2 ELR 20001 | Environmental Law Reporter | copyright © 1972 | All rights reserved


Michie v. Great Lakes Steel

Civil Action No. 35019 (E.D. Mich. November 10, 1971)

Plaintiffs are more than 50 residents of Ontario, Canada, and defendants are three corporations located in Wayne County, Michigan. For further facts, see ELR Dig. [180]. Where the effects of defendants' alleged acts is a single, indivisible injury — here illness and property damage caused by air pollution from defendants' plants — and where such injury might not have occurred but for the concurrence of said acts, Michigan law regards the actors as joint tortfeasors, and the amounts claimed each may be added together to meet the requirement of $10,000 jurisdictional amount, even though defendants did not act in concert. Plaintiffs' claims that their injuries were inflicted either intentionally or through negligence amounting to reckless or willful and wanton behavior are here more than "colorable." The punitive damages sought may also be considered in computing the jurisdictional amount.

Counsel for Plaintiffs
Donnelly W. Hadden
Ripple & Chambers
1720 First Federal Building
Detroit, Michigan 48226
(313) WO 1-0130

Counsel for Allied Chemical Corp.
Leslie W. Flemming
Butzel, Eaman, Long, Gust & Kennedy
1881 First National Building
Detroit, Michigan 48226
(313) 963-8142

Counsel for Detroit Edison Company
Richard Ford
Fischer, Sprague, Franklin & Ford
100 Commonwealth Building
Detroit, Michigan 48226
(313) 962-5210

Counsel for Great Lakes Steel Corp.
Edward T. Goodrich
Hill, Lewis, Adams, Goodrich & Tait
3700 Penobscot Building
Detroit, Michigan 48226
(313) 962-6485

[2 ELR 20001]

Keith, J.:

MEMORANDUM OPINION DENYING MOTION TO DISMISS

The complaint in this matter alleges that defendants, in the operation of their respective plants, discharge certain noxious pollutants into the air causing damages to plaintiffs' health and property. Jurisdiction is founded on diversity of citizenship, defendants being citizens of Michigan and plaintiffs of the Province of Ontario, Canada.

The motion to dismiss is based on an argument that the plaintiffs have failed to satisfy the $10,000.00 amount in controversy requirement for diversity actions under 28 U.S.C.A. § 1332. Defendants contend that plaintiffs must satisfy this requirement as between each and every plaintiff and defendant. They argue that there is no joint liability for the acts complained of under Michigan law and thus defendants can not be considered joint tortfeasors and a separate jurisdictional amount must be shown by each plaintiff.

It is also contended that any claim for punitive damages by plaintiffs is "merely colorable" and may not be added to actual damages to arrive at the jurisdictional sum and further that even if allowable it could be claimed only by plaintiffs "individually inasmuch as their claims for actual damages are individual and not joint".

Plaintiffs claim that defendants are jointly liable under Michigan law because the injuries allegedly accruing to plaintiffs are not separable in terms of which act by which defendant caused any of the injuries alleged.

Plaintiffs further argue that punitive or exemplary damages are proper elements in determining the requisite jurisdictional amount.

For reasons that follow this court is of the opinion that the requirements of 28 U.S.C.A. § 1332 are satisfied in the instant matter.

It is clear that Michigan law is controlling on the question of whether the defendants may be held jointly liable for the allegedly tortious conduct and on the question of whether punitive damages may be included in the computation of the jurisdictional amount. Erie R.R. v. Thompkins, 394 U.S. 64.

Defendant's position is that they are not jointly liable for the alleged injuries to plaintiffs on the theory that the alleged injuries to the plaintiffs are not inseparable, and the acts of the alleged tortfeasors are separable. They cite Cooley, Torts (4th ed), wherein it is stated that merely because different parties pollute the atmosphere, that is commit separate wrongs, there is no reason why a plaintiff should be allowed recovery even though the separate wrongs culminate in an injury to plaintiff, responsibility for which cannot be divided among the various tortfeasors.

This court is of the view that this is not the state of the law in Michigan with respect to air pollution. In the absence of any Michigan cases on point, analogous Michigan cases in the automobile negligence area involving questions of joint liability after the simultaneous impact of vehicles and resultant injuries, are instructive.

In Watts v. Smith, 375 Mich. 120, quoting Meier v. Holt, 347 Mich 430, the Michigan Supreme Court said:

Although it is not always definitely so stated, the rules seem to have become generally established that, although there is no concert of action between tort-feasors, if the cumulative effects of their acts is a single indivisible injury which it cannot certainly be said would have resulted but for the concurrence of said acts the actors are to be held liable as joint tort-feasors.

In Maddux v. Donaldson, 362 Mich. 425 the Michigan Supreme Court cites Landers v. East Texas Salt Water Disposal Company, 151 Tex. 251, 248 S.W.2d 731, a pollution case, in support of the above stated proposition. The court indicated that

. . . [i]t is clear that there is a manifest unfairness in 'putting on the injured party the impossible burden of proving the specific shares of harm done by each. . . . Such results are simply the law's callous dullness to innocent sufferers. One would think that the obvious meanness of letting wrongdoers go scot free in such cases would cause the courts to think twice and to suspect some fallacy in their rule of law'.

Plaintiffs contend that the Maddux, id, and Watts, supra, language applies here since there is no possibility of dividing the injuries herein alleged to have occurred and that it is impossible to judge which of the alleged tortfeasors caused what harm.

It is the opinion of this court that the rule of Maddux, supra, and Landers, supra, cited therein is the better, and applicable rule in this air pollution case. Plaintiffs will be allowed to aggregate their claims in order to satisfy the jurisdictional amount requirement because this court finds that the alleged injuries create a common and undivided interest among the several plaintiffs, Neville v. Delta Insurance Co., D.C. Minn. 1968, 45 F.R.D. 345, and that defendants, should liability be proven, are joint tortfeasors.

It is a further finding of this court that the punitive damages alleged by plaintiffs are also properly added to the actual damages and may be considered in the computation of the jurisdictional amount. It is clear that if the state where the federal court sits allows the recovery of exemplary damages these damages may be included. Bell v. Preferred Life Assurance Society, 320 U.S. 238. In Michigan exemplary damages may be recovered ". . . when injuries are inflicted intentionally or occur through negligence amounting to reckless or willful and wanton behavior"; Ross v. Legget, 61 Mich 445, (1886); See also, Fleischer v. Buccilli, 13 Mich. App. 135, (1968); Oppenhuizer v. Wennersten, 2 Mich App. 288 (1966). Plaintiffs' pleadings allege such behavior and their claim does not fall within the "merely colorable" category condemned in St. Paul Mercury Indemnity Company v. Red Cab [2 ELR 20002] Co., 333 U.S. 283.If plaintiffs can sustain the allegations made in the briefs and pleadings, punitive damages may be assessed by the trier of fact.

Defendants' motion to dismiss is denied.


2 ELR 20001 | Environmental Law Reporter | copyright © 1972 | All rights reserved