Detroit Bd. of Educ. v. Celotex Corp.

• Decision Date: 17 November 1992
• Docket Number: Docket No. 123187
• Citation: 196 Mich.App. 694,493 N.W.2d 513
• Parties: , 79 Ed. Law Rep. 1012 DETROIT BOARD OF EDUCATION, Plaintiff-Appellee, Cross-Appellant, v. CELOTEX CORPORATION, Armstrong World Industries, Asbestospray Applicators, Fibreboard Corporation, Flintkote Company, National Gypsum Company, Owens-Corning Fiberglas, and United States Mineral Products Company, Defendants-Appellees, Cross-Appellants, and GAF Corporation, Raymark Industries Incorporated, and Gage Company, Defendants-Appellants, Cross-Appellees, and AC & S Incorporated, Atlas Turner Incorporated, Eagle Picher Industries, Garlock Incorporated, Georgia Pacific Corporation, Keene Corporation, Mechanical Insulation, Owens Illinois, United States Gypsum Company, and T & N PLC, Defendants-Appellees, and W.R. Grace & Company, Defendant-Appellant, and Basic Incorporated, Defendant, Cross-Appellant, and Alexander Stafford, Brown Insulation Company, Certainteed Corporation, Combustion Engineering, Coon Deviser Company, H.K. Porter Incorporated, Hollinger & Company Incorporated, Kentile Floors Incorporated, PfizerGenetics Incorporated, Standard Asbestos Manufacturing, and William Reichenbach Company, Defendants, and Product Liability Advisor, Amicus Curiae (On Remand).
• Court: Court of Appeal of Michigan — District of US

Page 513

493 N.W.2d 513

196 Mich.App. 694, 79 Ed. Law Rep. 1012

DETROIT BOARD OF EDUCATION, Plaintiff-Appellee Cross-Appellant, v. CELOTEX CORPORATION, Armstrong World Industries Asbestospray Applicators, Fibreboard Corporation, Flintkote Company, National Gypsum Company, Owens-Corning Fiberglas and United States Mineral Products Company Defendants-Appellees, Cross-Appellants, and GAF Corporation, Raymark Industries Incorporated, and Gage Company, Defendants-Appellants, Cross-Appellees, and AC & S Incorporated, Atlas Turner Incorporated, Eagle Picher Industries, Garlock Incorporated, Georgia Pacific Corporation, Keene Corporation, Mechanical Insulation, Owens Illinois, United States Gypsum Company, and T & N PLC, Defendants-Appellees, and W.R. Grace & Company, Defendant-Appellant, and Basic Incorporated, Defendant, Cross-Appellant, and Alexander Stafford, Brown Insulation Company, Certainteed Corporation, Combustion Engineering, Coon Deviser Company, H.K. Porter Incorporated, Hollinger & Company Incorporated, Kentile Floors Incorporated, PfizerGenetics Incorporated, Standard Asbestos Manufacturing, and William Reichenbach Company, Defendants, and Product Liability Advisor, Amicus Curiae (On Remand).

Docket No. 123187.

Court of Appeals of Michigan.

Submitted Aug. 11, 1992, at Lansing.

Decided Nov. 17, 1992, at 9:00 a.m.

Released for Publication Jan. 19, 1993.

Honigman Miller Schwartz & Cohn by Jay E. Brant, William F. Frey, and Lee W. Books, Detroit, for GAF Corp.

Dykema Gossett by Ted T. Amsden, Debra M. McCulloch, and Ronald J. Torbert, Detroit, for U.S. Gypsum Co.

Fitzgerald, Cox & Hodgman by William H. Horton and Tammy J. Reiss, Troy, and Hoyle, Morris & Kerr by Arlene Fickler and Toni Y. Proffitt, Philadelphia, Pa., for Nat. Gypsum Co.,

Sommers, Schwartz, Silver & Schwartz by Leonard B. Schwartz, Southfield, for Asbestospray Corp.

