Gilliam v. Hi-Temp Products, Inc.

677 N.W.2d 856, 260 Mich. App. 98
CourtMichigan Court of Appeals
DecidedDecember 18, 2003
DocketDocket Nos. 238102, 238224, 238341, 238375
StatusPublished
Cited by15 cases

This text of 677 N.W.2d 856 (Gilliam v. Hi-Temp Products, Inc.) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gilliam v. Hi-Temp Products, Inc., 677 N.W.2d 856, 260 Mich. App. 98 (Mich. Ct. App. 2003).

Opinion

Markey, J.

In each of these consolidated appeals, defendant Hi-Temp Products, Inc., appeals by leave granted the trial court’s order denying its motion for summary disposition. Hi-Temp argues that plaintiffs’ claims of asbestos-related personal injury are barred by MCL 450.1842a1 because they were filed beyond the one-year period allowed for the filing of claims after Hi-Temp published notice of its dissolution. We agree and reverse.

[101]*101I. SUMMARY OF FACTS AND PROCEEDINGS

Hi-Temp sold asbestos products. Many individuals have claimed that their exposure to Hi-Temp’s products caused asbestos-related diseases. They have sued Hi-Temp frequently and continuously since the mid-1980s. In 1992, Hi-Temp ceased active business operations. Its sole shareholder resolved on October 8, 1993, that Hi-Temp be dissolved and its assets distributed. On October 14, 1993, Hi-Temp filed a certificate of dissolution pursuant to subsection 831(b). The Bureau of Corporations and Securities stamped the certificate filed on October 25, 1993, thereby making the dissolution effective. Subsection 131(3); subsection 804(7); Freeman v Hi Temp Products, Inc, 229 Mich App 92; 580 NW2d 918 (1998). Hi-Temp averred that it made a “complete distribution of its corporate assets” by selling its inventory and equipment, collecting its receivables, paying bills, and making provisions for the payment of its outstanding liabilities. It is undisputed that Hi-Temp made a final distribution of assets in the amount of $9,571.99. But it is also undisputed that from 1978 through 1985 Citizens Insurance Company provided Hi-Temp with products-liability insurance coverage, and that the limits of the policies have not been exhausted.

Hi-Temp published a notice of dissolution in the Oakland Press on October 25, 1993,2 July 3, 1996, and October 20, 1998. Hi-Temp also gave notice of its dissolution through its counsel directly to plaintiffs’ [102]*102counsel on October 15, 1993, and October 21, 1998. MCL 450.1842a(3) essentially provides that all claims against a dissolved coiporation are barred unless “the claimant commences a proceeding to enforce the claim against the dissolved corporation within 1 year after the publication date . . . .” Plaintiffs’ actions alleging personal injury or death as a consequence of the use of, or exposure to, asbestos in Hi-Temp’s products were filed after October 21, 1999. In all cases, Hi-Temp moved for summary disposition, asserting the statutory bar to claims filed more than one year after publication of notice in accordance with § 842a. Plaintiffs argued that they had shown good cause for not presenting their latent claims earlier and that Hi-Temp’s insurance coverage was an undistributed asset within the meaning of subsection 851(2), an exception to § 842a.

MCL 450.1851(2) provides: “For good cause shown, and so long as a corporation has not made complete distribution of its assets, the court may permit a creditor who has not delivered his or her claim or commenced a proceeding to enforce his or her claim within the time limits provided in sections 841a and 842a to file the claim or to commence a proceeding within the time as the court directs.” Plaintiffs also argued that Hi-Temp was estopped from invoking § 842a because Hi-Temp had failed to provide for payment of its obligations as required by § 855a. In each of these cases, the trial court rejected Hi-Temp’s argument and denied summary disposition for the reasons we hereafter summarize.

