Oakwood Homeowners Ass'n, Inc. v. Ford Motor Co.

• Decision Date: 08 August 1977
• Docket Number: Docket No. 27475-76
• Citation: 77 Mich.App. 197,258 N.W.2d 475
• Parties: OAKWOOD HOMEOWNERS ASSOCIATION, INC., a Michigan Non-Profit Corporation, et al., Plaintiffs-Appellees, v. FORD MOTOR COMPANY, a Delaware Corporation, et al., Defendants-Appellants. 77 Mich.App. 197, 258 N.W.2d 475, 7 Envtl. L. Rep. 20,761
• Court: Court of Appeal of Michigan — District of US

Page 475

258 N.W.2d 475

OAKWOOD HOMEOWNERS ASSOCIATION, INC., a Michigan Non-Profit

Corporation, et al., Plaintiffs-Appellees, v. FORD MOTOR COMPANY, a Delaware Corporation, et al.,

Defendants-Appellants.

Docket No. 27475-76.

77 Mich.App. 197, 258 N.W.2d 475, 7 Envtl. L. Rep. 20,761

Court of Appeals of Michigan.

Aug. 8, 1977.

Released for Publication Oct. 17, 1977.

[77 MICHAPP 202] Honigman, Miller, Schwartz & Cohn by Robert A. Fineman, Detroit, Davidson, Gotshall, Kohl, Nelson, Secrest, Wardle & Lynch, Farmington Hills, for Edward Levy Co.; Roger F. Wardle, Farmington Hills, of counsel.

Butzel, Long, Gust, Klein & VanZile by Leslie W. Fleming, Detroit, for FMC & Marathon.

Dahlberg, Mallender & Gawne by Jack C. Radcliffe, Jr., Detroit, for Inter. Salt.

Donnelly W. Hadden, Detroit, for plaintiffs-appellees.

Before ALLEN, P. J., and D. E. HOLBROOK and RILEY, JJ.

RILEY, Judge.

On July 31, 1972, the Oakwood Homeowners Association along with 20 named, individual plaintiffs instituted this air pollution suit as a class action against four corporate defendants. The class consists of the association's members as well as other persons similarly situated, all of whom reside within a rectangularly shaped, eight-block area, slightly less than a square mile in size. The area is described as "both sides of Oakwood Avenue, bounded by Schaefer Highway, Dix Road, South Fort Street and the Rouge River".

The defendants, Ford Motor Company, Marathon Oil Company, Edward Levy Company and International Salt Company, each operate separate industrial facilities in southwest Detroit and western Wayne County within close proximity to plaintiffs' neighborhood. Defendant Ford manufactures automobiles and other products at its "River Rouge Complex" located in Dearborn; defendant Marathon maintains a petroleum refinery near the intersection of South Fort Street and Schaefer Highway in Detroit; defendant Levy operates a [77 MICHAPP 203] lime processing plant known as the Detroit Lime Company, located on Mellon Street in Detroit near Dix Road and the Rouge River; and defendant International Salt engages in the extraction, processing, storage and transportation of salt from its "Detroit Mine" located near Oakwood Avenue and Dumfries Street. Besides the defendants, other industries and public utilities operate facilities near the described area.

In a three-count complaint plaintiffs seek declaratory and injunctive relief pursuant to the Michigan Environmental Protection Act, M.C.L.A. § 691.1201 et seq.; M.S.A. § 14.528(201) et seq., (Count I); individual damages against the four defendants, jointly and severally, for common law private nuisance created by air pollution (Count II); and joint punitive damages against the defendants in separate amounts totaling $2.18 million (Count III). Basically, plaintiffs' complaint alleges that defendants have concurrently emitted and continue to emit into the atmosphere noxious aerosols, gases and particulate matter of sufficient volume and regularity to befoul the air, damage plaintiffs' property and endanger the health of some class members.

In July, 1975, after receiving 47 sets of interrogatory answers covering 72 individual claimants, defendants renewed their prior, unsuccessful efforts to dismiss plaintiffs' complaint. Specifically, the defendants by way of motion argued: (1) the impropriety, under GCR 1963, 208, of class-action status with regard to Counts II and III; (2) the misjoinder of plaintiffs and defendants, GCR 1963, 207; and (3) the need for separate trials under which each plaintiff would be required individually to sue each defendant apart from the others.

In an opinion of August 18, 1975, exhaustively [77 MICHAPP 204] reviewing applicable law, the lower court affirmed its denial of defendants' earlier motions, denied defendants' motion for separate trials and expressly held:

"This court is of the opinion that the allegations in the instant complaint and the very nature of this action make out a class action under the Michigan court rule 208.1. The use of a class action as a procedural device in this case will achieve economies of time, effort and expense and promote uniformity of decision as to persons similarly situated.

