Gary Henry v. Dow Chemical Company ( 2018 )

Order Michigan Supreme Court
Lansing, Michigan
January 24, 2018 Stephen J. Markman,
Chief Justice
156128 Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Kurtis T. Wilder
GARY HENRY and KATHY HENRY, Elizabeth T. Clement,
Plaintiffs-Appellees, Justices
v SC: 156128
COA: 328716
Saginaw CC: 03-047775-NZ
DOW CHEMICAL COMPANY,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the June 1, 2017
judgment of the Court of Appeals is considered and, pursuant to MCR 7.305(H)(1), in
lieu of granting leave to appeal, we REVERSE Part II of the controlling opinion of the
Court of Appeals for the reasons stated in the Court of Appeals dissenting opinion, and
we REMAND this case to the Saginaw Circuit Court for further proceedings in
accordance with the procedures outlined in that dissenting opinion. This action is based
on the plaintiffs’ claim that the defendant is responsible for the presence of dioxin on
their real properties. MCL 600.5827 provides that the three-year limitations period for
property damage claims arising out of negligence or nuisance, MCL 600.5805(10),
begins to run from “the time the claim accrues,” and “the claim accrues at the time the
wrong upon which the claim is based was done regardless of the time when damage
results.” See Trentadue v Buckler Automatic Lawn Sprinkler Co, 479 Mich. 378, 387
(2007). The wrong is done when the plaintiff is harmed. Id. at 388. As explained by
dissenting Judge Gadola, the claimed harm to the plaintiffs in this case is the presence of
dioxin in the soil of their properties. The period of limitations began to run from the date
that this “wrong” occurred. The circuit court must therefore determine the accrual date of
the plaintiffs’ claims based on the occurrence of the wrong — the presence of dioxin on
the plaintiffs’ properties. In all other respects, leave to appeal is DENIED, because we
are not persuaded that the remaining question presented should now be reviewed by this
Court.
We do not retain jurisdiction.
I, Larry S. Royster, 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 24, 2018
t0117
Clerk