Cullender v. BASF Wyandotte Corp. , 146 Mich. App. 423 ( 1985 )

146 Mich. App. 423 (1985) 381 N.W.2d 737

CULLENDER
v.
BASF WYANDOTTE CORPORATION

Docket Nos. 69779, 70323.

Michigan Court of Appeals.

Decided October 11, 1985.

Lakin, Worsham & Victor, P.C. (by Larry A. Smith), for plaintiff.

Cummings, McClorey, Davis & Acho, P.C. (by Gerald C. Davis and Kenneth A. Slusser), for BASF Wyandotte Corporation.

Clark, Klein & Beaumont (by David M. Hayes, Charles D. Bavol, and Kathi A. Kuehnel), for Hoover Chemical & Ballbearing Corporation.

Kohl, Secrest, Wardle, Lynch, Clark & Hampton (by Marcia Jobe and Roger F. Wardle), for Dow Chemical Company.

Before: R.M. MAHER, P.J., and HOOD and R.B. MARTIN,^[*] JJ.

PER CURIAM.

Plaintiff filed an amended complaint alleging that defendants were liable to plaintiff under theories of wrongful death and breach of warranty for the death of plaintiff's decedent, Everett N. Cullender. The circuit court granted accelerated judgment in favor of defendants on the first count, finding that the statute of limitations barred this claim. The court denied a similar motion on the second count, however, after concluding that this cause of action was not time-barred. Plaintiff appeals from the first order; defendants BASF and Hoover have cross-appealed from the court's second order.

In the amended complaint and subsequent pleadings, plaintiff alleged the following facts as foundation for both claims against defendants. Plaintiff's decedent was exposed to the chemical acrylonitrile, AN, through his employment until June 27, 1978. The chemical was contained in plastic supplied by defendants BASF and Dow Chemical Company which was, in turn, incorporated into seat cushions fabricated by defendant Hoover. On August 22, 1977, Mr. Cullender was found to have a colonic tumor which was found, on June 26, 1978, to be cancerous. Sometime in 1980, Mr. Cullender discovered through his own research and investigation that AN was exuded by the materials used in his employment and, apparently, that inhalation or ingestion of AN causes cancer of the colon. Prior to this discovery, Mr. Cullender had had no knowledge that these conditions could cause or contribute to colonic cancer. At some point prior to June 24, 1981, Mr. Cullender developed cancer in both lungs which was allegedly found to be consistent with colonic origin. Plaintiff and Mr. Cullender subsequently filed suit against defendants on June 24, 1981. On April 16, 1982, Mr. Cullender died from the cancer allegedly caused by defendants' products.

Plaintiff's first count, entitled "Wrongful Death", was based on the underlying theory of defendants' negligence in their roles as manufacturers and suppliers of the products which caused Mr. Cullender's death. The trial court ruled that the period of limitation for this action began to run on the day Mr. Cullender discovered he had a tumor in his colon, August 22, 1977, and that it had already barred any action by Mr. Cullender prior to his death. The court then ruled that the wrongful death statute, MCL 600.2922; MSA 27A.2922, did not revive an already-lapsed cause of action upon the death of the injured party. On appeal, plaintiff argues that the cause of action for wrongful death did not accrue until Mr. Cullender died. Plaintiff also argues that even if this is not true, the cause of action could not have accrued until Mr. Cullender learned that there might be a connection between the cancerous tumor and defendants' products. We find that plaintiff's first contention has been disposed of by the Supreme Court in Hawkins v Regional Medical Laboratories, PC, 415 Mich 420, 436; 329 NW2d 729 (1982), in which the majority "expressly [held] that in all actions brought under the wrongful death statute, the limitations period will be governed by the provision applicable to the liability theory of the underlying wrongful act". This holding is binding on this Court despite the fact that it is technically dictum. Detroit v Michigan Public Utilities Comm, 288 Mich 267, 299-300; 286 NW 368 (1939). However, we also find that plaintiff's underlying cause of action for products liability based on negligence did not accrue until Mr. Cullender either discovered or, through the exercise of reasonable diligence, should have discovered that he had a possible cause of action. In so holding, we follow this Court's opinion in Bonney v Upjohn Co, 129 Mich App 18, 24; 342 NW2d 551 (1982), lv den 419 Mich 868 (1984). In Bonney, this Court examined the development and application of the "discovery rule" in Michigan and found that the rule had been applied previously in a number of products liability actions. The Bonney Court also examined and rejected the defendant's claim that the Supreme Court's decision in Connelly v Paul Ruddy's Equipment Repair & Service Co, 388 Mich 146; 200 NW2d 70 (1972), should be interpreted so as to find that a claim accrues when the four "Connelly" elements are in place. Bonney, supra, 129 Mich App 28. This analysis is contradicted by the majority opinion in Larson v Johns-Manville Sales Corp, 140 Mich App 254, 265-267; 365 NW2d 194 (1985). However, after examining both Bonney and Larson, we believe that Bonney represents the better approach and consequently adopt its reasoning. We, therefore, find that the trial court erred by granting defendants' motion for accelerated judgment on plaintiff's wrongful death claim.

In their cross-appeal, defendants BASF and Hoover argue that the trial court improperly denied their motion for accelerated judgment against plaintiff's second count, a products liability claim based on breach of warranty. Defendants contend that the three-year period of limitation for products liability actions, MCL 600.5805(9); MSA 27A.5805(9), began to run on August 22, 1977, when Mr. Cullender learned he had a colonic tumor, and that the statute of limitations therefore barred plaintiff's claim as of August 22, 1980. We disagree for the reasons stated in our discussion of the first issue. We further find that the "discovery rule" contained in MCL 600.5833; MSA 27A.5833 should be construed together with MCL 600.5805(9); MSA 27A.5805(9) to determine the accrual date of causes of action for products liability based on breach of implied warranty. The trial court's denial of defendants' motion for accelerated judgment on this issue is affirmed.

Reversed in part; affirmed in part. Remanded to the trial court for further proceedings not inconsistent with this opinion.

NOTES

[*] Retired circuit judge, sitting on the Court of Appeals by assignment.