Order Michigan Supreme Court
Lansing, Michigan
January 30, 2012 Robert P. Young, Jr.,
Chief Justice
143337 Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
MICHAEL MCGEE, Brian K. Zahra,
Plaintiff/Counterdefendant, Justices
v SC: 143337
COA: 296452
CITY OF WARREN, Macomb CC: 2008-002139-NO
Defendant/Counterplaintiff/Cross-
Plaintiff-Appellant,
and
TONY ANTHONY, INC.,
Defendant/Cross-Defendant-
Appellee,
and
ANDREW ECKSTEIN, MAJOR CEMENT
COMPANY, INC., and ANDERSON, ECKSTEIN
& WESTRICK, INC.,
Defendants.
_________________________________________/
On order of the Court, the application for leave to appeal the May 24, 2011
judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(H)(1), in
lieu of granting leave to appeal, we VACATE in part the judgment of the Court of
Appeals and we REMAND this case to the Court of Appeals to apply MCL 600.5807(8)
to the City of Warren’s claims for breach of contract (insofar as they do not seek
indemnity for damages sustained as a result of tortious injury) and, if necessary, for
consideration of the remaining issues raised in the appeal. MCL 600.5839(1) bars any
action against a contractor seeking indemnity for damages resulting from bodily injury
arising out of a defective and unsafe condition of an improvement to real property.
Miller-Davis v Ahrens Construction, Inc, 489 Mich 355 (2011). However, the statute of
repose does not apply to non-indemnity actions for breach of contract.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
January 30, 2012 _________________________________________
h0123 Clerk