 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Pettit v. Duro Supply Co.12/18/2003
UNPUBLISHED
Duro Supply appeals as of right the trial court's denial of its motion for summary disposition. Because MCL 450.1842a is a statute of repose and because plaintiff failed to commence this action within one year from the date Duro Supply published its notice of corporate dissolution, as MCL 450.1842a requires, we reverse the decision of the trial court.
Duro Supply dissolved, distributed its assets, and published notice that all potential debtors and litigants must file their lawsuits within one year or their lawsuits would be barred. More than five years after it published the notice, decedent contracted "asbestos-induced" cancer and died. His estate brought this action against Duro Supply a year later for exposing decedent to asbestos. But MCL 450.1842a does not permit a plaintiff to recover on claims that are filed after the one-year statutory period against dissolved and fully distributed corporations if the claims are contingent. Because this wrongful death claim was contingent on the decedent's unfortunate contraction of cancer and subsequent death, the trial court erred when it failed to dismiss this case against the non-existent corporation.
The applicable statute of repose, MCL 450.1842a(3), states in pertinent part that, the claim . . . of the following claimants is barred unless the claimant commences a proceeding to enforce the claim against the dissolved corporation within 1 year after the publication of the newspaper notice:
(c) A claimant whose claim is contingent or based on an event occurring after the effective date of dissolution.
This statute encompasses more than the statute of limitations for torts, MCL 600.5805, because it bars all contingent claims regardless of their nature or date of discovery. Therefore, any claim that qualifies as a contingent claim under the statute must be brought within the yearlong period or fail. Plaintiff's claim is a contingent claim within the statute's strictures. Our Supreme Court has defined "contingent claim" as "one which does not exist but may possibly hereafter arise, one whose possible existence depends upon an uncertain future event - upon a contingency." National Bank v Voigt Estate , 357 Mich 647, 651; 91 NW2d 504 (1959), quoting In Re Estate of Jeffers , 272 Mich 127, 136; 261 NW 271 (1935).
Plaintiff's claim fits this description. Although plaintiff and the trial court argue and reason respectively that the claim is based on the "event" of being exposed to the injury producing asbestos, and therefore, not contingent, they disregard our Supreme Court's holding in Larson v Johns-Manville Corp, 427 Mich 301, 304-305; 399 NW2d 1 (1986). In that asbestos related action against a viable defendant, the Court held that the cause of action did not accrue at the time of exposure, but at the time of the claimant's discovery. The Court said,
1) the cause of action for asbestosis accrues in accordance with the 'discovery rule,' i.e., from the time the claimant knows or should have known of the disease, rather than at the time of exposure to asbestos or at the time of diagnosable injury; and 2) if a claimant chose not to bring an action for asbestosis, a later action to recover for cancer accrues at the time the claimant knows or should have known of the cancer.
By virtue of the fact that the cause of action does not accrue at exposure, if at all, but upon a later event, "the discovery'' of illness, the claim must necessarily be a contingent one. Here, it depended on the contingency of the decedent's unfortunate disease coming to fruition and death.
This Court in Freeman v Hi Temp Products, 229 Mich App 92, 96; 580 NW2d 918 (1998), s
Page 1 2 Michigan Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|