Price v. High Pointe Oil Co.

• Decision Date: 25 August 2011
• Docket Number: Docket No. 298460.
• Citation: 294 Mich.App. 42,817 N.W.2d 583
• Parties: PRICE v. HIGH POINTE OIL COMPANY, INC.
• Court: Court of Appeal of Michigan — District of US

294 Mich.App. 42

817 N.W.2d 583

PRICE

v.HIGH POINTE OIL COMPANY, INC.

Docket No. 298460.

Court of Appeals of Michigan.

Submitted July 12, 2011, at Lansing.

Decided Aug. 25, 2011, at 9:15 a.m.

Sinas, Dramis, Brake, Boughton & McIntyre, P.C., Lansing (by James F. Graves and Stephen H. Sinas), for plaintiff.

Garan Lucow Miller, P.C., Detroit (by Megan K. Cavanagh), for defendant.

Before: BECKERING, P.J., and FORT HOOD and STEPHENS, JJ.

BECKERING, P.J.

In this negligence action, defendant, High Pointe Oil Company, Inc., appeals as of right following a jury trial in which plaintiff, Beckie Price, was awarded $100,000 in noneconomic damages after defendant filled the basement of her home with nearly 400 gallons of fuel oil. The incident created an environmental hazard that required plaintiff's home to be razed from the site and left her displaced from a permanent home for almost two years. Defendant appeals the trial court's orders denying its motion for summary disposition on the issue of noneconomic damages and it's motion for judgment notwithstanding the verdict (JNOV) and remittitur. We affirm.

I. FACTS AND PROCEDURAL HISTORY

Plaintiff owned a home located in DeWitt, Michigan. She and her former husband helped to build the house, which was completed in 1975. The house was heated by an oil furnace, and the oil tank was kept in the basement. Beginning in 1995, the tank was serviced by Mooney Oil, which was later purchased by defendant. Plaintiff was on defendant's “keep full” list. In 2006, plaintiff replaced her oil furnace with a propane furnace. She then sold the oil furnace and oil tank to a neighbor, who removed both from plaintiff's basement. Before switching to the propane furnace, plaintiff telephoned defendant and canceled its services. There were no fuel oil deliveries made to plaintiff's house between October 2006 and November 2007.

On November 17, 2007, while plaintiff was at work, defendant attempted to deliver fuel oil to her house because her name was inadvertently placed on defendant's“keep full” list. Although the oil furnace and oil tank had been removed from plaintiff's basement, the fill pipe located outside of the house had remained unchanged. Defendant's oil truck driver took the hose from his truck, hooked the hose up to the fill pipe, and pumped fuel oil into plaintiff's basement. After four or five minutes, the driver stopped pumping because he felt it had gone too long and that there might be a problem. The driver then looked into the basement and saw fuel oil on the floor. He called 911, and emergency crews responded shortly thereafter. In total, the driver pumped 396 gallons of fuel oil into plaintiff's basement.

An environmental consulting company assessed the damage. Many of plaintiff's personal items located on the main floor of the home were able to be salvaged; however, most of the items in the basement were too heavily contaminated to be salvaged. Additionally, more porous items, such as mattresses and pillows, could not be salvaged because they had absorbed oil fumes. The items that could be salvaged were placed in storage, and the rest were put in a pole barn on plaintiff's property. Eventually, it was determined that the oil had leaked into the soil and that as a result of the contamination, the entire house had to be demolished. The Department of Environmental Quality notified plaintiff on April 18, 2008, that the excavation and cleanup of the soil had been completed and that no further action was required.

From November 17, 2007, to March 1, 2008, plaintiff stayed in the extra bedroom of her parents' house, which was also being used to store a number of large antiques, although she often slept on the couch. Her parents were in Texas for all but one week of the time she lived there. From March 1, 2008, until late September 2009, plaintiff stayed in a duplex. Thereafter, she moved into a new house that she had helped to build. Plaintiff built the new house on the same property as the old one, but the new house had to be built in a different location on the property because the soil was unstable where the site had been excavated.

Plaintiff filed suit in August 2008, alleging counts of negligence, gross negligence, negligent infliction of emotional distress, nuisance, trespass, and a private citizen's claim under the Natural Resources and Environmental Protection Act, MCL 324.101 et seq. She requested general and compensatory damages for the economic harm caused by defendant's conduct, as well as noneconomic damages for annoyance, inconvenience, pain, suffering, mental anguish, emotional distress, and psychological injuries caused by the destruction of her house.

