Michigan Millers Mut. Ins. Co. v. Bronson Plating Co.

• Decision Date: 21 December 1992
• Docket Number: Docket No. 123554
• Citation: 197 Mich.App. 482,496 N.W.2d 373
• Court: Court of Appeal of Michigan — District of US
• Parties: MICHIGAN MILLERS MUTUAL INSURANCE COMPANY, Plaintiff-Counter-Defendant, Appellee and Cross-Appellant, v. BRONSON PLATING COMPANY, Defendant-Counter-Plaintiff, Appellant and Cross-Appellee, v. FEDERAL INSURANCE COMPANY, one of the Chubb Group of Insurance Companies, Auto-Owners Insurance Company, Commercial Union Insurance Company, Great Southwest Fire Insurance Company (now known as Vanliner Insurance Company), Hartford Accident & Indemnity Company, Indiana Insurance Company, Indiana Lumbermens Mutual Insurance Company, Liberty Mutual Insurance Company, and Hamilton Mutual Insurance Company, Counter-Defendants-Appellees, and Insurance Environmental Litigation Association, Amicus Curiae.

Page 373

496 N.W.2d 373

197 Mich.App. 482

MICHIGAN MILLERS MUTUAL INSURANCE COMPANY, Plaintiff-Counter-Defendant, Appellee and Cross-Appellant, v. BRONSON PLATING COMPANY, Defendant-Counter-Plaintiff, Appellant and Cross-Appellee, v. FEDERAL INSURANCE COMPANY, one of the Chubb Group of

Insurance Companies, Auto-Owners Insurance Company,

Commercial Union Insurance Company, Great Southwest Fire

Insurance Company (now known as Vanliner Insurance Company),

Hartford Accident & Indemnity Company, Indiana Insurance

Company, Indiana Lumbermens Mutual Insurance Company,

Liberty Mutual Insurance Company, and Hamilton Mutual

Insurance Company, Counter-Defendants-Appellees,

and

Insurance Environmental Litigation Association, Amicus Curiae.

Docket No. 123554.

Court of Appeals of Michigan.

Submitted May 5, 1992, at Lansing.

Decided Dec. 21, 1992, at 9:10 a.m.

Released for Publication March 18, 1993.

Willingham & Cote, P.C. by John A. Yeager and Anthony S. Kogut, East Lansing, for Michigan Millers Mut. Ins. Co.

Honigman Miller Schwartz & Cohn by Jay E. Brant, Philip A. Grashoff, Jr., and Mark A. Goldsmith, Detroit (Biringer, Hutchinson & Van Doren, P.C., by Richard F. Biringer, of counsel), Coldwater, for Bronson Plating Co.

Sullivan, Ward, Bone, Tyler & Asher, P.C. by Michelle A. Thomas and Thomas M. Slavin, Southfield, for Indiana Lumbermens Mut. Ins. Co.

Franklin, Bigler, Berry & Johnston by Steven C. Berry, Troy, for Hamilton Mut. Ins. Co.

Schureman, Frakes, Glass & Wulfmeier by Steven M. Hickey, Detroit, for Commercial Union Ins. Co.

Cummings, McClorey, Davis & Acho, P.C. by Marcia L. Howe, Livonia, for Hartford Acc. & Indem. Co.

Howard & Howard, P.C. by Myra L. Willis, Kalamazoo, for Auto-Owners Ins. Co.

Kitch, Saurbier, Drutchas, Wagner & Kenney, P.C. by Stephen M. Kelley, Detroit, for Indiana Ins. Co.

Miller, Canfield, Paddock & Stone by Michael B. Ortega, Kalamazoo, for Federal Ins. Co.

Morrison, Morrison & Finley by Kenneth W. Morrison, Detroit, for Great Southwest Fire Ins. Co.

Beresh & Prokopp by Sandra A. Prokopp, Novi, for Liberty Mut. Ins. Co.

Proviser, Lichtenstein, Pearlman & Phillips, P.C. by Randall E. Phillips, Southfield (Wiley, Rein & Fielding, by Thomas W. Brunner, James M. Johnstone, James P. Anasiewicz, and Frederick S. Ansell, of counsel), Washington, DC, for amicus curiae Ins. Environmental Litigation Ass'n.

Before WAHLS, P.J., and MARILYN J. KELLY and REILLY, JJ.

WAHLS, Presiding Judge.

In this declaratory judgment action, defendant Bronson Plating Company appeals as of right from an order of the Branch Circuit Court that denied reconsideration of its earlier bench opinion and granted summary disposition to plaintiff Michigan Millers Mutual Insurance Company and the other insurers involved in the case, apparently pursuant to MCR 2.116(C)(10). The trial court held that Michigan Millers and the other insurers had no duty to defend or indemnify Bronson, their insured, from claims of environmental damage made by the United States Environmental Protection Agency (EPA) in the absence of a formal complaint filed in a court of law. Bronson contests that determination on appeal, as well as the trial court's earlier denial of its request for independent counsel and its motion to compel the production of certain discovery materials. Michigan Millers filed a cross appeal, claiming that the trial court erred in denying its motion for reimbursement of costs expended in defense of Bronson. We affirm in part, reverse in part, and remand.

