Winstrom et al v. C & M Conveyor, Inc.
Filing
45
OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JAMES WINSTROM and
VERONICA WINSTROM,
Plaintiffs,
File No. 1:13-CV-1271
v.
HON. ROBERT HOLMES BELL
C&M CONVEYOR, INC.,
Defendant.
/
OPINION
This matter is before the Court on Defendant C&M Conveyor, Inc.’s motions for
summary judgment against Plaintiffs James and Veronica Winstrom. (ECF Nos. 27, 44.) On
November 21, 2013, Plaintiffs brought suit against Defendant alleging defective product
design, breach of implied warranty, and loss of consortium after Plaintiff James Winstrom
was seriously injured at his employer’s manufacturing facility by a materials transfer car,
which was designed, manufactured, and sold by Defendant. (ECF No. 1.) For the reasons that
follow, Defendants’ motions for summary judgment will be granted.
I. Background
Plaintiff James Winstrom was employed in 2012 at Advance Packaging Corporation,
which is in the business of designing and manufacturing corrugated box packaging. (Compl.
¶ 8, ECF No. 1.) Advance Packaging moved into its current facility on 40th Street, Southeast,
in Grand Rapids, Michigan, in 2006 in part to improve its material handling processes. (Dep.
of Michael Sylvester 9:7-17, ECF No. 27, Ex. A.) In this facility, stacks of sheets are
discharged from the corrugated box processing machines onto the conveyor system, which
transports the materials to various staging areas to await delivery to other machines. (ECF
No. 32, Ex. 4 at 12.)
The conveyor system at the Advance Packaging facility includes automated transfer
cars to transport corrugated material along designated conveyor routes between machinery.
(Compl. ¶ 9, ECF No. 1.) C&M, headquartered in Indiana, manufactured and sold the
conveyor system to Advance Packaging. C&M specially designed the conveyor system to
accommodate the work flow from each piece of Advance Packaging’s manufacturing
equipment. (Dep. of Michael Sylvester 27: 6-12, ECF No. 27, Ex. A; Dep. of Howard
Carlson 12:8–19, ECF No. 34, Ex. 5.) C&M itself manufactures most of the heavy-duty roll
conveyor equipment used in conveyor systems like the one at the Advance Packaging facility.
(Dep. of Howard Carlson 9:14–24, ECF No. 34, Ex. 5.)
C&M also specially modified the transfer cars for Advance Packaging because
Advance Packaging required a wide bed to hold the corrugated materials. (Id. 14:22–25.)
Each transfer car weighs about 12,000 pounds. (Id. 115:8–10.) The automated transfer cars
have a laser scanner which functions like eyes to sense obstacles in the car’s path and stops
the car. (Compl. ¶ 10, ECF No. 1.)
The transfer cars cannot function independently of the conveyor system, as explained
by the transfer car engineer:
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[I]t is not a component. It is a piece of the system. . . [Y]ou know, there’s more
involved than just this car, than just the car itself. It gets its controls from other
parts of our system. That car can be operated as manual, but that is not its
function. The function of that is to transport material back and forth through
a computer system that we can—known as our CIMS system. And that is the
overall controlling—control for this whole plant. It knows when it gets the
material off the corrugator and when it needs to be put on a finishing machine
way on the other side of the building.
(Dep. of Howard Carlson 88: 12–25, ECF No. 27, Ex. B.) The transfer cars themselves are
“trapped” to their track; they cannot be driven around or moved independent of their tracks.
(Dep. of Michael Sylvester 89: 15–19, ECF No. 27, Ex. A.) The cars move by means of a
central control panel and power system. (Dep. of Howard Carlson 90: 3–15, ECF No. 27, Ex.
B.) Even when in manual mode, the cars receive power from an overheard collector bar
system that feeds into the central control panel and a driver operates the system with a
joystick. (Id. 90:9–15.) There is no battery or independent power source for the transfer cars,
which renders them immobile outside of the conveyor system. (Id. 114: 13–25.) The cars are
not available for purchase independent of a conveyor system. (Id. 13:18–25.)