"Common questions of law, which comprise the main thrust of this litigation, are found to exist and to predominate over individual issues. The question of liability of all of the defendants, as alleged in * * * the complaint, is a common question of law. Did the four defendants violate the laws of Michigan and thereby cause damages to plaintiffs by the discharge into the air of certain gases and particulate matters?

"The determination of this liability is a common question of law as to all parties concerned. This common liability issue is not such a situation which would require a class member to litigate 'numerous and substantial questions to determine his individual right to recover subsequent to the rendering of any class judgment.' A trial on the merits can determine liability on the part of all or none or some of the defendants. Once the liability issue is determined, the mechanics of proving individual damages, if such is necessary, can follow established procedures of claim verification. See Comment, Manageability of Notice and Damage Calculation in Consumer Class Actions, 70 Mich. L.R. 338 (1971)."

On October 20, 1975, the lower court denied rehearing of defendants' motions, reiterating its previous holding. In response, defendants sought and secured leave to appeal the rulings of the trial judge before this Court.

We preface our analysis of defendants' appellate [77 MICHAPP 205] claims with a brief review of additional facts culled from plaintiffs' answers to defendants' interrogatories. These documents disclose that by far the great majority of plaintiffs allege damage to their homes or adjacent structures and to vegetation on their property. While some plaintiffs are specific in describing the offending effluent, many others point to multiple emissions and still others are silent on the precise cause of the alleged pitting, corrosion and dust. In addition, some plaintiffs charge defendants with damaging their health; and others do not. A few assert noise and vibration damage; but most do not. Moreover, as would be expected, some class members are longtime residents of the neighborhood, while others are more recent arrivals. In essence, then, plaintiffs are a heterogeneous lot, whose common tie is geographical (in that they together endure the alleged discharges from defendants' concurrent operations), and whose damages are different in degree, and to a limited extent, in kind.

On appeal, defendants contend that the present suit may not be maintained in its present posture either under the class action rule, GCR 1963, 208, or under the permissive joinder rule, GCR 1963, 206. They argue that, given the diversity of plaintiffs and defendants, the varying nature of the claims and damages, and the complexity of the case, no single jury could fairly weigh the liability, if any, of each defendant and accurately assess the damages, if any, flowing to the numerous claimants, without inevitably prejudicing defendants' due process rights. Accordingly, defendants seek severance of Count I, the claim for injunction; separate trials as to each defendant on Count I; and, alternatively, dismissal of plaintiffs' claims for damages on grounds of unmanageability, or, [77 MICHAPP 206] severance and separate trials of each named plaintiff's claim for damages against each defendant.

Plaintiffs initiated this suit under the so-called "spurious" class action rule of GCR 208.1(3), which provides in germane part:

".1 Representation. If persons constituting a class are so numerous as to make it impracticable to bring them all before the court, such of them, 1 or more, as will fairly insure the adequate representation of all may on behalf of all sue or be sued when the character of the right sought to be enforced for or against the class is

".3 several, and there is a common question of law or fact affecting the several rights and a common relief is sought."

With regard to the numerosity of plaintiffs, the adequacy of representation and the sufficiency of notice to potential claimants, defendants apparently do not challenge plaintiffs' status as a class; rather, defendants maintain that the questions of law and fact common to all plaintiffs are eclipsed by legal and factual issues peculiar to individual plaintiffs. In other words, the common questions do not predominate, as required by the following language from Northview Construction Co. v. St. Clair Shores, 395 Mich. 497, 509, 236 N.W.2d 396, 402 (1975):

"Under GCR 1963, 208.1(3), a claim is typical when it is based on a 'common question of law or fact * * * and a common relief is sought'. The claims need not be identical in such matters as the individual amount of damages, Foster v. Detroit, 254 F.Supp. 655, 667-669 (E.D. Mich., 1966), aff'd 405 F.2d 138 (C.A. 6, 1968); Oppenheimer v. F. J. Young & Co., 144 F.2d 387, 390 (C.A. 2, 1944), so long as common issues predominate and a judicial economy will be realized through the class [77 MICHAPP 207] action procedure. Partain v. First National Bank of Montgomery, 59 F.R.D. 56 (M.D.Ala., 1973)."

Not only defendants, but the lower court and plaintiffs' counsel as well, have viewed the predominance of common legal and factual questions as the prime area of focus. In this regard, we disagree.

We believe that class action practice under Michigan law contains no requirement that common class questions predominate over issues unique to individual plaintiffs. Admittedly, Northview, supra, carries language pointing to the opposite conclusion, but that case does not control for two reasons.

First, the opinion of the Court in Northview has lost its mooring in precedent. See Northview Construction Co. v. St. Clair Shores (On Rehearing), 399 Mich. 184, 249 N.W.2d 290 (1976...