Collins, Einhorn & Farrell, P.C. by Noreen L. Slank, Southfield, for Celotex Corp.

Martin, Bacon & Martin, P.C. by John W. Crimando, Mt. Clemens, for Mechnical Insulation Services.

Meyer, Kirk, Snyder & Safford by Patrick K. Rode, Bloomfield Hills, for Georgia Pacific Corp.

Butzel Long Gust Klein & Van Zile by Daniel P. Malone and Lynn A. Sheehy, Detroit, for Eagle-Picher Industries, Inc.

Dickinson, Wright, Moon, Van Dusen & Freeman by Robert S. Krause and Robert Powell, Detroit, for W.R. Grace & Co.

Kohl, Secrest, Wardle, Lynch, Clark & Hampton by Daniel P. King, Farmington Hills, for Armstrong World Industries, Inc.

Harvey, Kruse, Westen & Milan, P.C. by Bradley S. Mitseff and Terry J. Pawlowski, Detroit, for U.S. Mineral Products Co. and Keene Corp.

Clark, Klein & Beaumont by Jonathan T. Walton, Jr., Detroit, for AC & S, Inc.

Freeman McNeill by S. David McNeill, Troy, for Kentile Corp.

Cholette, Perkins & Buchanan by Robert J. Riley, Grand Rapids, for Basic, Inc.

Hill Lewis by Bradley A. Carl, Detroit, for Pfizer, Inc.

Kitch, Saurbier, Drutchas, Wagner & Kenney, P.C. by Susan Healy Zitterman and Henry L. Gordon, Detroit, for Owens-Corning Fiberglas Corp.

Garan, Lucow, Miller, Seward, Cooper & Becker, P.C. by James J. Hayes, Jr., and Daniel S. Saylor, Detroit, for Fibreboard Corp.

Warner, Norcross & Judd by William K. Holmes and Douglas A. Dozeman, Grand Rapids, for Owens-Illinois, Inc., and T & N PLC.

Plunkett & Cooney, P.C. by Ernest R. Bazzana, Thomas S. McLeod, Richard F. Brennan, Donald H. Dawson, Jr., and Tracey L. Merithew, Detroit, for Pittsburgh Corning Corp., Cleveland Builders Supply Co., and Flintkote Co.

Taylor, Braun, Manganello & Cardelli by Laura D. Mason, Detroit, for Garlock, Inc.

Poling, McGaw & Poling, P.C. by Richard B. Poling, Jr., Suzanne C. Stanczyk, and Susan L. Raleigh, Troy, for amicus curiae Products Liability Advisory Council.

Simon, Deitch, Friedman, Siefman & Green, P.C. by Philip J. Goodman and Steven G. Silverman, Southfield, for amicus curiae Detroit Bd. of Educ. et al.

Before MacKENZIE, P.J., and WAHLS and SULLIVAN, JJ.

ON REMAND

WAHLS, Judge.

In this interlocutory appeal from the Wayne Circuit Court, the plaintiff class consists of several hundred public school districts and private schools in Michigan. Defendants are manufacturers, distributors, or installers of a variety of asbestos products that were used in plaintiffs' school buildings. Plaintiffs have brought this action against defendants, alleging numerous theories of liability. Defendants moved for summary disposition against one of the representative plaintiffs, the Board of Education for the School District of Detroit ("the board"), pursuant to MCR 2.116(C)(7), (8), and (10). The trial court granted defendants' motion in part and denied it in part. Several defendants sought leave to appeal the trial court's subsequent order that granted in part and denied in part the parties' motions for reconsideration or clarification. This Court denied leave, but the case was subsequently remanded to us by our Supreme Court "for consideration as on leave granted." 433 Mich. 903, 447 N.W.2d 749 (1989). Numerous cross appeals have been filed. The facts before us center on the board's claims, and issues on appeal have been limited by stipulation to the board's (1) nuisance claim, (2) concert of action claim, and (3) alternative liability claim, and the defendants' statute of limitations defense. We affirm in part, reverse in part, and remand for further proceedings.

