Asher v. Exxon Co., U.S.A.

• Citation: 200 Mich.App. 635,504 N.W.2d 728
• Decision Date: 19 July 1993
• Docket Number: Docket No. 140366
• Parties: , Prod.Liab.Rep. (CCH) P 13,710 Farmer ASHER and Lucy Marie Asher, his wife, Plaintiffs-Appellants, v. EXXON COMPANY, U.S.A., a Division of Exxon Corporation, a Foreign Corporation, Defendant-Appellee, and Product-Sol, Inc., a Michigan Corporation, U.S. Industrial Lubricants, Inc., a Foreign Corporation, Chemical Solvents Inc., a Foreign Corporation, 3M Company, a Foreign Corporation, Techno Adhesives Company, a Foreign Corporation, and Dubois Chemicals, Inc., Jointly and Severally, Defendants.
• Court: Court of Appeal of Michigan — District of US

Page 728

504 N.W.2d 728

200 Mich.App. 635, Prod.Liab.Rep. (CCH) P 13,710

Farmer ASHER and Lucy Marie Asher, his wife, Plaintiffs-Appellants, v. EXXON COMPANY, U.S.A., a Division of Exxon Corporation, a

Foreign Corporation, Defendant-Appellee,

and

Product-Sol, Inc., a Michigan Corporation, U.S. Industrial

Lubricants, Inc., a Foreign Corporation, Chemical Solvents

Inc., a Foreign Corporation, 3M Company, a Foreign

Corporation, Techno Adhesives Company, a Foreign

Corporation, and Dubois Chemicals, Inc., Jointly and

Severally, Defendants.

Docket No. 140366.

Court of Appeals of Michigan.

Submitted March 10, 1993, at Detroit.

Decided July 19, 1993, at 9:25 a.m.

Released for Publication Sept. 23, 1993.

Mark Granzotto, Detroit and Jerome G. Quinn, Bloomfield Hills, for plaintiffs-appellants.

Dykema Gossett by Joseph C. Basta, Kathleen McCree Lewis, and Darleen Darnall, Detroit, for defendant-appellee.

Before GRIBBS, P.J., and HOLBROOK, and NEFF, JJ.

HOLBROOK, Judge.

In this products liability case, the circuit court granted defendant Exxon Company, U.S.A., summary disposition under MCR 2.116(C)(7). Plaintiffs appeal as of right. We affirm.

Farmer Asher (plaintiff) worked for General Motors Corporation from February 10, 1966, to May 15, 1987. Plaintiff's work involved cleaning glue residue from the walls and floors of spray booths. During the course of plaintiff's employment at General Motors, he was exposed to various industrial adhesives and cleaning solvents manufactured and sold by Exxon Company, U.S.A. (defendant) and other defendants. Plaintiff used one of these products, "Fab cleaner," throughout his tenure at General Motors. Defendant's product, 587 Naphtha, was first sold to General Motors in July of 1985 for use as a component of Fab cleaner.

Plaintiff initially avoided going to a doctor because he did not want to be placed on sick leave and suffer reduced income. Dr. Jerry Walker first treated plaintiff in December of 1979 for chronic rhinitis, anxiety, boils, and breathing difficulty. Walker diagnosed that these conditions were caused by plaintiff's exposure to chemicals at his workplace.

During the 1980s, plaintiff began to experience memory loss, difficulty finding his way around the General Motors plant, and chronic lethargy. Plaintiff failed to heed Walker's advice to find a different job. In May of 1987, Walker declared plaintiff permanently disabled. Plaintiff and his wife filed their complaint on April 18, 1989.

Defendant moved for summary disposition under MCR 2.116(C)(7), arguing that plaintiffs' complaint was not filed within the period of limitation. The other defendants joined in defendant's motion. After plaintiffs had settled with all six other defendants, the circuit court heard oral arguments regarding the motion. Defendant argued that plaintiff knew of his claim for several years by the time he began using Fab cleaner containing 587 Naphtha in July of 1985 because he knew from the onset of his first symptoms that the chemicals were a possible cause of his illness. Defendant argued that plaintiff had three years from the date of his first exposure to its product in July of 1985 to file timely his cause of action. Plaintiff responded that the complaint was filed timely because he was continuously subjected to defendant's tortious conduct through plaintiff's last day of employment with General Motors on May 15, 1987. Alternatively, plaintiff argued that the period of limitation had been tolled because he had been suffering from mental derangement. The circuit court found that plaintiff was not mentally deranged because he was able to work and function. The circuit court then granted defendant summary disposition.

When reviewing a motion for summary disposition under MCR 2.116(C)(7), this Court accepts all well-pleaded allegations as true and construes them most favorably to the plaintiff. Bonner v. Chicago Title Ins. Co., 194 Mich.App. 462, 469, 487 N.W.2d 807 (1992). If the pleadings show that a party is entitled to judgment as a matter of law, or if affidavits or other documentary evidence show that there is no genuine issue of material fact, the trial court must render judgment without delay. MCR 2.116(I)(1); Nationwide Mutual Ins. Co. v. Quality Builders, Inc., 192 Mich.App. 643, 648, 482 N.W.2d 474 (1992). If no facts are in dispute, the court must decide as a matter of law whether the claim is statutorily barred. Harris v. Allen Park, 193 Mich.App. 103, 106, 483 N.W.2d 434 (1992).

It is undisputed that the period of limitation for a products liability action is three years. M.C.L. § 600.5805(9); M.S.A. § 27A.5805(9). The issue ¹ presented in this case is whether the continuing-wrongful-acts doctrine tolls the period of limitation in a products liability action until the time of the most recent exposure to the product.

M.C.L. § 600.5827; M.S.A. § 27A.5827 provides:

Except as otherwise expressly provided, the period of limitations runs from the time the claim accrues....

[T]he claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results.

A cause of action for damages arising out of tortious injury to a person accrues when all the elements of the cause of action have occurred and can be alleged in a proper complaint. Connelly v. Paul Ruddy's Equipment Repair & Service Co., 388 Mich. 146, 150, 200 N.W.2d 70 (1972). Under the discovery rule, an action for products liability accrues when the plaintiff discovers or should have discovered a possible cause of action. Bonney v. Upjohn Co., 129 Mich.App. 18, 35, 342 N.W.2d 551 (1983).

In Defnet v. Detroit, 327 Mich. 254, 258, 41 N.W.2d 539 (1950), our Supreme Court held that continuing wrongful acts occurring within the period of limitation prevent the accrual of an action in trespass. Since then, the continuing-wrongful-acts doctrine has been applied to other claims. See, e.g., Moore v. Pontiac, 143 Mich.App. 610, 614, 372 N.W.2d 627 (1985) (nuisance); Sumner v. Goodyear Tire & Rubber Co., 427 Mich. 505, 510, 398 N.W.2d 368 (1986) (civil rights). Plaintiffs argue that the continuing-wrongful-acts doctrine should apply to products liability actions for personal injury damages.

In Larson v. Johns-Manville Sales Corp., 427 Mich. 301, 304-305, 399 N.W.2d 1 (1986), our Supreme Court held in part that a cause of action for asbestosis accrues in accordance with the discovery rule rather than at the time of the exposure to asbestos or at the time of diagnosable injury. A products liability cause of action accrues at the time a person knows or should have known of the injury and not at the time of exposure to the product or at the time of diagnosable injury. Stinnett v. Tool Chemical Co., Inc., 161 Mich.App. 467, 472-473, 411 N.W.2d 740 (1987), citing Larson. The Court in Stinnett, supra at 473, 411 N.W.2d 740, further held that the plaintiff's claim was barred by the statute of limitations because he failed to file...