, LC No. 19-004087-NP

Defendant-Appellee.

Before: CAVANAGH, P.J., MURRAY, C.J., and REDFORD, J.

PER CURIAM.

Plaintiffs appeal as of right the trial court’s order granting defendant’s motion for summary 

disposition in this action arising from a fatal vehicle fire. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On July 3, 2018, a fire ignited in plaintiff Kristina Frost’s 2004 Buick Rendezvous as she 

drove with her two young children in North Carolina. The children both died as a result of the 

burns they sustained and Kristina suffered serious injuries while trying to save them. On March 

11, 2019, plaintiff, Gary Allen Mays, the children’s father, opened probate estates for both of the 

deceased children in Wayne County, Michigan. On March 21, 2019, plaintiffs filed a multicount 

complaint against defendant alleging that it bore liability for designing, manufacturing, selling, 

and failing to recall and fix the alleged seriously defective subject vehicle that caused the deaths 

of the children and injuries to Frost.1

 

1 Some of the wrongful acts alleged are attributed to defendant’s predecessor entity. We do not 

address the distinctions between defendant and defendant’s predecessor in this opinion because it 

is unnecessary for the disposition of this appeal.
-2-

Plaintiffs’ complaint alleged that Mays resided in Michigan and that Frost formerly resided 

in Michigan but currently lived in North Carolina. Defendant, a Delaware corporation, had its 

principal place of business in Detroit, Michigan. Plaintiffs alleged that Frost owned the 2004 

Buick Rendezvous and that defendant “designed, tested, manufactured, distributed, and/or sold” it 

with design defects that created an unreasonable risk of fires. Plaintiffs alleged that defendant 

knew of the unreasonable risk of fires but consumers could not until too late. Plaintiffs alleged 

that Frost would not have purchased the subject vehicle and Mays would not have allowed the 

children to travel in it, had they known the risks. They alleged that defendant actively concealed 

the defects, issued inadequate recalls, failed to warn, and continued to sell Buick Rendezvous 

vehicles.

Defendant moved for summary disposition under MCR 2.116(C)(8), arguing that North 

Carolina law applied and plaintiffs’ claims were barred by North Carolina’s statute of repose which 

provides:

(1) No action for the recovery of damages for personal injury, death, or damage to 

property based upon or arising out of any alleged defect or any failure in relation to 

a product shall be brought more than 12 years after the date of initial purchase for 

use or consumption. [NC Gen Stat 1-46.1(1).]2

Defendant also argued that MCL 600.5861, which pertains to cause of action accrual and limitation 

on commencement of actions, required application of North Carolina’s statute of repose.

Plaintiffs responded by arguing, among other things, that Michigan law applied under 

Michigan’s choice-of-law rules because of Mays’ Michigan citizenship and the fact that the 

children’s probate estates had been opened in Michigan. In support of plaintiffs’ position, 

plaintiffs attached as exhibits the Letters of Authority for Personal Representatives for the estates 

of the deceased children issued by the probate court. Plaintiffs asserted that Michigan had an 

interest in the estates’ claims and over property located in the state because Michigan probate 

courts have jurisdiction over property located in Michigan, including property that is owned by 

nonresident decedents, even if the only property of value in the minor decedents’ estates consists 

of the pending lawsuit.

Defendant replied by arguing that plaintiffs sought to confuse the issues by attaching the 

letters of authority. Defendants, therefore, attached the Applications for Informal Probate that 

Mays filed in the Wayne County Probate Court which identified North Carolina as the domicile 

and residence of the decedent children. The children’s North Carolina Certificates of Death which 

Mays filed in the probate court along with the applications also identified the domicile and 

residence of the decedent children as North Carolina at the time of their deaths. Defendant also 

pointed out that Mays’ address listed on the children’s Certificates of Death identified him as a 

 

2 While defendant states for the first time on appeal that there is an argument the earlier six-year 

statute of repose should apply, defendant acknowledges that it never made this argument below. 