I

Some background facts are neatly set forth in the trial court's opinion:

Between 1973 and 1978, the United States Environmental Protection Agency (EPA) successively barred in buildings the use of various forms of asbestos-containing insulating and construction material. In 1978 and 1979, the EPA developed a school asbestos program to inform school officials of the potential health hazards of exposure to friable asbestos products. ¹ In conjunction with this program, booklets were published by the EPA explaining the nature of the problem, how school officials could identify friable asbestos materials in their buildings, and various forms of corrective action that could be taken. School officials were also requested to complete a survey which would assist the EPA in determining contamination levels and the extent of the problem across the country.

* * * * * *

[N]otice of the possible hazards of air borne [sic] asbestos fibers had reached plaintiff [the board] at least by February, 1979. At this time, plaintiff resolved to conduct a survey of its buildings to determine if any had asbestos products. Indeed by June 21, 1979, plaintiff was sent the EPA publications on the subject. In July, 1979, a survey of possible problem areas in 48 buildings was conducted. Asbestos containing materials were found in 19 of the buildings. In the letter to Detroit's Department of Health, dated August 20, 1979, from the State Bureau of Environmental and Occupational Health accompanying the report of the laboratory tests for the survey, plaintiff was advised to inspect those areas where asbestos had been found to determine whether there was any reason to believe that it might become airborne. The letter also indicated that the Bureau could test for the presence of airborne asbestos fibers. However, the letter closed by indicating that there was no recommendation for removal of the material assuming it could be enclosed or covered up to eliminate the hazard. By early September, 1979, plaintiff was in possession of the survey results.

On September 26, 1979, plaintiff made inquiries of Armstrong Cork [Company], a manufacturer of ceiling tile whose products had been used in one of plaintiff's buildings, to determine whether its products contained asbestos. Significantly, the letter indicates that plaintiff was aware of the EPA's recommendation that friable asbestos materials be removed.

As a result of an inspection done by plaintiff of the buildings found in the July, 1979 survey to have asbestos containing material in 19 buildings, it was recommended by one of plaintiff's employees, in a Progress Report dated October 5, 1979, that the asbestos material be removed. Less drastic measures were recommended to treat the problem in the other buildings. By October 11, 1979, plaintiff began to explore how best to implement these recommendations.

By November, 1979, plaintiff had done a cost estimate of carrying out the above noted recommendations. On November 19, 1979, it submitted to the EPA a funding proposal for the cost of asbestos abatement. The total cost was estimated at $490,000. Although plaintiff never received the funding that it had requested, the recommendations were ultimately carried out.

On January 17, 1983, a class action suit by schools across the country was filed in the United States District Court for the Eastern District of Pennsylvania. The board and the other plaintiffs in this case opted out of the federal action and filed their own class action in the Wayne Circuit Court on October 12, 1984. Plaintiffs' complaint alleged theories of strict liability, intentional tort, negligence and wanton misconduct, breach of express and implied warranties, fraud and misrepresentation, civil conspiracy, nuisance, concert of action, alternative liability, and restitution. Plaintiffs generally alleged that the presence of asbestos constituted a potential health hazard and that they had and would continue to expend money for asbestos detection and abatement. The trial court granted summary disposition to defendants of all plaintiffs' claims except those for nuisance and the counts grounded upon nuisance as a substantive tort, i.e., concert of action and alternative liability. Summary disposition was also denied with regard to plaintiffs' claim for restitution.

II

Before discussing the four issues stipulated for review, we are obliged to address our Supreme Court's recent opinion in Neibarger v. Universal Cooperatives, Inc., 439 Mich. 512, 486 N.W.2d 612 (1992). ² According to Neibarger, where a commercial plaint...