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Home - Warner Norcross + Judd LLP

In the consolidated appeal of <a href="http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20160331_C323257_59_323257.OPN.PDF">Tennine Corporation v. Boardwalk Commercial L.L.C. et al.</a>, Docket No. 323257, the Michigan Court of Appeals held that a corporation’s health or enjoyment of the environment may be adversely affected by a release or threat of release from a facility, thus it has standing to bring suit under Michigan’s Natural Resources and Environmental Protection Act (NREPA).  Further, under Docket No. 324480, the Court held that because there was no amount with which to compare defendants’ offers of judgment, the amount of the offers failed to indicate that the defendants engaged in gamesmanship barring them from an award of costs and fees. 
  
In November 2011, a work crew, hired by defendants, from Jaeger Salvage entered onto plaintiff’s property in order to do demolition work on railroad tracks and rails on an abandoned railroad right-of-way.  The crew stacked railroad ties on plaintiff’s property and tracked contaminated soil onto plaintiff’s property.  In July 2012, plaintiff filed suit under the NREPA against defendants and all defendants filed motions for summary disposition.  The trial court granted the motions finding that plaintiff lacked standing to raise a NREPA claim against defendant CMR.  In addition, the trial court granted the Boardwalk defendants’ requests for actual costs, including attorney fees under MCR 2.105 because plaintiff did not accept their $500 offer of judgment.  Plaintiff appealed and both appeals were consolidated. 
  
In Docket No. 323257, the Court held that the trial court erred in concluding that the plaintiff lacked standing to pursue an NREPA claim against CMR.  The question before the Court was  whether a corporation has standing to sue under the NREPA when that corporation sues as a person whose health and enjoyment of the environment may be affected by contamination.  The Court concluded that a corporation is included in the definition of “person” under MCL 324.301(h).  Next, the Court reasoned that a corporation’s health and enjoyment of the environment may be adversely affected by a release or threat of release from a facility.  Furthermore, the purpose of the NREPA is to provide for an appropriate response to this activity.  The Court reversed the trial court’s holding and remanded for further proceedings. 
  
In Docket No. 324480, the Court affirmed the trial court’s holding that the amounts of the offers failed to indicate that the Boardwalk defendants engaged in gamesmanship and that the interest of justice exception did not bar an award of costs and fees under MCR 2.405.  The Court held that because there was no case evaluation award or other amount with which to compare the offer, the $500 offer was not de minimis and did not amount to gamesmanship.  Moreover, the interest of justice exception to “the offer of judgment rule” should not be applied absent unusual circumstances, which the Court held were not present in this case.

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Senior Counsel

Conor B. Dugan

Labor and Employment

COA – A corporation’s health or enjoyment of the environment may be adversely affected by a release or threat of release from a facility, thus it has standing to bring suit under the NREPA

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COA – A corporation’s health or enjoyment of the environment may be adversely affected by a release or threat of release from a facility, thus it has standing to bring suit under the NREPA

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