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

revision until final publication in the Michigan Appeals Reports.

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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

FEDERATED MUTUAL INSURANCE 

COMPANY,

Plaintiff-Appellant,

UNPUBLISHED

July 20, 2023

v No. 362868

Genesee Circuit Court

CORLIN BUILDERS, INC, SGT, LTD 1, doing 

business as SORENSON GROSS COMPANY, and 

ALLIANCE ONE FIRE PROTECTION, INC,

LC No. 21-116302-CB

Defendants-Appellees.

Before: CAMERON, P.J., and BORRELLO and O’BRIEN, JJ.

PER CURIAM.

Plaintiff, Federated Mutual Insurance Company, appeals as of right the trial court’s order 

granting summary disposition in favor of defendants, Corlin Builders, Inc.; SGT Ltd. 1, doing 

business as Sorenson Gross Company (Sorenson); and Alliance One Fire Protection, Inc. In 

dismissing plaintiff’s claims, the trial court reasoned that they were barred by the six-year statute 

of repose in MCL 600.5839(1)(a). On appeal, plaintiff argues that its claims were not barred by 

the statute of repose in MCL 600.5839(1)(a) because plaintiff’s claims accrued within the period 

of repose. We conclude that, under the plain language of MCL 600.5839, plaintiff needed to 

commence its action within the applicable period of repose. Because plaintiff did not file this 

action until the period of repose expired, we affirm.

I. BACKGROUND

Most of the underlying facts in this case are undisputed. Sorenson and Corlin were hired 

as general contractors for the construction of the Fenton Cornerstone Condominium (the Building), 

and completed construction of the Building in April 2015. Sorenson and Corlin subcontracted 

with Alliance One to design and install the Building’s fire-protection system.

The first floor of the Building houses retail units, while the upper two floors are residential. 

Sawyer Jewelers, Inc. operated a jewelry store in one of the retail units on the first floor. On 

January 31, 2019, pipes that were part of the Building’s fire-protection system burst, causing over 
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$200,000 in damages to Sawyer’s property. Plaintiff insured Sawyer, and paid $222,493.27 to 

cover the damage.

On October 6, 2021, plaintiff brought the instant action as Sawyer’s subrogee. Plaintiff’s 

complaint alleged one count of negligence against Sorenson and Corlin, asserting that they 

improperly designed, constructed, or inspected the Building’s fire-suppression system, causing 

$222,493.27 in damage to Sawyer’s property. In a separate count, plaintiff alleged a nearly 

identical claim against Alliance One.

On April 27, 2022, Sorenson moved for summary disposition under MCR 2.116(C)(7) and 

(8). Sorenson argued that, because “[i]t is undisputed that construction was completed, and 

acceptance took place in April 2015,” plaintiff’s complaint filed in October 2021 was barred by 

the six-year statute of repose in MCL 600.5839(1)(a). Alliance One and Corlin concurred in 

Sorenson’s motion.

In response, plaintiff argued that, because its claim “vested” within the six-year statute of 

repose in MCL 600.5839, that statue did not bar its claim. Rather, according to plaintiff, because 

its claim vested before the statute of repose expired, the statute of repose did not apply, and plaintiff 

only needed to commence its action within the three-year statute of limitations applicable to its 

claims. Plaintiff explained that the statute of limitations applicable to its claims did not expire 

until January 2022, meaning that plaintiff’s claims were not time-barred.

After a hearing on defendants’ motion, the trial court granted summary disposition in favor 

of defendants. The court reasoned that “the statute of limitations . . . is subject to the statute of 

repose,” and because plaintiff failed to file its complaint within the time provided in the statute of 

repose, plaintiff’s complaint was barred regardless of the fact that it was filed within the applicable 

statute of limitations.

This appeal followed.

II. STANDARD OF REVIEW

A trial court’s decision on a motion for summary disposition is reviewed de novo. 