I

The relevant facts are not in dispute. Bronson has conducted electroplating operations in an industrial area of the City of Bronson since 1946. In the course of these operations, large quantities of rinse water are released, plus certain waste materials, some of which are contaminants. While Bronson allegedly took certain steps to alleviate environmental damage, nonetheless, on June 10, 1986, Bronson's site of operations was listed on the National Priorities List pursuant to § 105 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9605. The Michigan Department of Natural Resources (DNR) had earlier included the site on its Priority List of Contaminated Sites pursuant to the Environmental Response Act, M.C.L. 299.601 et seq.; M.S.A. § 13.32(1) et seq.

In April 1986, the EPA sent Bronson formal notification that it considered Bronson to be a potentially responsible party for the contamination at the site. This type of notice is commonly referred to as a "PRP letter." The letter demanded that Bronson supply the EPA with all information known to Bronson regarding all ownership interests in the site, the nature and amounts present of all contaminants, how the site became contaminated, and Bronson's insurance coverage. The letter also demanded that Bronson undertake a hydrological study of the site and conduct a feasibility study with regard to remedial action. The EPA warned that Bronson's failure to comply with its requests could result in an enforcement action, civil penalties, or an order requiring compliance.

Bronson notified its insurers of the governmental action and demanded a defense. Only Michigan Millers tendered a defense, subject to a reservation of rights. A few days later, Michigan Millers filed a complaint for declaratory judgment that sought, among other things, a determination that Michigan Millers had no duty to defend or indemnify Bronson from any claim brought in connection with the PRP letter. One count of the complaint alleged that Michigan Millers had no duty to defend or indemnify because no "suit" had been brought against Bronson within the meaning of the several insurance contracts involved that would trigger a duty. ¹

II

The primary issue in this case is whether the EPA's actions constitute a "suit" that triggers a duty on the part of Michigan Millers to defend Bronson. In February 1989, Michigan Millers and the other insurers filed a motion for summary disposition pursuant to MCR 2.116(C)(8) and (10) that claimed that no duty to defend was triggered by the EPA's PRP letter. The trial court granted the motion. Before the order of summary disposition was entered, Bronson moved for reconsideration in light of the subsequent release of this Court's opinion in Polkow v. Citizens Ins. Co. of America, 180 Mich.App. 651, 447 N.W.2d 853 (1989), rev'd on other grounds, 438 Mich. 174, 476 N.W.2d 382 (1991). Polkow involved, in part, a factual setting and question nearly identical to that before us now. The panel in Polkow held that an insurer's duty to defend under an insurance contract, whose pertinent language is identical to that in the contracts in this case, had been triggered by its insured's receipt of correspondence from the DNR and the EPA that demanded that the insured conduct various studies of the contamination and possible cleanup of the site it used for its business of hauling and storing used oil and warned that the governmental agencies were empowered to recover the full cost of cleanup and environmental damage. Id., 180 Mich.App. at pp. 656-657, 447 N.W.2d 853.

At the hearing, held November 8, 1989, the trial court declined to modify its earlier bench opinion. The trial court correctly noted that the "duty to defend" portion of Polkow conflicted with an earlier, unpublished opinion of this Court, City of Evart v Home Ins. Co, unpublished opinion per curiam of the Court of Appeals, decided April 10, 1989 (Docket No. 103621), lv. den., 439 Mich. 917 (1992). The trial court also noted, however, that effective October 1, 1989, MCR 7.215(C)(1) was amended to allow appellate parties to cite unpublished opinions of the Court of Appeals, although the amended rule also reiterated that unpublished opinions do not have precedential effect. The trial court believed that, because Polkow conflicted with City of Evart, publication of Polkow was required by MCR 7.215(B)(7), and, by logic that is unclear to us, held that it "may therefore consider both [decisions], either or neither of those decisions, in attempting to fashion a decision which it believes is appropriate in the circumstances of the particular case." In this, the trial court erred.

Although the trial court was correct that publication of Polkow was required by the mandatory language of MCR 7.215(B)(7), it does not necessarily follow that an unpublished opinion of this Court obtains precedential value because a later, conflicting opinion is published, nor that the precedential value of the published opinion is diminished by the earlier unpublished opinion. The court rules themselves compel a contrary conclusion. Court rules are construed in accordance with their purpose, and, if the plain and ordinary language is clear, judicial construction is normally neither necessary nor permitted. People v. McCoy, 189 Mich.App. 201, 204, 471 N.W.2d 648 (1991); Foster v. Stein, 183 Mich.App. 424, 426-427, 454 N.W.2d 244 (1990). MCR 7.215(C)(1), both before and after its amendment, clearly provides that unpublished opinions do not have precedential value, and this rule is not contradicted by subrule B(7). The trial courts of this state are required to follow the published decisions of panels of this Court unless overruled by our Supreme Court, In re Hague, 412 Mich. 532, 552, 315 N.W.2d 524 (1982), or unless the published decision's precedential value is destroyed by the release of a published conflicting opinion after November 1, 1990, the date Administrative Order No. 1990-6 became effective. ² 436 Mich lxxxiv. The trial court in this case was therefore constrained to follow Polkow.

The next question is whether this Court's decision in Polkow remains good law because it was later reversed by our Supreme Court. 438 Mich. 174, 476 N.W.2d 382 (1991). The Supreme Court did not, however, address the merits of this Court's holding that the administrative mechanisms that had come into play amounted to a "suit" that triggered a duty to...