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In <a href="http://links.govdelivery.com/track?type=click&enid=ZWFzPTEmbWFpbGluZ2lkPTIwMTcwNjAyLjc0MTA0ODUxJm1lc3NhZ2VpZD1NREItUFJELUJVTC0yMDE3MDYwMi43NDEwNDg1MSZkYXRhYmFzZWlkPTEwMDEmc2VyaWFsPTE3NDIwMzY3JmVtYWlsaWQ9anRyb21ibGV5QHduai5jb20mdXNlcmlkPWp0cm9tYmxleUB3bmouY29tJmZsPSZleHRyYT1NdWx0aXZhcmlhdGVJZD0mJiY=&&&102&&&http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20170601_C328716_92_328716.OPN.PDF">Henry v. Dow Chemical Co.</a>, No. 328716, the Court of Appeals determined that the statute of limitations begins to run when harm is done to the plaintiff.  A defendant’s act does not cause the statute of limitations to run pursuant to MCL 600.5805(10); rather, the starting point is when harm is done to the plaintiff. 
  
This is a long-running case that was discussed <a href="http://www.wnj.com/Blogs/Appellate/February-2009/MSC-Oral-Argument-Henry-v-The-Dow-Chemical-Compa">here</a> previously.  In the present case, the question presented was when the statute of limitations began to run.  Defendant argued the claim accrued in the mid-1980s when the public was first made aware of pollutants in the Tittabawassee River.  The Court reviewed the record and determined that the 2002 notice by the Michigan Department of Environmental Quality (MDEQ) alerted plaintiffs to the possibility that dioxins were present in their soils, and that this notice created the requisite harm to the plaintiffs. The Court determined that the statute of limitations did not begin to run after plaintiffs obtained adequate information to support their claims, but began when they were initially informed of the possible presence of dioxins in the soil. Thus, the Court held that the statute of limitations began when the MDEQ informed plaintiffs of the probability that their soil was contaminated. This meant that the statute of limitations did not begin to run until 2002. Because the action was brought in 2003, it was filed within the appropriate period for satisfying the statute of limitations. 
  
The Court further held that a present physical injury existed in the case because plaintiffs’ claim was for actual injury in the form of contamination of soil and depreciation of property based on the 2002 MDEQ notice. The subsequent investigation by the MDEQ and the EPA highlighted health concerns and the economic depreciation due to the contamination of the soil on the plaintiffs properties.  This was enough to support a present physical injury. 
  
Judge Gadola dissented.  He would have held that the plaintiff was harmed when the dioxin dumped in the river by the defendant actually reached the plaintiffs’ properties or otherwise reached a particular plaintiff. Thus, the requisite question was not when the plaintiff learned of the harm—the MDEQ Notice—but rather the point at which the plaintiff was actually physically harmed.  Accordingly, Judge Gadola would have remanded to the trial court for a determination of when that occurred—i.e., when the dioxins reached plaintiffs’ properties. 
  
Disclaimer: WNJ represents Dow in other matters.

core/freeform

Senior Counsel

Conor B. Dugan

Labor and Employment

COA: For statute of limitations purposes, a wrong is done when the plaintiff is harmed

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COA: For statute of limitations purposes, a wrong is done when the plaintiff is harmed

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