Oakwood Homeowners Association, Inc. v. Ford Motor Company

Nos. 27475; 27476 (Mich. Ct. App. August 8, 1977)

ELR Digest

The Michigan Court of Appeals affirms, over strong dissent, a trial court's finding that an air pollution nuisance suit may be maintained as a class action. In 1972, plaintiffs, members of the Association and 20 named plaintiffs who reside in an eight-block area near southwest Detroit, filed a class action suit against four defendants which operate various industrial plants in southwest Detroit and western Wayne County. Plaintiffs sought an injunction under the Michigan Environmental Protection Act, MICH. COMP. LAWS ANN. § 691.1201 et seq., ELR STAT. & REG. 43001, individual damages for private nuisance, and $2.18 million in punitive damages alleging that emissions from defendants' operations damage plaintiffs and their property. The trial court denied defendants' motions to refuse class status and for separate trials, holding that a class action would promote economies of time and uniform consideration of common questions of law.

On appeal, defendants claim that common questions and law and fact are overshadowed by issues peculiar to individual plaintiffs. Northview Construction Co. v. St. Clair Shores, 395 Mich. 497, 236 N.W.2d 396 (1975). The court holds, however, that common questions need not predominate over individual issues under the "spurious" class action rule in Michigan. Mich. Gen. Ct. R. 208.1(3) (1963). First, Northview has been repudiated. Northview Construction Co. v. St. Clair Shores, No. 54712 (Mich. Sup. Ct. Dec. 20, 1976) (on rehearing). Second, the Michigan rule need not depend on the federal rule of predominance, former FED. R. CIV. P. 23(a)(3). Furthermore, a common nucleus of operative facts, 7A WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 1778, at 53, exists here, for the question is whether the four defendants violate the law through air pollution, and this issue is common to all class members. Finally, regarding the air pollution allegations, plaintiffs are seeking a common type of relief — damages — and may proceed as a class to that extent.

Defendants claim that class action proceedings will disregard their due process rights to a fair trial. Diamond v. General Motors Corp., 20 Cal. App. 3d 374, 97 Cal. Rptr. 639, 2 ELR 20046 (1971). The class is not so large, however, as to present difficulties of notice and trial, and there is substantial parity of issues regarding air pollution that go to the question of liability. Moreover, a class suit will promote the convenient administration of justice. Bajorek v. Kurtz, 335 Mich. 58, 55 N.W.2d 727 (1952) distinguished.

As to the question of apportioning liability, the court follows Michie v. Great Lakes Steel, 495 F.2d 213, 4 ELR 20324 (6th Cir.), cert. denied, 419 U.S. 997 (1974), in which Canadian plaintiffs were allowed to proceed against seven Detroit area facilities on the ground that the air pollution's synergistic combination made separate trials for damages impossible. Logic in this case dictates that, once liability is shown, the defendants, who are more knowledgeable than plaintiffs about the nature of their emissions, be required to show damage attributable to each particular operation.

The court finally notes that the trial court with aid of counsel will find expeditious yet equitable means of resolving the complexities of this litigation.

Presiding Judge Allen concurs separately only to harmonize his vote with his concurrence in Grigg v. Michigan National Bank, 72 Mich. App. 358, __ N.W.2d __ (1976), which is criticized by the majority.

Judge Holbrook dissents, for reason that the complex law and fact issues require division of the action. Numerous differences exist respectively among defendants' operations, plaintiffs' situations, and plaintiffs' claims. Furthermore, the federal experience with class actions should aid Michigan decisions. Common questions should predominate, and, in this case, individual issues of both liability and damages are paramount. See Boring v. Medusa Portland Cement Co., 63 F.R.D. 78 (D. Pa.), aff'd, 505 F.2d 729 (3d Cir. 1974); City of San Jose v. Superior Court, 525 P.2d 701, 115 Cal. Rptr. 797 (1974). The differences among plaintiffs' situations compel, at the least, a division into separate classes.

The full text of this opinion is available from ELR (37 pp. $4.75, ELR Order No. C-1138).

Counsel for Plaintiffs
Donnelly W. Hadden
1220 Lafayette Bldg., Detroit MI 48226
(313) 964-3535

Counsel for Defendants Ford Motor Co. and Marathon Oil Co.
Leslie W. Fleming
Butzel, Long, Gust, Klein & Van Zile
1881 First National Bldg., Detroit MI 48226
(313) 963-8142

Counsel for Defendant International Salt Co.
Fred Mallender II
Dahlberg, Mallender & Gawne
1022 Ford Bldg., Detroit MI 48226
(313) 962-3674

Counsel for Defendant Edward H. Levy Co.
Robert A. Fineman, Roger Wardoe
Honigman, Miller, Schwartz & Cohn
2290 First National Bldg., Detroit MI 48226
(313) 962-6700

Riley, J.; Allen, P.J., concurs; Holbrook, J., dissents

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]