Asher v. Exxon Co., USA

504 N.W.2d 728, 200 Mich. App. 635

• Court: Michigan Court of Appeals
• Decided: July 19, 1993
• Docket: Docket 140366
• Status: Published

Opinion

Holbrook, Jr., J.

In this products liability case, the circuit court granted defendant Exxon Company, U.S.A., summary disposition under MCR 2.116(C)(7). Plaintiffs appeal as of right. We affirm.

Farmer Asher (plaintiff) worked for General Motors Corporation from February 10, 1966, to May 15, 1987. Plaintiff’s work involved cleaning glue residue from the walls and floors of spray booths. During the course of plaintiff’s employment at General Motors, he was exposed to various industrial adhesives and cleaning solvents manufactured and sold by Exxon Company, U.S.A. (defendant) and other defendants. Plaintiff used one of these products, "Fab cleaner,” throughout his tenure at General Motors. Defendant’s product, 587 Naphtha, was first sold to General Motors in July of 1985 for use as a component of Fab cleaner.

Plaintiff initially avoided going to a doctor because he did not want to be placed on sick leave and suffer reduced income. Dr. Jerry Walker first treated plaintiff in December of 1979 for chronic rhinitis, anxiety, boils, and breathing difficulty. Walker diagnosed that these conditions were caused by plaintiff’s exposure to chemicals at his workplace.

During the 1980s, plaintiff began to experience memory loss, difficulty finding his way around the General Motors plant, and chronic lethargy. Plaintiff failed to heed Walker’s advice to find a different job. In May of 1987, Walker declared plaintiff permanently disabled. Plaintiff and his wife filed their complaint on April 18, 1989.

Defendant moved for summary disposition under MCR 2.116(C)(7), arguing that plaintiffs’ complaint was not filed within the period of limitation. The other defendants joined in defendant’s motion. After plaintiffs had settled with all six other defen dants, the circuit court heard oral arguments regarding the motion. Defendant argued that plaintiff knew of his claim for several years by the time he began using Fab cleaner containing 587 Naphtha in July of 1985 because he knew from the onset of his first symptoms that the chemicals were a possible cause of his illness. Defendant argued that plaintiff had three years from the date of his first exposure to its product in July of 1985 to file timely his cause of action. Plaintiff responded that the complaint was filed timely because he was continuously subjected to defendant’s tortious conduct through plaintiff’s last day of employment with General Motors on May 15, 1987. Alternatively, plaintiff argued that the period of limitation had been tolled because he had been suffering from mental derangement. The circuit court found that plaintiff was not mentally deranged because he was able to work and function. The circuit court then granted defendant summary disposition.

When reviewing a motion for summary disposition under MCR 2.116(C)(7), this Court accepts all well-pleaded allegations as true and construes them most favorably to the plaintiff. Bonner v Chicago Title Ins Co, 194 Mich App 462, 469; 487 NW2d 807 (1992). If the pleadings show that a party is entitled to judgment as a matter of law, or if affidavits or other documentary evidence show that there is no genuine issue of material fact, the trial court must render judgment without delay. MCR 2.116(I)(1); Nationwide Mutual Ins Co v Quality Builders, Inc, 192 Mich App 643, 648; 482 NW2d 474 (1992). If no facts are in dispute, the court must decide as a matter of law whether the claim is statutorily barred. Harris v Allen Park, 193 Mich App 103, 106; 483 NW2d 434 (1992).

It is undisputed that the period of limitation for a products liability action is three years. MCL 600.5805(9); MSA 27A.5805(9). The issue 1 presented in this case is whether the continuing-wrongful-acts doctrine tolls the period of limitation in a products liability action until the time of the most recent exposure to the product.

MCL 600.5827; MSA 27A.5827 provides:

Except as otherwise expressly provided, the period of limitations runs from the time the claim accrues. . . .

[T]he claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results.

A cause of action for damages arising out of tortious injury to a person accrues when all the elements of the cause of action have occurred and can be alleged in a proper complaint. Connelly v Paul Ruddy’s Equipment Repair & Service Co, 388 Mich 146, 150; 200 NW2d 70 (1972). Under the discovery rule, an action for products liability accrues when the plaintiff discovers or should have discovered a possible cause of action. Bonney v Upjohn Co, 129 Mich App 18, 35; 342 NW2d 551 (1983).