Plaintiff moved for partial summary disposition under MCR 2.116(C)(9) and (10), requesting that the trial court grant summary disposition on her claims of negligence, negligent infliction of emotional distress, trespass, and nuisance. Plaintiff also argued that under the court rules she was entitled to seek noneconomic damages for emotional distress and mental anguish and exemplary damages. Defendant filed a countermotion for summary disposition under MCR 2.116(C)(8) and (10). In regard to plaintiff's request for noneconomic damages, defendant argued that noneconomic damages resulting from property damage are not compensable.

The trial court granted plaintiff summary disposition on her negligence claim and granted defendant summary disposition on plaintiff's claims of gross negligence and negligent infliction of emotional distress. The court denied both parties' motions for summary disposition on the trespass, nuisance, and private citizen's claims. With regard to noneconomic damages, the court stated:

[ The Court ]: Relating to the damages, in essence, by dismissing the claim of negligent infliction of emotional distress, I have deprived the Plaintiff of the opportunity to seek mental anguish damages secondary to property damage, and I think that's the law....

So, it seems to me that the request for economic losses adequate to put the Plaintiff in the position she would have occupied had the torts not been committed, is, of course, for the jury, and I'm satisfied that she can seek to recover non-economic damages as typically allowed in connection with the claim for negligence.

* * *

[ Defense Counsel ]: Just for clarification for me, you are allowing mental anguish damages for the negligence claim resulting to the property damage?

The Court: Yes, and that's why I took out, in part, the claim for negligent infliction of emotional distress, because the idea of inflicting emotional distress is that the foreseeable outcome of the actor's conduct would be to cause emotional distress, and I don't think that a negligent defendant has to foreseeably see that as an outcome of their conduct if, in fact, it results naturally and probably from that conduct.

The parties agree that during the time plaintiff was displaced from her home, all of her economic losses, including the costs of demolition, excavation, and remediation expenses, were paid by her insurer, defendant, or defendant's insurer. Plaintiff received $175,000 from her insurance company, which represented the fair market value of her house, approximately $10,000 for lost personal property, and $1,000 a month for rent while she lived in the duplex. Plaintiff testified at her deposition that she had not incurred any out-of-pocket costs associated with the incident.

In January 2010, the case proceeded to a jury trial on plaintiff's trespass, nuisance, and private citizen's claims, as well as the issue of damages related to her negligence claim. Before presenting any proofs, plaintiff withdrew her claim for economic damages, as well as her trespass and nuisance claims. She requested that the court handle her private citizen's claim posttrial.¹ Over defendant's objection, the court ruled that plaintiff was entitled to seek noneconomic damages for mental anguish, fright, shock, denial of social pleasures or enjoyments, and any embarrassment she suffered as a result of defendant's negligence.

Plaintiff testified that she felt a great sense of loss over the destruction of her house, which held special memories for her; she was embarrassed to move into her parents' house as an adult; she suffered from sleeplessness and an inability to concentrate because of the stress of the situation; and she took an antidepressant over the course of several months. At the close of proofs, the court instructed the jury, over defendant's objection, that it could award plaintiff “non-economic damages, for things such as mental anguish and fright and shock, and denial of social pleasures and enjoyment in the use of the former home and embarrassment or humiliation” suffered as a result of the property damage negligently caused by defendant. The jury returned a verdict in favor of plaintiff in the amount of $100,000 for past damages and $0 for future damages. The court entered a judgment in plaintiff's favor. Thereafter, defendant filed a motion for a new trial, JNOV, and remittitur, arguing that plaintiff had failed to present sufficient proofs to support the verdict. The court denied the motion.

Defendant now appeals as of right the trial court's orders regarding plaintiff's recovery of noneconomic damages.

II. STANDARDS OF REVIEW

Whether a plaintiff is entitled to seek noneconomic damages for damage to or destruction of real property presents a question of law, which we review de novo. See 2000 Baum Family Trust v. Babel, 488 Mich. 136, 143, 793 N.W.2d 633 (2010).

Plaintiff moved for partial summary disposition under MCR 2.116(C)(9) and (10), and defendant moved for summary disposition under MCR 2.116(C)(8) and (10). The trial court did not specify which subrules it relied on in deciding the parties' motions.

A grant or denial of summary disposition is reviewed de novo to determine if the moving party is entitled to judgment as a matter of law. Maiden v. Rozwood, 461 Mich. 109,...