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A Best Products Co. v. Hi Temp Products Inc.12/18/2003
FOR PUBLICATION
In each of these consolidated cases, defendant Hi Temp appeals by leave granted the trial court's orders denying its motion for summary disposition. Hi Temp argues that plaintiffs' claims of asbestos-related personal injury are barred by MCL 450.1842a because they were filed beyond the one-year period allowed for the filing of claims after Hi Temp published notice of its dissolution. We agree and reverse.
I. Summary of Facts and Proceedings
Hi Temp sold asbestos products. Many individuals have claimed that their exposure to Hi Temp's products caused asbestos-related diseases. They have sued Hi Temp frequently and continuously since the mid-1980s. In 1992, Hi Temp ceased active business operations. Its sole shareholder resolved on October 8, 1993, that Hi Temp be dissolved and its assets distributed. On October 14, 1993, Hi Temp filed a certificate of dissolution pursuant to § 831(b). The Bureau of Corporations and Securities stamped the certificate filed on October 25, 1993, thereby making the dissolution effective. § 131(3); § 804(7); Freeman v Hi Temp Products, Inc , 229 Mich App 92; 580 NW2d 918 (1998). Hi Temp averred that it made a "complete distribution of its corporate assets" by selling its inventory and equipment, collecting its receivables, paying bills and making provisions for the payment of its outstanding liabilities. It is undisputed that Hi Temp made a final distribution of assets in the amount of $9,571.99. But it is also undisputed that from 1978 through 1985 Citizens Insurance Company provided Hi Temp with products liability insurance coverage, and that the limits of the policies have not been exhausted.
Hi Temp published a notice of dissolution in the Oakland Press on October 25, 1993, July 3, 1996 and October 20, 1998. Hi Temp also gave notice of its dissolution through its counsel directly to plaintiffs' counsel on October 15, 1993 and October 21, 1998. MCL 450.1842a(3) essentially provides that all claims against a dissolved corporation are barred unless "the claimant commences a proceeding to enforce the claim against the dissolved corporation within 1 year after the publication date." Plaintiffs' actions alleging personal injury or death as a consequence of the use of, or exposure to, asbestos in Hi Temp's products were filed after October 21, 1999. In all cases, Hi Temp moved for summary disposition asserting the statutory bar to claims filed more than one year after publication of notice in accordance with § 842a. Plaintiffs argued that they had shown good cause for not presenting their latent claims earlier and that Hi Temp's insurance coverage was an undistributed asset within the meaning of § 851(2), an exception to § 842a.
MCL 450.1851(2) provides: "For good cause shown, and so long as a corporation has not made complete distribution of its assets, the court may permit a creditor who has not delivered his or her claim or commenced a proceeding to enforce his or her claim within the time limits provided in sections 841a and 842a to file the claim or to commence a proceeding within the time as the court directs." Plaintiffs also argued that Hi Temp was estopped from invoking § 842a because Hi Temp had failed to provide for payment of its obligations as required by § 855a. In each of these cases, the trial court rejected Hi Temp's argument and denied summary disposition for the reasons summarized below.
In Docket No. 238102 ( Gilliam ), Wayne County Circuit Court Judge Robert J. Colombo, Jr., first rejected plaintiffs' argument that Hi Temp was estopped by § 855a to assert the bar of § 842a because § 855a specifically provides: "Provision need not be made for any debt, obligation, or liability t
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