In Defnet v Detroit, 327 Mich 254, 258; 41 NW2d 539 (1950), our Supreme Court held that continuing wrongful acts occurring within the period of limitation prevent the accrual of an action in trespass. Since then, the continuing-wrongful-acts doctrine has been applied to other claims. See, e.g., Moore v Pontiac, 143 Mich App 610, 614; 372 NW2d 627 (1985) (nuisance); Sumner v Goodyear Tire & Rubber Co, 427 Mich 505, 510; 398 NW2d 368 (1986) (civil rights). Plaintiffs argue that the continuing-wrongful-acts doctrine should apply to products liability actions for personal injury damages.

In Larson v Johns-Manville Sales Corp, 427 Mich 301, 304-305; 399 NW2d 1 (1986), our Supreme Court held in part that a cause of action for asbestosis accrues in accordance with the discovery rule rather than at the time of the exposure to asbestos or at the time of diagnosable injury. A products liability cause of action accrues at the time a person knows or should have known of the injury and not at the time of exposure to the product or at the time of diagnosable injury. Stinnett v Tool Chemical Co, Inc, 161 Mich App 467, 472-473; 411 NW2d 740 (1987), citing Larson. The Court in Stinnett, supra at 473, further held that the plaintiffs claim was barred by the statute of limitations because he failed to file his complaint within three years after he knew or should have known of the injury. Consequently, a cause of action for products liability accrues when the plaintiff discovers, or through the exercise of reasonable diligence should discover, an injury and its likely cause. Mascarenas v Union Carbide Corp, 196 Mich App 240, 244; 492 NW2d 512 (1992), citing Moll v Abbott Laboratories, 192 Mich App 724, 731; 482 NW2d 197 (1992). Accordingly, we conclude that the accrual of a products liability action is determined by reference to the discovery rule. Thus, the continuing-wrongful-acts-doctrine does not toll the period of limitation in a products liability action until the most recent exposure to the product. Rather, the period of limitation in a products liability case begins to run when the plaintiff discovers, or through the exercise of rea sonable diligence should discover, an injury and its likely cause. At that time, all the elements of the cause of action have occurred and can be alleged in a proper complaint. Connelly, supra.

In this case, plaintiff admitted that at the time he first developed symptoms of illness in the late 1970s, he believed that his symptoms were caused by the chemicals he used at work. Plaintiff’s first exposure to defendant’s product occurred in July of 1985. Like in Stinnett, supra, and Mascarenas, supra at 246, the circuit court in this case could have relied on plaintiff’s own statements to find his cause of action barred. We agree with defendant that plaintiff had three years from July of 1985 to file a claim. Because plaintiffs’ complaint was filed after July of 1988, it was barred by the statute of limitations.

We reject plaintiff’s argument that the period of limitation had been tolled under MCL 600.5851; MSA 27A.5851 because he had been suffering from mental derangement. None of the documentary evidence submitted by plaintiffs to the circuit court show any controversy with respect to whether plaintiff was deranged at the time his claim accrued. Makarow v Volkswagen of America, Inc, 157 Mich App 401, 407; 403 NW2d 563 (1987). Although the circuit court erred in finding that plaintiff was not mentally deranged because he was able to work, see Davidson v Baker-Vander Veen Construction Co, 35 Mich App 293, 302-303; 192 NW2d 312 (1971), the evidence presents no genuine issue of material fact regarding plaintiff’s sanity at the time his claim accrued. See also Hooper v Hill Lewis, 191 Mich App 312, 316; 477 NW2d 114 (1991). Thus, the circuit court did not err in granting defendant summary disposition.

Affirmed.

1 In Scott v Monroe Co Bd of Road Comm’rs, unpublished opinion per curiam of the Court of Appeals, decided November 8, 1989 (Docket Nos. 108566, 108567), lv vacated 438 Mich 869 (1991), this Court rejected the argument that the products liability statute of limitations began to run on the date of the plaintiffs last exposure to toxic substances in the workplace.