The Computer-Integrated Inventory Management System (“CIMS”) is a computer
program that interfaces with Advance Packaging’s machinery and in-house scheduling
system in order to monitor and provide direction to each individual transfer car in the
conveyor system. (ECF No. 32, Ex. 4 at 10.) The CIMS system sends pick-up and drop-off
messages to a floor panel, which relays the directions to a transfer car through a
radiofrequency modem. (Dep. of Jeff Endris 13:16–14:18, ECF No. 27, Ex. C.)
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Plaintiff James Winstrom alleges that, on August 22, 2012, he was off-loading a stack
of corrugated material from one conveyor to another when he was crushed by a transfer car.
(Compl. ¶ 12-14, ECF No. 1.) Mr. Winstrom further alleges that, because of the absence of
various safety precautions, the automated car did not provide adequate visible and audible
warnings to Mr. Winstrom, nor stop automatically when it sensed his presence. (Compl. ¶ 19,
ECF No. 1.)
On November 21, 2013, Plaintiffs filed a tort action against C&M, alleging defective
product design, breach of implied warranty, and loss of consortium. (ECF No. 1.)
II. Legal Standard
The Federal Rules of Civil Procedure require the Court to grant summary judgment
“if the movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In evaluating a motion for
summary judgment the Court must look beyond the pleadings and assess the proof to
determine whether there is a genuine need for trial. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). The Court “must construe the evidence and draw all
reasonable inferences in favor of the nonmoving party.” Martin v. Cincinnati Gas & Elec.
Co., 561 F.3d 439, 443 (6th Cir. 2009) (citing Jones v. Potter, 488 F.3d 397, 403 (6th Cir.
2007)).
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III. Analysis
A. Choice of Law
The first issue ripe for decision is the appropriate application of state law in this
diversity suit. Indiana and Michigan have inconsistent statutes of repose for actions against
contractors for improvements made to real property. Plaintiffs argue that Indiana’s Statute
of Repose should apply, which bars an action after ten years. Ind. Code § 32-30-1-5.
Defendant moves for summary judgment under the Michigan Statute of Repose, which bars
an action after six years. Mich. Comp. Laws § 600.5839.
This Court, sitting in diversity, applies the choice of law rules of Michigan. Klaxton
v. Senator Elec. Mfg. Co., 313 U.S. 487 (1942); Erie R.R. v. Tompkins, 304 U.S. 64 (1938).
In Sutherland v. Kennington Truck Service, Ltd., the Michigan Supreme Court explained its
choice of law analysis, presuming that Michigan substantive law will apply 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.
562 N.W. 2d 466, 471 (Mich. 1997).
The Michigan choice of law analysis focuses on (1) the interests of Michigan and
Indiana in applying its own product liability law, and (2) Michigan’s interest in applying its
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own law despite the interest of Indiana. See In re Disaster at Detroit Metro. Airport, 750 F.
Supp. 793, 801 (E.D. Mich. 1989). Michigan’s interest in applying its law derives from its
location as the site of injury, Plaintiff’s residence, and the conveyor system installation and
operation. Plaintiffs claim that Indiana has an interest in having its law applied because
Defendant’s principle place of business is in Indiana, and Indiana has interests in “ensuring
predictability of results for its corporate citizens.” (Pls.’ Br. 11, ECF No. 31). Plaintiffs offer
no case law or authority to support their contention that these are recognized interests of
Indiana. Cases addressing the applicability of New Jersey and Minnesota law are irrelevant
and distracting from the proper analysis under Michigan’s choice of law rules. Invocations
of generalized interests in ‘certainty’ and ‘predictable results” “play little if any role in
modern choice of law analysis under Michigan law.” Standard Fire Ins. Co. v. Ford Motor,
Co. 723 F.3d 690, 698–99 (6th Cir. 2013).