This distinction would only become relevant if plaintiffs were able to show that the initial sale for 

use took place less than 12 years, but more than 6 years, before March 21, 2019, the date plaintiffs 

filed the complaint.
-3-

North Carolina resident with a North Carolina home address on the date of the incident, and that 

Frost resided in North Carolina with a North Carolina home address. Defendant argued that the 

evidence of the parties’ residency and the location of the incident established North Carolina’s 

interest in the matter and that, under Michigan’s choice-of-law principles, North Carolina law 

applied requiring dismissal of the action because of North Carolina’s statute of repose.

The trial court considered the parties’ arguments and their documentary submissions and 

granted defendant’s motion for summary disposition, holding that North Carolina law applied to 

the action under Michigan’s choice-of-law rules, and that North Carolina’s statute of repose barred 

plaintiffs’ action. Plaintiffs moved for reconsideration arguing that a Carfax vehicle history report

that they submitted with their motion indicated that an issue of fact might exist regarding when 

and to whom the subject vehicle had been initially purchased for use. The trial court denied the 

motion. This appeal followed.

II. STANDARDS OF REVIEW

We review de novo a trial court’s decision on a motion for summary disposition under 

MCR 2.116(C)(8). Bailey v Schaaf, 494 Mich 595, 603; 835 NW2d 413 (2013). The trial court

may grant the motion if no factual development could justify the plaintiffs’ claim for relief. Id. 

When deciding a motion under MCR 2.116(C)(8), the trial court must accept as true all factual 

allegations contained in the complaint. Id. Only the pleadings are to be considered. Maiden v 

Rozwood, 461 Mich 109, 119-120; 597 NW2d 817 (1999). However, in Kefgen v Davidson, 241 

Mich App 611, 616; 617 NW2d 351 (2000) (citations omitted), this Court explained:

Although defendants brought their motions for summary disposition pursuant to 

MCR 2.116(C)(8), the parties and the trial court relied on documentary evidence 

beyond the pleadings. Therefore, we will treat the motions as having been granted 

pursuant to MCR 2.116(C)(10) and examine the pleadings and the documents.

We review de novo a trial court’s ruling on a motion for summary disposition under MCR 

2.116(C)(10) which tests whether there is factual support for a claim. The trial court must consider

affidavits, pleadings, depositions, admissions, and other documentary evidence in a light most 

favorable to the nonmoving party to determine whether a genuine issue of material fact exists. Id.

(citations omitted). We also review de novo conflict-of-law issues. Frydrych v Wentland, 252 

Mich App 360, 363; 652 NW2d 483 (2002).

III. ANALYSIS

A. CHOICE OF LAW

Plaintiffs argue that the trial court erred by ruling that North Carolina law applied to this 

case and by granting defendant summary disposition on the ground that North Carolina’s statute 

of repose barred their claims. We disagree.

The threshold question in this case is whether North Carolina law applied. If it does, then 

it must be determined if North Carolina’s statute of repose applied. North Carolina’s statute of 

repose bars all claims for damages for personal injury, death, or damage to property based upon 

any alleged defect or failure in relation to a product more than 12 years after the date of the 
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product’s initial purchase for use or consumption. NC Gen Stat 1-46.1(1). Defendant argues that 

Farrell v Ford Motor Co, 199 Mich App 81; 501 NW2d 567 (1993), and Hall v Gen Motors Corp, 

229 Mich App 580; 582 NW2d 866 (1998), require application of North Carolina law, including 

the statute of repose. Plaintiffs argue, among other things, that Farrell and Hall are no longer good 

law because Michigan’s choice-of-law analysis evolved away from the reasoning articulated in 

those cases and now requires courts to decide the issue on policy grounds. Plaintiffs’ argument 

lacks merit.

In Farrell, the estate of a North Carolina resident who died in a motor vehicle accident in 

North Carolina brought a product liability suit in Michigan alleging that a Ford vehicle’s defects 

caused the decedent’s death. This Court considered whether Michigan law or North Carolina law 

applied. The trial court had denied defendant’s motion for summary disposition and held that

Michigan law applied precluding application of the then-current North Carolina statute of repose. 

