Sign In
Events
Newsletters
Search

Close

Close Search

Cancel

SEARCH
MY LAW.COMNEW

Roskam Baking Co., Inc. v. Lanham Machinery Co., Inc.

Michigan's statute of repose in favor of contractors was not affirmative defense subject to waiver, but rather served to extinguish tort claim arising from bakery fire and thus could be raised by contractor more than two years after plaintiff filed suit.

X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

The full case caption appears at the end of this opinion.

BOGGS, Circuit Judge. Roskam Baking Company (“Roskam”) and Maximo Dominguez appeal the district court’s grant of motions to dismiss Roskam’s and Dominguez’s diversity suits against Lanham Machinery Company, Inc., APV Consolidated, Inc., and APV Baker Company, Inc. (“APV”) seeking damages resulting from a fire allegedly caused by APV’s negligent installation of a baking oven. More than two years after Roskam and Dominguez separately filed suit, and after extensive motion practice and discovery, APV filed a motion in each case seeking dismissal on the basis that the action was barred by MCL � 600.5839(1), the Michigan statute of repose applicable to architects, engineers, and contractors who undertake improvements to real property (the “SOR”).(1) The district judge initially denied APV’s motion in both cases, holding that the statute was an affirmative defense that was waived when it was not raised in APV’s first responsive pleading. However, on reconsideration, the judge reversed himself in both cases and held that the defense offered by the statute was not waived because the statute serves to extinguish a cause of action before it accrues. Therefore, the court held that if the statute applied to their cases, Roskam and Dominguez had failed to state a claim upon which relief can be granted, and failure to state a claim is a defense that is not waived by failure to assert it in the party’s responsive pleading. With respect to Roskam, the court held that the issue of whether the statute applied to the circumstances at bar was decided on the merits in the affirmative in a parallel state court action involving the same parties and occurrence and that the state court’s conclusion was binding on the court by issue preclusion. Accordingly, the district court granted APV’s motion to dismiss.

Trending Stories

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

LEARN MORE

More From ALM

Premium Subscription
With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now
Team Accounts
Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now
Bundle Subscriptions
Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now
Go to CLE Center
Middle East Legal Awards 2024
April 25, 2024
Dubai

Law firms & in-house legal departments with a presence in the middle east celebrate outstanding achievement within the profession.


Learn More
BenefitsPRO Broker Expo 2024
April 29, 2024 - May 01, 2024
Aurora, CO

The premier educational and networking event for employee benefits brokers and agents.


Learn More
Pennsylvania Legal Awards 2024
May 15, 2024
Philadelphia, PA

The Legal Intelligencer honors lawyers leaving a mark on the legal community in Pennsylvania and Delaware.


Learn More
Go to Events Go to Webcasts
Legal Writing & Research Professional

Atlanta s John Marshall Law School is seeking to hire one or more full-time, visiting Legal WritingInstructors to teach Legal Research, Anal...


Apply Now ›
Labor & Employment Associate CT

Shipman is seeking an associate to join our Labor & Employment practice in our Hartford, New Haven, or Stamford office. Candidates shou...


Apply Now ›
Associate General Counsel

Evergreen Trading is a media investment firm headquartered in NYC. We help brands achieve their goals by leveraging their unwanted assets to...


Apply Now ›
Go to Lawjobs
MELICK & PORTER, LLP
04/15/2024
Connecticut Law Tribune

MELICK & PORTER, LLP PROMOTES CONNECTICUT PARTNERS HOLLY ROGERS, STEVEN BANKS, and ALEXANDER AHRENS


View Announcement ›
Apruzzese, McDermott, Mastro & Murphy, P.C.
04/11/2024
New Jersey Law Journal

Professional Announcement


View Announcement ›
Robbins Alloy Belinfante Littlefield
04/08/2024
Daily Report

Daily Report 1/2 Page Professional Announcement 60 Days


View Announcement ›
Go to Professional Announcements