Michigan Assn of Home Builders v City of Troy, 504 Mich 204, 211; 934 NW2d 713 (2019). The 

trial court granted summary disposition to defendants on the ground that plaintiff’s claim was 

barred by the statute of repose in MCL 600.5839(1)(a). “Summary disposition is properly granted 

under MCR 2.116(C)(7) when the plaintiff's complaint is barred by the applicable statute of 

limitations or repose.” Burton v Macha, 303 Mich App 750, 754; 846 NW2d 419 (2014). As this 

Court recently explained in McLain v Roman Catholic Diocese of Lansing, ___ Mich App ___, 

___; ___ NW2d ___ (2023) (Docket Nos. 360163, 360173); slip op at 3:

When reviewing a motion under MCR 2.116(C)(7), this Court must accept all wellpleaded factual allegations as true and construe them in favor of the plaintiff, unless 

other evidence contradicts them. If any affidavits, depositions, admissions, or other 

documentary evidence are submitted, the court must consider them to determine 

whether there is a genuine issue of material fact. If no facts are in dispute, and if 

reasonable minds could not differ regarding the legal effect of those facts, the 
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question whether the claim is barred is an issue of law for the court. However, if a 

question of fact exists to the extent that factual development could provide a basis 

for recovery, dismissal is inappropriate. [Quotation marks and citation omitted.]

The parties’ dispute also raises questions of statutory interpretation, which are reviewed de novo. 

Farris v McKaig, 324 Mich App 349, 352-353; 920 NW2d 377 (2018).

III. ANALYSIS

Plaintiff’s argument boils down to a contention that the statute of repose in MCL 600.5839 

is satisfied so long as the plaintiff’s claim accrues within the period of repose. This argument, 

however, is irreconcilable with the plain language of MCL 600.5839. That statute provides in 

relevant part:

(1) A person shall not maintain an action to recover damages for injury to 

property, real or personal, or for bodily injury or wrongful death, arising out of the 

defective or unsafe condition of an improvement to real property, or an 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 the improvement, or against any contractor 

making the improvement, unless the action is commenced within either of the 

following periods:

(a) Six years after the time of occupancy of the completed improvement, 

use, or acceptance of the improvement. [MCL 600.5839(1)(a) (emphasis added).1]

Based on the plain language of MCL 600.5839(1), plaintiff was required to commence its action 

within the applicable statutory period. It is not enough under the statute that plaintiff’s claim 

accrued during the period of repose because the plain language requires that “the action [be] 

commenced” within that time. This is consistent with this Court’s recent explanation that “a statute 

of repose is a deadline by which an action must be commenced. Separate and apart from the 

applicable statute of limitations or any extension of it by the discovery rule, it establishes an outside 

deadline by which an action must be filed.” Compagner v Burch, ___ Mich App ___, ___; ___ 

NW2d ___ (2023) (Docket No. 359699); slip op at 10. This effectively dispenses with plaintiff’s 

argument on appeal, but we will briefly address plaintiff’s remaining argument.

Plaintiff contends that the only way to reach this opinion’s conclusion is to apply MCL 

600.5839 “as a period of limitations” and “ignore the actual period of limitations in section 5805.” 

This assertion is simply untrue. As explained in Compagner, the statute of repose is a condition 

that must be satisfied “[s]eparate and apart from the applicable statute of limitations . . . .” 

Compagner, ___ Mich App at ____; slip op at 10. This is consistent with MCL 600.5805(14). 

MCL 600.5805 provides numerous limitations periods (the parties agree that the three-year period 

of limitation in subsection (2) applies to plaintiff’s claims), and subsection (14) states, “The 

 

1 MCL 600.5839(1)(b) extends the period of repose up to 10 years under certain circumstances not 

applicable to this case.
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periods of limitation under this section are subject to any applicable period of repose established 

in section 5838a, 5838b, or 5839.” Based on this language, for plaintiff’s claim to be timely, it 

must satisfy both the statute of limitations and the “period of repose” in MCL 600.5839. Accord 

Mayor of City of Lansing v Michigan Pub Serv Comm’n, 470 Mich 154, 160; 680 NW2d 840 

(2004), superseded by statute on other grounds in MCL 247.183 (explaining that, when one 

subsection of a statute is “subject to” another subsection, “both subsections are applicable”). It is 

uncontested that plaintiff’s action was filed beyond the applicable period of repose in MCL 

600.5839(1)(a), so the trial court properly granted summary disposition to defendants regardless 

of whether plaintiff filed its action within the applicable statute of limitations.

