TOV Injury and Safety Blog

Sixth Circuit recognizes class action status of women whose Whirlpool washers developed mold

Gina Glazer and Trina Allison filed a class action lawsuit against Whirlpool Corporation after their front-loading washers developed mold in the detergent dispenser.  The trial court certified their complaint as a class action and Whirlpool appealed.  The Sixth Circuit Court of Appeals upheld the trial judge's certification after reviewing the necessary elements and the discretionary standard.

Federal Court rejects claim that expert testimony is too speculative

V & M Star Steel sued Centimark Corporation, claiming that it suffered more than three million dollars in property damage when roofing contractors negligently left bundled steel on V & M's roof during repairs.  The Plaintiff argued that when roofers encountered  a rain storm, they left supplies in a haphazard and unsafe condition, and bundled steel slid down the roof, destroying structures on the ground below.

Court examines "speculative cause" for sewer back-up and reinstates dismissed claim

Michael and Joy Kole sued Nagle Paving Company after their basement flooded with sewage.  It was clear that the sewer backup occurred because there was excessive debris in a nearby manhole, including large chunks of asphalt and brick.  Since the Nagle Paving Company was the only company known to have performed significant asphalt work in the area in the past decade (since the manhole was last inspected), Koles sued them for depositing the debris in the manhole. 

Nagle produced an affidavit from its work supervisor claiming that Nagle did not damage or deposit debris in the manhole when it removed the asphalt from the road surface and re-paved it for a housing development entrance.  The Koles produced a development engineer who testified that Nagle was the only reasonable source of the debris, and also confirmed by deposition that Nagle's supervisor was not present most of the day when the nearby asphalt was cut up, removed and replaced. The supervisor also acknowledged that debris is commonly deposited in manholes during asphalt reconstruction without the construction crew necessarily recognizing that it has happened.

Based on these proofs, the Court of Appeals ruled that the trial judge had committed error in dismissing the Kole's case.  The judge had deemed the Kole's evidence "too speculative."  The higher court unanimously ruled that there was ample evidence to support a jury's decision that Nagle caused the debris deposit---if the jury actually reaches that conclusion after weighing the testimony.

Court reverses another summary disposition wrongly based on "contract immunity."

Richard Burns lost his home in a fire caused by a defective wood stove.  He and his insurer, USAA, sued JCS Fireplace and a contractor, arguing that the negligent installation of the wood stove made the contractor, JCS (and their insurers) liable for the resulting fire damage.  The trial court dismissed the negligence case, citing the Republican Supreme Court's much-criticized "contract immunity" holding. 

Landowners lose suit against neighbor alleging trespass by waterflow

The Droncheffs sued the Kerrs in Livingston County Circuit Court, alleging that every time it rains, the Kerrs' holding pond overflows and floods the Droncheffs' property.  One of their claims was that the flooding constituted a trespass-nuisance, however, the Court held that this theory of action applied only to claims against the government and had been "eliminated" by the Engler Majority Supreme Court in an earlier decision. With regard to a trespass by diverting water flow, the Court held that the Droncheffs hadn't met their burden of proof.

Plaintiff wins causation or speculation argument between two insurers

Nationwide Mutual Fire Insurance Company paid its coverage to the Isham family after their home burned down, and then sued, under its subrogation rights, a propane company and contractor for negligence.  Nationwide argued that Parker's Propane Gas Company and Staley Plumbing and Heating caused the fire when they installed a compromised flexible gas line behind the Isham's oven.  The Defendants argued that Nationwide's claim was based entirely on speculation about whether a leak fueled a fire in the oven-drawer for several hours, or whether the fire was caused by a faulty temperature regulator.

Oil Company loses appeal: must pay non-economic damages to woman after destroying her home

High Pointe Oil Company pumped 400 gallons of fuel oil into the basement of Beckie Price's home, creating an environmental hazard that required the destruction of the home and left Price homeless for nearly two years. She sued for negligence and recovered a verdict for the property damage, plus $100,000.00 in non-economic damages.  High Pointe's insurer appealed, arguing that it could not be held responsible for Price's non-economic injuries (that is, her displacement from home, loss of her home, and mental anguish and inconvenience). 

