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Volume XXV, No. 19, November 11, 2013 

From the Law Offices of Garan Lucow Miller, P.C.

From the Editor: Sarah Nadeau 

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 Message from the Chairman, Roger A. Smith

Dear Friends:

It is with a sense of sadness but also with a sense of sincere appreciation for Mr. Sy Orlowski’s stellar efforts on behalf of his many clients over the years that I must inform you of his retirement.  He will be missed by many appreciative clients and, of course, by Garan Lucow Miller.

In light of this development, it has also become necessary to appoint a replacement Editor of LawFax: fortunately, that position will now be occupied by one of our many accomplished appellate lawyers, Sarah Nadeau.  Ms. Nadeau has extensive experience in handling insurance and tort matters before the Michigan Supreme Court as well as the Michigan Court of Appeals and will ably continue to deliver insightful, substantive and breaking news through this publication.

While we will miss the contributions of Mr. Orlowski and wish him well in his retirement, we also take pride in the introduction of Ms. Nadeau as his worthy successor.

 

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Environmental Clean Up Lawsuit Against Truckers Barred By No-Fault Act

 

 

 

CONTRIBUTOR – L. Ladd Culbertson

 

In a recent unpublished opinion, Silva v CH2M Hill, Inc., the Michigan Court of Appeals has upheld the trial court’s ruling that a lawsuit against multiple truckers and trucking companies for environmental damage was barred by the Michigan Automobile No-Fault Insurance Act. The case involved property damage resulting from chemical contamination. Various contractors were hired to perform environmental clean up at the site of a former chemical plant. The contractors loaded toxic sediments from the site onto trucks for off-site disposal. This process took place from 2000 through 2006.

In 2008, local property owners were informed by the Michigan Department of Environmental Quality that their properties were contaminated. In 2009, those property owners learned that the contamination was tied to the chemical plant site, and in 2010, they filed a lawsuit against the contractors, and subsequently amended their complaint to add the truckers. The property owners claimed that the truckers was that they negligently hauled the contaminated sediments, and failed to prevent chemical waste from spilling onto the streets, from where they were washed onto the property owners’ properties.

After concluding that the truckers possessed the automobile insurance required by MCL 500.3101 of the No-Fault Act, the Court noted that MCL 500.3135(3) operated to abolish tort liability arising from the ownership, maintenance or use of a motor vehicle. In response, the property owners argued that the truckers did not “accidentally” damage their property, since their actions were continuous and occurred frequently. They argued that for this reason the truckers were not entitled to rely upon the immunity afforded under MCL 500.3135(3).

The Court of Appeals acknowledged that Michigan’s No-Fault Act does not abolish tort liability for harm which a person intentionally causes to persons or property. MCL 500.3135(3)(a); Gray v Chrostowski, 298 Mich App 769, 778 (2002). However, the property owners did not plead in their complaint, or present evidence, that the truckers had intentionally damaged their properties. Instead, they only argued that the truckers must have known that they were damaging the property because their actions were continuous and occurred frequently. The Court held that conduct which is “willful or wanton” is not “intentional harm” under the No-Fault Act. American Alternative Ins. Co., Inc., v York, 470 Mich 28, 32 (2004).

Instead, pursuant to the No-Fault Act, the test for establishing that conduct was “intentional” requires that the actor both intend to cause the act, and also intend that the act cause harm. Hicks v Vaught, 162 Mich App 438, 440 (1987). Because the property owners had failed to present any facts indicating that the truckers had intended to cause damage to their property, they had failed to establish an exception to the abolishment of tort liability under MCL 500.3135(3).