Moreover, Indiana itself would apply Michigan law in this case. Indiana historically
employs lex loci delicti as its choice of law principle in adjudicating tort claims, suggesting
that its interest in the outcome of this case does not outweigh Michigan’s interest. See Simon
v. United States, 805 N.E. 2d 798, 802 (Ind. 2004) (citing Hubbard Mfg. Co. v. Greeson, 515
N.E. 2d 1071, 1073 (Ind. 1987)); see also Muncie Power Prod., Inc. v. United Tech. Auto,
Inc., 328 F.3d 870, 878 (6th Cir. 2003). The Court finds that Michigan’s interest in applying
its law outweighs Indiana’s interest. Cf. Pina v. Chrysler Group, L.L.C., No. 14-10716 2014
WL 4112918, at *2 (E.D. Mich. Aug. 19, 2014) (citing Michigan cases in which the court
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found greater interests in applying the law of the place of injury and plaintiff’s residence,
rather than the law of the place of defendant’s headquarters).
Finally, Plaintiffs plead their causes of action expressly under Michigan statutes and
have filed numerous motions assuming the applicability of Michigan law. Their attempts to
invoke Indiana law now are belated and disingenuous. For these reasons, Michigan law will
apply to Plaintiffs’ tort claims.
B. Michigan Statute of Repose
The second issue ripe for decision is whether Michigan’s contractor statute of repose
bars Plaintiffs’ action. The statute provides,
(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.
Mich. Comp. Laws § 600.5839.
There are no genuine issues of material fact concerning the nature and characteristics
of the conveyor system. The parties contest whether the facts support a determination that
the transfer cars and conveyor system constitute an improvement to real property. The
conclusion that the conveyor is an improvement is a determination as a matter of law. Adair
v. Koppers Co., Inc., 741 F.2d 111, 114 (6th Cir. 1984).
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The gist of Defendant’s argument is that the transfer car at issue is just a component
of a massive material handling system, and that system constitutes an improvement to
Advance Packaging’s manufacturing facility. Defendant installed the system on or by January
2007. Plaintiff filed suit on November 21, 2013. Thus, more than six years have passed since
the improvement was made and Section 600.5839 bars the action.
In response, Plaintiffs argue that the Michigan statute of repose is not applicable
because the C&M is not a contractor and the transfer cars are not an improvement to real
property. Plaintiffs contend that this is a product liability claim because the negligence relates
to the design of the transfer cars, not to the manner of construction or workmanship of the
cars or the system.
1. Was C&M a contractor for purposes of Michigan’s statute of repose?
Plaintiffs argue that the Michigan statute of repose is inapplicable because C&M does
not qualify as a contractor that made improvements to real property. Plaintiffs place great
weight on the fact that C&M was not the sole contractor providing improvements to the
Advance Packaging facility. Defendant cannot claim it made an improvement, say Plaintiffs,
if the transfer car would not be operational absent the work done by other contractors.
Plaintiffs point out that another technology corporation designed the CIMS software and
provided its instruction manual (ECF No. 34, Ex. 12), and that Advance Packaging itself
provided conveyor equipment from its old facility (ECF No. 33, Ex. 4b) and the new beams
for the transfer cars to ride on (ECF No. 32, Ex. 4). This argument is factually unsupported
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because C&M provided the computer servers configured with CIMS (ECF No. 33, Ex. 4b
at 25), and re-installed and reconfigured all the reused equipment (ECF No. 33, Ex. 4b at
38–43). C&M designed, manufactured, and installed the majority of the conveyor system
components. Moreover, many improvements to real property are executed by a collection of
general and sub-contractors; contractors do not lose their status as contractors for that reason.
Plaintiffs emphasize that C&M is not a state licensed architect or professional
engineer under Section 600.5839(1). Professional licensing is irrelevant. Matthews v. Beloit
Corp., 807 F. Supp. 1289, 1292 (W.D. Mich. 1992) (“The statute does not require that a
contractor be licensed.”). The statute provides coverage for “any contractor making the
improvement,” defining a contractor as “an individual, corporation, partnership, or other
business entity which makes an improvement to real land.” Mich. Comp. Laws
§§ 600.5839(1) and (4). The statute does not define a contractor as narrowly as Plaintiffs
suggest. See Oakwood Hosp. & Med. Ctr. v. Goodwin Elec., 183 F. Supp. 2d 936, 940 (E.D.