Oil Company loses appeal: must pay non-economic damages to woman after destroying her home

High Pointe Oil Company pumped 400 gallons of fuel oil into the basement of Beckie Price's home, creating an environmental hazard that required the destruction of the home and left Price homeless for nearly two years. She sued for negligence and recovered a verdict for the property damage, plus $100,000.00 in non-economic damages.  High Pointe's insurer appealed, arguing that it could not be held responsible for Price's non-economic injuries (that is, her displacement from home, loss of her home, and mental anguish and inconvenience). 

Tittabawassee property owners can't join together to sue Dow Chemical for Dioxin pollution

A Saginaw Circuit Court judge ruled this week that 2000 owners of property in the Tittabawassee river watershed cannot join together in a class action against Dow Chemical.  Needless to say, having to pursue the claims individually means that many or most of the property owners will be unable to seek relief, as the scientific cost of proving the fact of pollution and its impact will be too great for most residents. The judge cited the recent decision by the conservative majority of the Supreme Court in the Wal Mart gender bias case in ruling that the class action would require too much individual fact investigation:  better justice only for the wealthy than complicated justice for the many.

Dow has acknowledged polluting the river and flood plain for most of the 20th century with Dioxin, a proven carcinogen. Dow's attorney expressed the company's pleasure with the decision.

Court allows property damage claim to go to jury where Defendants evicted wrong tenant

Julius Ward had the great misfortune of living next to a tenant who was evicted from his apartment for non-payment of rent.  When authorities executed the eviction procedure, they mistakenly removed Ward's possessions from his apartment, damaged them by putting them in a dumpster, and then hauled them away. Ward sued for gross negligence.

Expert supporting Non-Hodkins Lymphoma patient's claim against BP is excluded

Sue Pluck was diagnosed with Non-Hodkins Lymphoma (NHL) several years after a BP pipeline spill contaminated the groundwater under her home.   While it is acknowledged that benzene was present in her well water and soil, and that it is a carcinogen capable of causing NHL, the Federal Sixth Circuit Court of Appeals upheld the dismissal of her case because her retained expert could not quantify the extent of Pluck's exposure to Benzene.  Testing of her well never exceeded the 5 ppm considered the maximum  safe exposure by the EPA, and  testing of the soil at her home had not been completed at the time the expert testified.  The expert's argument that there is no safe level of exposure to benzene was rejected by the Court.

Lenawee County groundwater contamination case is reinstated

Thomas and Robert Robarge sued the Tecumseh Products Company, alleging that Tecumseh's manufacturing activities had diminished the use, enjoyment and market value of their property by reason of a spreading plume of groundwater contamination. The lower court dismissed their case after the Defendant raised an "Engler Majority" holding that the Defendants argued should apply to the Robarge claim. 

Insurance Company wins fight to deny insurance claim arising out of vacant building

In 2005, a Genessee County judge issued an order closing the Fisher Hotel, which it deemed a public nuisance.  The owners then purchased coverage on the vacant buildings involved.  In 2007, the buildings were damaged by vandalism, however, the insurer refused to pay the owners' claim, relying on a vandalism exclusion applicable to property that is unoccupied for 60 days or more.  The trial court upheld this exclusion and granted the insurer summary disposition, and the owners appealed.

LaSalle Bank forced to pay damages for private nuisance after destroying neighbor's back yard

Richard and Suzanne Hainer sued LaSalle Bank after an Oakland County branch under construction changed the grade of its lot and flooded their backyard.  After a bench trial, the Hainers were awarded $15,000.00 in damages for the loss of the use and enjoyment of the back yard during a two-year period, but they were not awarded any attorney's fees.  The Bank appealed the award and the Hainers appealed the denial of attorney's fees.

