Henry v Dow Revisited
In Henry v Dow Chemical 2017 WL 239069, the Michigan Court of Appeals addressed the application of the statute of limitations to claims arising from the presence of dioxin contaminationalong the Tittabawassee River in Saginaw County. The plaintiffs claimed they sustained injuries in 2002 when the MDEQ released a series of bulletins advising residents of proposed cleanup activities. The defendant claimed information about the dioxin contamination was known to the public in the early 1980sand the cause of action accrued in 1984 at the latest. The Court of Appeals held the bulletins issued by the MDEQ in 2002marked the creation of the damageelement necessary to support the plaintiffs’ claims for nuisance and negligence.
The holding of the Court of Appeals was reversed by the Michigan Supreme Court in Henry v Dow Chemical Co., 501 Mich 965 (2018). The Court stated a claim accrues at the time the wrong upon which the claim was based was done regardless of the time when the damage occurred. The claimed “wrong” was the presence of dioxin in the soil of Plaintiffs’ property. Thus, the plaintiffs’ claims accrued the date that dioxin was first present on their property.
In Robinson v MT Clark, Inc. 2018 WL 6252544, in reliance on Dow, the Michigan Court of Appeals dismissed the plaintiff’s claim for ingestion of water contaminated with gasoline constituents. The plaintiff claimed the statute of limitations began to run when she was notified that her well water was contaminated. The Court held the statute of limitations began to run seven years earlier when she moved into her house. At that time, she began to ingest the water that admittedly tasted bad due to contaminants already present in the well. The Court of Appeals agreed that the plaintiff’s claims were time barred.
Similarly, in Burton v Michigan Sugar Company, 2019 WL 1211455, the plaintiffs sued the defendant in 2016 on account of odors emanating from its sugar beet processing plant. While the severity of the odors increased in 2013 [three years before the suit was filed], the evidence showed that noxious odors were being released over a decade before. As such, the Court of Appeals held that plaintiffs’ claims were time barred and ordered that they be dismissed.
It appears that the door opened by the Court of Appeals in Dow is now officially shut.