Farrell, 199 Mich App at 83-84. This Court held that, under Olmstead v Anderson, 428 Mich 1; 

400 NW2d 292 (1987), “the law of the forum (lex fori) should be applied unless there is a ‘rational 

reason’ to displace it.” Farrell, 199 Mich App at 86. This Court explained that, when such a 

rational reason exists, trial courts must resolve the conflict-of-law issue by balancing the interests 

of the two states. Id. at 86-89, 94.

This Court noted evidence in the record showing that Ford had a substantial commercial 

presence in North Carolina, including employees located there, purchased materials from North 

Carolina suppliers, and sold cars there. Id. at 93. This Court found that North Carolina had an 

obvious interest to “encourage manufacturers . . . to do business in North Carolina” which 

contributed to North Carolina’s economy. Id.

3

 This Court agreed with the defendant that the 

defendant’s “substantial business dealings with the citizens of North Carolina gives North Carolina 

a substantial interest in encouraging more commercial activity and in affording defendant the 

protection provided by that state’s statute of repose.” Id. at 94. This Court reasoned:

While North Carolina has a substantial interest in applying its law, 

Michigan has little or no interest in this North Carolina accident involving a North 

Carolina resident. Michigan has no interest in affording greater rights of tort 

recovery to a North Carolina resident than those afforded by North Carolina. 

Michigan is merely the forum state and situs of defendant’s headquarters. Such 

minimal interests are insufficient to justify the result-oriented forum shopping that 

has been attempted. [Id. at 94 (citation omitted).]

This Court held that North Carolina law applied and the trial court erred by concluding otherwise. 

Id.

4

 

3 Farrell also expressly disapproved Mahne v Ford Motor Co, 900 F2d 83 (CA 6, 1990), one of 

the cases relied on by plaintiffs. Farrell, 199 Mich App at 90.

4

In a footnote, this Court further explained that the even if the vehicle had been designed and 

manufactured in Michigan its analysis would be the same. Farrell, 199 Mich App at 94 n 3.
-5-

In Sutherland v Kennington Truck Serv, Ltd, 454 Mich 274, 275; 562 NW2d 466 (1997), a 

case that arose from an accident involving an Ontario driver and an Ohio driver on a Michigan 

highway, our Supreme Court further clarified choice-of-law analysis:

[W]e will apply Michigan law unless a “rational reason” to do otherwise exists. In 

determining whether a rational reason to displace Michigan law exists, we 

undertake a two-step analysis. First, we must determine if any foreign state has an 

interest in having its law applied. If no state has such an interest, the presumption 

that Michigan law will apply cannot be overcome. If a foreign state does have an 

interest in having its law applied, we must then determine if Michigan’s interests 

mandate that Michigan law be applied, despite the foreign interests. [Id. at 286.]

The next year, this Court decided Hall, a case in which a North Carolina resident injured 

himself in North Carolina while working on an allegedly defective vehicle. The plaintiff, however,

resided in Michigan when he filed the lawsuit. Hall, 229 Mich App at 583. This Court analyzed 

the case under the balancing test articulated in Sutherland. Id. at 585. This Court held that a 

plaintiff’s residency should be assessed at the time of injury for choice-of-law purposes. Id. at 591. 

This Court noted that “GM has facilities in North Carolina and does substantial business there, 

including purchasing materials and parts to be incorporated into its automobiles.” Id. at 584. This

Court stated that, “[a]s in Farrell, we conclude that North Carolina has a substantial interest in 

having its law applied to this dispute.” Id. at 587. Likewise, as in Farrell, this Court concluded 

that Michigan had only minimal, insufficient interests in the accident. Id. Because North Carolina 

law applied, the then-current statute of repose barred the suit. Id. at 593.

We find no merit to plaintiffs’ argument that Farrell and Hall are no longer good law. 