Plaintiff insists that this conclusion fails to give effect to changes that the Legislature made 

to MCL 600.5805(14) starting in 2011. Prior to 2011, MCL 600.5805(14) stated, “The period of 

limitations for an action against a state licensed architect, professional engineer, land surveyor, or 

contractor based on an improvement to real property shall be as provided in section 5839.” MCL 

600.5805(14) as amended by 2002 PA 715 (emphasis added). After 2011, the Legislature amended 

MCL 600.5805(14) several times so that it now reads, “The periods of limitation under this section 

are subject to any applicable period of repose established in section 5838a, 5838b, or 5839.” MCL 

600.5805(14), as amended by 2018 PA 183 (emphasis added). See also 2011 PA 163; 2012 PA 

582. Plaintiff contends that, by changing the text of MCL 600.5805(14) from stating that the 

statute of limitations for claims like plaintiff’s is “provided in section 5839” to stating that the 

statute of limitations is “subject to” the period of repose in MCL 600.5839, the Legislature 

demonstrated its intent “to preclude section 600.5839 from operating as a statute of limitations.”

While we agree with plaintiff’s bottom-line conclusion that this amendment clarified that 

MCL 600.5839 is not a statute of limitations, plaintiff misunderstands the significance of this 

conclusion. Prior to the 2011 amendments to MCL 600.5805(14), our Supreme Court interpreted 

the interplay between MCL 600.5805(14) and MCL 600.5839 as MCL 600.5839 acting as both a 

statute of limitations and a statute of repose because that was plainly what MCL 600.5805(14) 

stated. See Ostroth v Warren Regency, GP, LLC, 474 Mich 36, 44-45; 709 NW2d 589 (2006), 

superseded by statute in MCL 600.5805. As plaintiff correctly asserts, however, by changing the 

language of MCL 600.5805(14) to say that “[t]he periods of limitations” stated in MCL 600.5805 

are “subject to” the statute of repose in MCL 600.5839, MCL 600.5805(14) now makes clear that 

MCL 600.5839 is strictly a statute of repose. The effect of this, however, is to merely limit the 

potential length of the statute of limitations. Under the old MCL 600.5805(14), a litigant like 

plaintiff could have up to six years after their claim accrued to bring a cause of action. Under the 

current version of MCL 600.5805(14), a litigant like plaintiff must always bring their cause of 

action within three years of when it accrued. Under either version of MCL 600.5805(14), however, 

a litigant like plaintiff was required to satisfy the statute of repose in MCL 600.5839. For the 

reasons already explained, plaintiff failed to satisfy MCL 600.5839(1)(a) because it commenced 

this action after the six-year period of repose expired.2

 

2 Plaintiff makes a number of other arguments on appeal, but only two are worth addressing. First, 

plaintiff points out that our Supreme Court in O’Brien v Hazelet & Erdal, 410 Mich 1, 15 n 18; 

299 NW2d 336 (1980), recognized that applying the statute of repose in MCL 600.5839 to a 
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Affirmed.

/s/ Thomas C. Cameron

/s/ Stephen L. Borrello

/s/ Colleen A. O’Brien

 

plaintiff whose claim did not accrue until shortly before the period of repose expired may raise 

due process concerns. Yet, O’Brien declined to give an “opinion as to the proper resolution of 

such a case,” id., and, regardless, plaintiff does not argue that applying the statute of repose in this 

case—where plaintiff’s claim accrued well over a year before the period of repose expired—raises 

due process concerns.

Second, plaintiff contends that MCL 600.5839 cannot bar plaintiff’s claims because a 

statue of repose cannot extinguish a remedy. In support of this argument, plaintiff relies on another 

footnote from O’Brien in which our Supreme Court quoted a case from the New Jersey Supreme 

Court that stated, “(The statute) does not bar a cause of action; its effect, rather, is to prevent what 

might otherwise be a cause of action, from ever arising.” O’Brien, 410 Mich at 15 n 19, quoting 

Rosenberg v Town of N Bergen, 61 NJ 190, 199; 293 A2d 662 (1972). In context, however, it is 

clear that Rosenberg’s statement as quoted by O’Brien was addressing the application of a statute 

of repose to a cause of action that did not accrue until after the period of repose expired. In contrast, 

at issue in this case is whether a statute of repose may bar an action that accrued before—but was 

not filed until after—the period of repose expired. Our conclusion that, in this situation, the statute 

of repose bars plaintiff’s claim is consistent with O’Brien:

For actions which accrue within six years from occupancy, use, or acceptance of 

the completed improvement, the statute prescribes the time within which such 

actions may be brought and thus acts as a statute of limitations. When more than 

six years from such time have elapsed before an injury is sustained, the statute 

prevents a cause of action from ever accruing. [O’Brien, 410 Mich at 15.]