In Docket No. 238102 (Gilliam), Wayne Circuit Judge Robert J. Colombo, Jr., first rejected plaintiffs’ argument that Hi-Temp was estopped by § 855a to assert the bar of § 842a because § 855a specifically [103]*103provides: “Provision need not be made for any debt, obligation, or liability that is or is reasonably anticipated to be barred under section 841a or 842a.” Judge Colombo reasoned that the Legislature intended § 842a to bar future claims against dissolved corporations, citing Freeman, supra at 96. Judge Colombo further reasoned that plaintiffs’ claims were “contingent” within the meaning of subsection 842a(3)(c) because asbestos-related diseases may take years to manifest after exposure to asbestos fibers, or may never occur.

Having concluded that § 842a would otherwise bar plaintiffs’ claims, Judge Colombo next considered whether under subsection 851(2) “good cause” existed for plaintiffs’ delay, and whether Hi-Temp had not completely distributed its assets. Judge Colombo determined that plaintiffs had established “good cause” because plaintiffs could not bring suit until their claims accrued upon discovery, or when plaintiffs should have with reasonable diligence discovered their asbestos-related disease and discovered the causal connection between their disease and Hi-Temp’s alleged breach of duty. Moll v Abbott Laboratories, 444 Mich 1, 16; 506 NW2d 816 (1993); Larson v Johns-Manville Sales Corp, 427 Mich 301; 399 NW2d 1 (1986).

Regarding whether Hi-Temp had distributed all its assets, Judge Colombo found most persuasive Nat’l Union Fire Ins Co of Pittsburgh, PA v City Savings FSB, 28 F3d 376 (CA 3, 1994), which held that for the purposes of 12 USC 1821(d)(3), (d)(13)(D)3 an insur-[104]*104anee policy was an “asset” of an insolvent financial institution. The Nat’l Union court applied the common legal definition of “asset” from Black’s Law Dictionary (6th ed, 1990) to conclude that the policies of insurance held by the insolvent bank, on which the Resolution Trust Corporation, as receiver, was attempting to collect $152 million in losses from fraudulent conduct of bank employees, were “assets” of the bank for purposes of 12 USC 1821(d)(13)(D). Nat’l Union, supra at 384. Relying on Nat’l Union, Judge Colombo ruled “a corporation has not made a complete distribution of its assets when it has an unexhausted insurance policy.” Accordingly, Judge Colombo concluded that Hi-Temp’s insurance carrier could be liable for any judgments plaintiffs obtained because a dissolved corporation can be sued under Michigan law,4 and subsection 851(2) applied to override the bar of § 842a.

In Docket No. 238224 (Mullett), Midland Circuit Judge Paul Clulo also denied Hi-Temp’s motion for summary disposition. Judge Clulo concluded:

The court will not repeat the grounds for its decision, which have been stated and restated in a number of Circuit Court decisions in Michigan in recent years. Suffice it to say that the court finds the rationale of the judges in Ernest v Duro Supply, 96-012998-NP-5, Saginaw County Circuit Court (8/2/2000), and Miller v Alexander-Stafford Corporation, 99-05792-NP, Gratiot County Circuit Court (12/4/2000), to be persuasive. In addition, this court also finds that the decision in Williams v Grossman, 409 Mich 67 [293 NW2d 315] (1980), is persuasive on the issue of whether an insurance policy is an undistributed asset thus implicating MCL 450.1851(2).

[105]*105In Ernest, a case with a fact situation similar to the instant cases, Saginaw Circuit Judge Leopold P. Bor-rello found that § 842a did not apply. Judge Borrello reasoned that the purpose of § 842a, to require creditors reasonably expected to file their claims against a dissolved corporation to do so within one year, would not be furthered when the plaintiffs did not realize that their claims existed.

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Gilliam v. Hi-Temp Products Inc.
677 N.W.2d 856 (Michigan Court of Appeals, 2004)

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Bluebook (online)
677 N.W.2d 856, 260 Mich. App. 98, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilliam-v-hi-temp-products-inc-michctapp-2003.