Mich. 2012). C&M qualifies as a contractor under the statute.
2. Was the conveyor system an improvement to real property?
Michigan courts have adopted the “common sense” approach of the U.S. Court of
Appeals for the Sixth Circuit in determining what constitutes an improvement under the
contractor statute of repose. Adair, 741 F.2d at 113; Caron v. Cranbrook Ed. Cmty., 828
N.W. 2d 99, 103-04 (Mich. App. 2012); Dominguez v. Lanham Mach. Co., 122 F. Supp. 2d
852 (W.D. Mich. 2000).
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In Adair, the Sixth Circuit defined an improvement as “[a] permanent addition to or
betterment of real property that enhances its capital value and that involves the expenditure
of labor or money and is designed to make the property more useful or valuable as
distinguished from ordinary repairs.” 741 F.2d at 114. The Court considered four factors in
its analysis: (1) “whether a modification adds to the value of the property for the purposes
of its intended use;” (2) “the nature of the improvement;” (3) “its relationship to the land and
its occupants;” and (4) “its permanence.” Id.
i. Nature of the improvement
Plaintiffs assert that the injury did not arise out of the defective or unsafe condition
of an improvement to real property, but to the faulty design of a product, namely the transfer
cars. Plaintiffs claim that the transfer cars should have included warning mechanisms such
as strobe lights or louder beepers.
Plaintiffs’ theory of product liability does not entirely correlate with Plaintiffs’ theory
of injury. Plaintiffs argue that C&M produced a poor design for the conveyor system because
there was a gap between the transfer car and the adjacent conveyor such that it creates a
“pinch point.” (Pls.’ Br. 2, 7 ECF No. 31.) Plaintiff was injured when he inadvertently
stepped into that pinch point and the passing transfer car crushed his legs. (Id.) This theory
of injury depends on a faulty construction design; that is, C&M designed and engineered a
system in which a person could be injured between the conveyor system rolls and the transfer
car. The faulty design of the transfer cars cannot be analyzed independently from the design
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of the conveyor system because the injury occurred when the transfer car operated within the
conveyor system.
The transfer cars are an integral component of the conveyor system, which itself is an
improvement to real property. The Sixth Circuit addressed a nearly identical factual scenario
in Adair, where the plaintiff was injured when his arm become trapped between a pulley and
a belt in a conveyor system used to transfer coal from railroad tracks to coke ovens. 741 F.2d
at 114. The plaintiff’s arguments focused primarily on the individual components of the
conveyor system, which were in the nature of equipment rather than improvements. Id. at
114–15. The court disagreed with the plaintiff’s artificial distinction between the parts and
the whole because of the the ‘integral’ role of the conveyor within the coal handling system:
The issue is whether a component of a system which is definitely an
improvement to real property is an improvement to real property itself.
However, to artificially extract each component from an improvement to real
property and view it in isolation would be an unrealistic and impractical
method of determining what is an improvement to real property. Frequently,
as in this case, an improvement to real property is going to consist of a
complex system of components.
Id. at 115 (quoting Mullis v. Southern Co. Serv., Inc., 296 S.E. 2d 579, 584 (Ga. 1982)).
Here, the transfer cars are similar to equipment but they are inseparable from the entire
conveyor system. The cars are not sold independently and cannot function independently of
the rest of the system. Plaintiffs contend that the transfer car is not integral to the material
handling system because the car is not included in every system setup C&M designs.
However, C&M specially designed both the system and the cars to fit Advance Packaging’s
needs.