Farrell and Hall are consistent with our Supreme Court’s choice-of-law analytical framework 

articulated in Sutherland. Plaintiffs seek to rely on Gaillet v Ford Motor Co, unpublished opinion 

of the United States District Court for the Eastern District of Michigan, issued May 3, 2017 (Case 

No. 16-13789), to support their position. Although lower federal court decisions may be 

instructive, they are not binding on this Court. Abela v Gen Motors Corp, 469 Mich 603, 607; 677 

NW2d 325 (2004). Moreover, in Gaillet, the federal court merely made the unexceptional point 

that those portions of Farrell which discussed the evolution and background of Michigan’s choiceof-law rules should not be quoted as if they represented current law. Gaillet, however, did not 

criticize Farrell’s holding or the legal principles underlying it. The other cases cited by plaintiffs 

similarly fail to support their argument. Contrary to plaintiffs’ contentions, Farrell and Hall 

remain binding precedent that, along with Sutherland, must guide our decision.

“Choice-of-law issues are to be decided case by case.” Burney v P V Holding Corp, 218 

Mich App 167, 172; 553 NW2d 657 (1996). Under Sutherland, we must first determine if any 

foreign state has an interest in having its law applied. In this case, the parties do not dispute that 

the fire occurred in North Carolina. Under Hall, plaintiffs’ residency must be assessed at the time 

of injury for choice-of-law purposes. Plaintiffs’ complaint contains no allegation about the 

residency of any of the plaintiffs at the time of the fire. Instead, plaintiffs alleged that, at the time 

of filing their complaint, Mays resided in Michigan, Frost resided in North Carolina, and the 

children’s estates were opened in Michigan by Mays. Plaintiffs conceded below and concede 

again on appeal that Frost resided in North Carolina at the time of the incident. The record reflects 

that, at the time of the children’s deaths, they each resided with their mother in Lenoir, North 
-6-

Carolina. The children’s respective North Carolina death certificates indicate that the children 

were North Carolina residents at the time of the incident. The children’s death certificates also 

indicate that Mays resided in Cullowhee, North Carolina, on or around the time of the incident. 

Plaintiffs assert in their brief that Mays resided in Michigan at the time of the incident but the 

record lacks evidentiary support for that assertion. The trial court found that the children and Mays

resided in North Carolina at the time of the incident based upon the children’s death certificates. 

We are not persuaded that the trial court erred in this regard. Even if Mays resided in Michigan at 

the time of the incident, because the fire occurred in North Carolina, injured one North Carolina 

resident, and killed two North Carolina residents, North Carolina certainly had an interest in this 

case, establishing a rational reason to apply North Carolina law. See, e.g., Hall, 229 Mich App 

at 585-586.

The next step in the analysis is to “determine if Michigan’s interests mandate that Michigan 

law be applied, despite the foreign interests.” Sutherland, 454 Mich at 286. The forum-shopping 

concerns expressed in Hall and Farrell are similarly relevant in this case, given that plaintiffs 

admit that “the only property of significant value in the minor decedents’ estates is the pending 

lawsuit.” Also, similar to Farrell and Hall, Frost and the children were not Michigan residents 

and were North Carolina residents at the time of the incident. While residency is just one of the 

factors that goes into weighing states’ respective interests in a case, it is an important one. Further,

we give no weight to the fact that the children’s estates were opened in Michigan. In Burney, 218 

Mich App at 173-174, this Court explained that, in a wrongful-death action, the residency of the

personal representative of a decedent’s estate is determined by the residency of the decedent at the 

time of death for choice-of-law purposes. In this case, the children resided and tragically died in 

North Carolina. The trial court, therefore, had to consider their personal representatives’ residency 

in North Carolina. The fact that the incident occurred in North Carolina and involved North 

Carolina residents weighs in favor of applying North Carolina law.

