Ohio Farmers Insurance Company v. Shamie

On order of the Court, the application for leave to appeal from the April 30, 1999 decision of the Court of Appeals is considered and, pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, we VACATE in part the judgment of the Court of Appeals and we REMAND the case for reconsideration by the Court of Appeals as directed by this order. The retroactivity analysis in the Court of Appeals opinion assumed that the plaintiff's cause of action accrued before MCL 600.2962; MSA 27A.2962 took effect. However, the Court of Appeals applied MCL 600.5827; MSA 27A.5827 without considering the effect of MCL 600.5838; MSA 27A.5838 or Connelly v Paul Ruddy's Equipment Repair & Service Co, 388 Mich 146 (1972). Under section 5827, accrual requires that the plaintiff have suffered damages. Connelly, supra. Consideration of the retroactivity question was unnecessary if the plaintiff's cause of action did not actually accrue until after the new statute took effect. On remand, the Court of Appeals must first reconsider the accrual question, and then proceed as the answer to that question indicates. We do not retain jurisdiction.