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Plaintiffs attempt to separate the car from the system because the faulty design of the
transfer car, which occurred in Indiana, arose prior to the installation of the system in
Michigan. (Pls.’ Br. 12–13, ECF No. 31.) But the transfer cars were designed specifically for
the particular conveyor system installed at Advance Packaging. Plaintiffs cannot separate the
design of the cars from the conveyor system itself because C&M designed and constructed
the cars to work in tandem with the system. As the Michigan Court of Appeals explained in
Abbott v. John E. Green, Co., the purpose of the statute of repose is to protect contractors
from open-ended liability for defects in workmanship. 592 N.W. 2d 96, 100 (Mich. Ct. App.
1998). “The term “workmanship” encompasses not only the quality of the finished product,
but the manner of construction as determined by the ‘art, skill, or technique of [the]
workman.” Id. (quoting The American Heritage Dictionary: Second College Edition 1391
(1982)). Therefore, the Statute of Repose protects contractors not only from claims arising
out of the finished result, but from the design of the finished result. Id. at 100–01 (rejecting
plaintiff’s attempts to separate the construction of the improvement from the improvement
itself.) Thus, the cars should not be analyzed separately from the system.
As to the system, C&M designed the conveyor system simultaneously while Advance
Packaging designed their new facility. Advance Packaging depended on C&M to provide
direction to automate the flow of materials through the facility and to advise where to install
pieces of equipment. (Dep. of Michael Sylvester 25: 13–21, ECF No. 31, Ex. 3.) The transfer
car lines and conveyors were installed during the construction project. See Caron, 828 N.W.
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2d at 104 (finding that portable room partitions constituted an improvement where the
partitions were part of the original design of an art classroom addition and the partitions were
installed during construction). The structure of the Advance Packaging facility, such as
poured concrete, was built literally around the conveyor system.
ii. Value added
The transfer cars and conveyor system represent a significant monetary investment
in—and add value to—Advance Packaging’s real property. In 2006, Advance Packaging
purchased land and constructed its new 40,000 square foot facility for approximately $14
million. Equipment purchases, including machines used in the manufacture of corrugated
board and boxes, totaled approximately $26.8 million. (Aff. of Daniel Boucher ¶ 5, ECF No.
34, Ex. 9.) The design and installation of the C&M conveyor system cost $3.4 million. The
equipment itself accounted for approximately $2.39 million, and the installation for $.72
million. (ECF No. 33, Ex. 4b at 28). The conveyor system enhances the value of the Advance
Packaging facility. See Oakwood Hosp. & Med. Ctr., 183 F. Supp. 2d at 940–41 (purchase
and installation of television sets in hospital rooms for $100,000 added to capital value of
hospital facility); Caron, 828 N.W. 2d at 105 (inferring that portable room partitions
enhanced the capital value of an art classroom addition).
In Adair, the defendants argued that the conveyor did not add value to the property
because the conveyor could be removed without loss of value. 741 F.2d at 115. The Court
rejected that argument, stating that “[t]he test for an improvement is not whether an addition
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can be removed without damage to the land, but if it adds to the value of the realty, for the
purposes for which it was intended to be used.” Id. (quotation marks and citations omitted).
The Adair Court’s findings are equally applicable here: “The coal handling system, which
transports raw material to processing facilities, is essential to the operation of the factory as
designed and enhances the utility of the property. . . . [T]he material handling system
enhances the utility of the property and adds to its value as used by linking the various
facilities.” Id. Here, the conveyor system enhances the utility and productivity of the
corrugated materials processing by linking various machines and expediting the processing
times. See Matthews v. Beloit Corp., 807 F. Supp. 1289, 1292 (W.D. Mich. 1992); Phillips
v. Langston Corp., 59 F. Supp. 2d 696, 703 (E.D. Mich. 1999).
iii. Relationship to land and occupants
The entire conveyor system, including the conveyor surface and computer programs,
occupies about twenty percent of Advance Packaging’s 40,000 square foot facility. (Dep. of
Michael Sylvester, 18:14–19:14, ECF no. 27, Ex. A.) The iron guide rails for the car are
installed directly into the floor of the facility and concrete was poured flush around them.