Plaintiffs submitted a Carfax vehicle history report that indicated that the subject 2004 

Buick Rendezvous had been first sold in late 2003 in North Carolina, then resold a couple times 

thereafter in North Carolina. The trial court found that defendant sells and distributes vehicles in 

North Carolina and North Carolina has an ongoing economic interest in encouraging defendant to 

conduct business in North Carolina. In Farrell, 199 Mich App at 94, this Court held that Michigan 

had “little or no interest” in having its law applied when Michigan merely constituted the forum 

state and situs of the defendant’s headquarters and manufacturing. This Court determined further 

that North Carolina had a substantial economic interest in encouraging manufacturers to do 

business in North Carolina by extending to such manufacturers the benefit of North Carolina’s 

statute of repose as protection from open-ended products liability claims. Id. at 93-94. Those 

same conclusions apply in this case. Michigan has little interest in this case other than as the forum 

state and situs of the defendant’s headquarters and manufacturing. After balancing the respective 

state interests, we hold that North Carolina’s interest outweighs Michigan’s minimal interest. The 

record reflects that the trial court properly applied the principles articulated in Sutherland, Hall, 

and Farrell, and determined that North Carolina law applied in this case.

The trial court also correctly determined that North Carolina’s statute of repose applied and 

required dismissal of plaintiffs’ claims. The record supports the trial court’s determination that 

the plaintiffs’ claims sought damages for personal injury, death, or damage to property based upon 

an alleged defect or failure in relation to a product more than 12 years after the date of the product’s 
-7-

initial purchase for use. The record indicates that the subject vehicle first had been purchased in 

North Carolina in late 2003 and resold at least twice thereafter in North Carolina.5 Therefore, 

more than 12 years elapsed from the time of the initial purchase for use. Accordingly, NC Gen 

Stat 1-46.1(1), North Carolina’s statute of repose, applied in this case and barred all of plaintiffs’

claims for damages for personal injury, death, or damage to property which were all based upon 

an alleged defect or failure of the subject vehicle. Accordingly, the trial court did not err by 

granting defendant summary disposition.

Because it held that the choice-of-law analysis required application of North Carolina law, 

the trial court did not decide whether Michigan’s borrowing statute, MCL 600.5861, provided an 

alternative basis for applying the North Carolina statute of repose. We similarly conclude that that 

issue is now moot and decline to address it. See Farrell, 199 Mich App at 94.

Affirmed.

/s/ Mark J. Cavanagh 

/s/ Christopher M. Murray 

/s/ James Robert Redford 

 

5 We find no merit to plaintiffs’ argument that the subject vehicle’s initial purchase for use could 

have been by a dealer because the Carfax vehicle history report that they submitted to the trial 

court with their motion for reconsideration references that in January 2012 a dealer obtained the 

vehicle which they contend may indicate that the statute of repose period may not have elapsed 

and that they should have been permitted discovery and an opportunity to amend their complaint. 

Analysis of that vehicle history report, however, plainly indicates that the first initial purchase for 

use of the vehicle occurred in December 2003 and clarifies that the Auto Auction Southeast Region 

obtained the vehicle in January 2012 and 11 days later that entity sold the vehicle to the second 

purchaser. Under North Carolina law, a dealer-distributor’s purchase of a product for the purpose 

of resale is not the “initial purchase for use” within the meaning of North Carolina’s statute of 

repose. See Chicopee, Inc v Sims Metal Works, Inc, 98 NC App 423, 427; 391 SE2d 211 (1990). 

Further, as explained in Chicopee, North Carolina’s Legislature chose to begin the timing of 

statutes of repose periods at the date of the initial purchase for use. Id. at 429.

We also find no merit to plaintiffs’ argument that the deceased minor children’s claims were not 

barred by North Carolina’s statute of repose because North Carolina’s statute that applies to accrual 

of claims and the running of limitation periods permits minors to bring claims after their disability 

has been removed. See NC Gen Stat 1-17(a). The plain language of that statute, however, clearly 

indicates that it does not apply to statutes of repose but tolls statutes of limitation only.

We decline to address plaintiffs’ argument regarding the constitutionality of North Carolina’s 

statute of repose because plaintiffs did not raise and the trial court did not address this issue. 

Therefore, plaintiffs waived the issue for appellate review. Walters v Nadell, 481 Mich 377, 387-

388; 751 NW2d 431 (2008).