Court holds that property owner can sue water main contractor after flooding

Cheryl Boylan's property was flooded the season after a major water main project was completed in Lyon Township of Oakland County.  She alleged the flooding occurred because the contractors eliminated a nearby swale and changed the topography of her land to allow surface water to pool.  Her experts suggested that failures by the contractors building the new water main resulted in surface water overwhelming the septic system and causing it to fail.

Another party denied justice by Engler Majority's decision eliminated "continuing wrong" statute of limitations.

For decades, Michigan did not allow the statute of limitations to run if a wrong-doer continued engaging in the same wrongful conduct.  This policy encouraged victims to be patient in responding to negligence and nuisance and to seek out non-litigious solutions and negotiated settlements.  Several years ago, however, the insurance-friendly majority of the Michigan Supreme Court handed down a ruling completely wiping out the "continuing wrong" doctrine.  Under the reactionary approach of the Engler justices, the statute of limitations would run from the first day of any trespass or tort, and regardless of how many times it was repeated, the victim would have no recourse after the statute of limitations was applied to that first transgression.

Tenants "locked out" are allowed to collect exemplary damages; verdict upheld

The Court of Appeals this week upheld a Grayling verdict on behalf of Gary and Patricia Christie against Charles L. Fick and his company.  The Christies had rented a cabin from Fick for seven years.  When Ms. Christie did not have the wherewithal to pay that month's rent on Fick's demand, and was asked to return when Mr. Christie returned from an errand, Fick apparently decided to resort to self help.  He returned while the Christies were not at home, removed and stored their belongings, and locked the Christie's out of the cabin, in violation of MCL 600.2918.  Their property was subsequently damaged in storage.

Farm Bureau allowed to invalidate homeowners insurance after fire occurs

Stuart Howard experienced a fire in 2006.  After paying the claim, Nationwide cancelled his policy.  He then bought insurance from Farm Bureau.  He claimed that a typewritten Farm Bureau application was prepared by the insurance and merely offered for his signature.  After a second fire occurred while Howard was absent, Farm Bureau voided its policy and returned Howard's premium instead of paying for the fire damage.  The second fire was caused by a space heater that Howard was using to heat the home because his furnace wasn't operating, and Farm Bureau pointed to entries on his application representing that the furnace in the home was new in 2004.

Court reinstates breach of warranty claims; discusses judicial bias

In Fox v. Sherwin-Williams Company, the defense attorneys' error in disclosing to the Court and publishing a mediation recommendation, turned a $4,500.00 dispute into a brouhaha that ultimately led to an award of more than $25,000.00 in sanctions against the plaintiffs.  The Court ultimately reversed those sanctions and sent the case back for one more round of bitter wrangling.  Judge Peter D. O'Connell, one of the more thoughtful and least partisan of the Court's judges wrote a thoughtful concurrence on the issue of judicial bias and recusal.  He pointed out that through no fault of her own, the District Court judge in this case had become personally embroiled in the party's bitter dispute over the weather-proofing of a deck, and should be removed from the case. 

Children injured by toxic mold can recover against neighboring condominium owner

Mario Genna and his family sued the contiguous condominium owner after her unit was left unoccupied for several months and became contaminated by mold.  She had developed a serious plumbing leak that went undiscovered.  Several of the molds identified when the condition was finally discovered were known to cause significant health problems with constant exposure.

The Genna family suffered severe respiratory and digestive problems and ultimately had to leave their home before the children's health improved.  When the problem with the neighboring condominium was revealed, they sued the neighbor for damages and recovered a verdict of more than $300,000.00.  The neighbor's insurer appealed, arguing that the family did not present adequate expert testimony linking the children's health problems to the mold exposure.

Contractor must pay for cost to repair home to make it saleable, and diminution of market value

Gerald T. and Jonna Heaton sued their builders after the foundation of their new home shifted twice, during construction, necessitating substantial repairs and modifications.  They sued alleging contract violations and negligence, but only the negligence theories went to trial.  Ultimately, the jury awarded them more than $70,000.00 in costs to repair and another $200,000.00+ for diminution in market value.  The Defendants argued that Heatons should not have been allowed to recover both forms of damages.