The guide rails are necessary for the operation of the car because they prevent the cars from
traveling off their designated paths. The CIMS computer system interfaces with Advance
Packaging’s scheduling system to direct the cars across the facility, so as to control
machinery input and output. The Court in Adair found the entire conveyor system essential
to the operation of the company, as is the case here. The conveyor system is connected to the
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land and is integral to the daily functioning of the facility. See Phillips, 59 F. Supp. 2d at 703;
Dominguez, 122 F. Supp. 2d at 856.
Advance Packaging does not consider the conveyor system an improvement to its
property, but personal property. (Aff. of Daniel Boucher ¶¶ 7, 10 ECF No. 34, Ex. 9.) On
appraisals, the building is listed separately from the equipment, including C&M equipment.
(Aff. of Daniel Boucher ¶ 8, ECF No. 34, Ex. 9.) All C&M equipment, including the transfer
cars, are listed on corporate property tax returns as personal property that depreciates over
its assigned life. The personal property tax designation includes fixtures and other equipment
that constitute improvements, such as the machinery that cuts the corrugated cardboard. Such
a designation is irrelevant for the purposes of the statute of repose. Matthews, 807 F. Supp.
at 1293 (“This is not a question of what is subject to real or personal property taxes.”). See
Phillips, 59 F. Supp. 2d at 704 (finding that a machine used to create boxes from cardboard
constituted an improvement); see also Adair, 741 F.2d at 114 (statements in affidavits that
the conveyor is not an improvement to real property did not create an issue of fact because
the determination of whether the conveyor is an improvement is a matter of law).
iv. Permanence
As to the last factor, Plaintiffs contend that the transfer cars are independent and lack
permanence in the conveyor system or the facility. The transfer cars have a separate
operator’s manual, distinct from the conveyor system. Moreover, although the cars are heavy,
they could be moved to another facility. If Advance Packaging were to move to a new
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facility, the company might decide to remove and re-install the equipment, based on a costbenefit analysis. (Aff. of Daniel Boucher ¶ 9, ECF No. 34, Ex. 9.)
The fact that the conveyor system could be moved is not dispositive. The Adair court
cautioned against equating “permanent” with “eternal,” and found that a conveyor system,
bolted into concrete and including a walkway, supported the permanence factor. Adair, 741
F.2d at 115–16. The conveyor system in Adair could be removed, but the Court nonetheless
found it permanent. See also Dominguez, 122 F. Supp. 2d at 856 (industrial baking oven
custom designed to fit the space available supported permanence factor).
Here, the conveyor system is physically annexed to the Advance Packaging structure
by guide rails installed directly into the concrete flooring. The conveyor system, including
the transfer cars, could be moved to another facility, but a move would require use of riggers
capable of moving heavy equipment and machinery. (Dep. of Michael Sylvester 78:17–79:1,
ECF No. 27, Ex. A.) Furthermore, there is no evidence that Advance Packaging intends to
move its facility or move the conveyor system. Phillips, 59 F. Supp. 2d at 704 (The term
“permanent” means that “the improvement is to function for a long, indefinite period without
regard to unforeseeable conditions.”). Cf. Caron, 828 N.W. 2d at 104 (finding portable room
partitions in an art classroom were permanent despite their mobility because the teachers
intended to use the walls consistently in the future). The conveyor system is a permanent
improvement to the Advance Packaging facility.
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Therefore, all four factors of the Adair analysis support a finding that the conveyor
system constitutes an improvement. Because more than six years have passed since the
“completed improvement, use, or acceptance of the improvement,” Plaintiffs’ claims are
barred by the statute of repose. Mich. Comp. Laws § 600.5839(1).
C. Product Liability Claims
Defendants have moved for summary judgment on the merits of Plaintiffs’ product
liability claims (ECF No. 44.) Because Plaintiffs’ claims are barred by the Michigan statute
of repose, Defendant’s motion is moot.
IV. Conclusion
For the reasons set forth above, Plaintiffs’ claims are barred by the Michigan statute
of repose. Judgment will be entered in favor of Defendant. The Court will issue an Order
consistent with this Opinion.
Dated: October 17, 2014
/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE
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