By Nick Smith
Gongwer News Service
A divided Court of Appeals panel ruled Thursday that a lawsuit from the city of Benton Harbor against the state can proceed and the Court of Claims properly denied the Department of Environment, Great Lakes and Energy’s motion for summary disposition in a case involving lead in the city’s drinking water.
In 2-1 unpublished per curiam opinion issued Thursday in Rosenbaum v. EGLE (COC Docket No. 21-000246) written by Judge Daniel Korobkin and cosigned by Judge Allie Greenleaf Maldonado, it was ruled that the Court of Claims properly considered the plaintiff’s allegations and properly concluded that the defendants’ evidence did not allow the questions of fact that came from the plaintiffs’ claims.
The majority also ruled that the Court of Claims properly denied the defendants’ motion for summary disposition because the plaintiffs made allegations constituting the defendants’ fraudulent concealment of their claims, which the defendants’ evidence did not contradict.
The case stems from consolidated class-action lawsuits filed in the wake of the high levels of lead in Benton Harbor’s drinking water.
High levels of lead were detected in the city’s drinking water in the summer of 2018, and EGLE sent a notice in October of that year to the city of an Action Level Exceedance outlining the required city response.
Additional notices were issued during 2019 and 2020 following further testing of city water samples. The U.S. Environmental Protection Agency awarded the city federal grant monies to replace lead service lines.
The plaintiffs in an amended complaint on Dec. 5, 2022, alleged that the state undertook decisions that led to the people of the city to drink and use unsafe drinking water contaminated by lead, adding that despite the corrosion control efforts EGLE was using were not working, they were continued.
Plaintiffs further alleged that the state misled residents about the health risks posed by the lead-contaminated water and were not informed of the water being unsafe for drinking as well as for cooking and bathing until an executive order was issued by Gov. Gretchen Whitmer on Oct. 14, 2021, outlining such a declaration.
The plaintiffs raised claims under the Constitution, those being a violation of the substantive due process right of bodily integrity against the defendants and an uncompensated taking of property against EGLE and Eric Oswald, the department’s Drinking Water and Environmental Health Division director.
Before discovery was closed, the defendants moved for summary disposition, arguing that the lawsuits were barred because the plaintiffs failed to file complaints or notices of intent within six months are their claims accrued, as required under MCL 600.6431(4).
The defendants argued that the plaintiffs should have discovered their claims more than six months before they filed suit due to the information distributed by the city and the state as well as ongoing media coverage during that time.
To this, the plaintiffs argued that the accrual depended on when the tortious conduct and harm had occurred, stating that their claims accrued not when they first consumed lead-contaminated water but at some time after 2018 due to gradual injury from the water.
Further, the plaintiffs alternatively argued that the fraudulent concealment exception applied to toll the period of limitations.
The defendants sought dismissal, stating that the plaintiffs had failed to present any evidence to rebut their evidence contradicting the plaintiffs’ allegations. They also argued that they took no affirmative actions to conceal potential claims from the plaintiffs.
In denying the motion for summary disposition, the Court of Claims stated that the defendants’ argument that the plaintiffs must provide evidence to contradict the documents provided by the defendants’ motion for summary disposition confused two separate parts of statute in making its motion.
The Court of Claims, as to the date of accrual of the claims, found that despite the defendants having presented some evidence that potentially contradicted some of the plaintiffs’ allegations, questions of fact remained regarding when the claims accrued.
In its Thursday ruling, the appeals panel agreed with the lower court, citing past precedent that aligned with the ruling from the Court of Claims.
“In the present cases, we conclude that the Court of Claims properly considered the evidence that defendants presented and determined that the evidence did not fully contradict plaintiffs’ contentions that their claims were not time barred,” Korobkin wrote. “Because the trial court considered the evidence presented in the proper context of whether it eliminated the questions of fact presented by plaintiffs’ allegations, the court properly applied the MCR 2.116(C)(7) standard.”
The majority also disagreed with the defendants’ argument over the plaintiffs’ claims being time barred and that the fraudulent concealment exception does not apply.
“Because questions of fact remained regarding whether defendants’ fraudulent concealment tolled plaintiffs’ claims, the Court of Claims properly denied defendants’ motion for summary disposition,” Korobkin wrote.
In a partially dissenting opinion written by Judge Christopher Murray, he concurred with the majority on the conclusion regarding the denial of the defendants’ motion for summary disposition.
However, he stated that the trial court’s order denying the defendants’ motion as to the inverse condemnation claim made in the case should be reversed and that the claim accrued more than six months before the filing by any of the complainants and therefore was barred under statute.
Murray wrote that unlike the Flint water crisis cases, there was “widespread notice and coverage about the ALEs (and attempts to remedy the problems), all of which put the public (banks and prospective home purchasers) on notice about the lead water entering the pipes in certain Benton Harbor homes.”
“Although plaintiffs may not have had a reason to know the water could cause bodily injury until 2021, because so much of that is dependent on how much lead a person is exposed to, and other individualized concerns as to how a person’s body reacts (if at all) to the lead, this does not hold true for the inverse condemnation claim,” Murray wrote. “As to the time of the first ALE in 2018, plaintiffs knew or should have known that the service lines were damaged to some degree by lead, as it was publicly disclosed that the lead was in the pipes of affected homes, and that it was continuing to occur.”
Gongwer News Service
A divided Court of Appeals panel ruled Thursday that a lawsuit from the city of Benton Harbor against the state can proceed and the Court of Claims properly denied the Department of Environment, Great Lakes and Energy’s motion for summary disposition in a case involving lead in the city’s drinking water.
In 2-1 unpublished per curiam opinion issued Thursday in Rosenbaum v. EGLE (COC Docket No. 21-000246) written by Judge Daniel Korobkin and cosigned by Judge Allie Greenleaf Maldonado, it was ruled that the Court of Claims properly considered the plaintiff’s allegations and properly concluded that the defendants’ evidence did not allow the questions of fact that came from the plaintiffs’ claims.
The majority also ruled that the Court of Claims properly denied the defendants’ motion for summary disposition because the plaintiffs made allegations constituting the defendants’ fraudulent concealment of their claims, which the defendants’ evidence did not contradict.
The case stems from consolidated class-action lawsuits filed in the wake of the high levels of lead in Benton Harbor’s drinking water.
High levels of lead were detected in the city’s drinking water in the summer of 2018, and EGLE sent a notice in October of that year to the city of an Action Level Exceedance outlining the required city response.
Additional notices were issued during 2019 and 2020 following further testing of city water samples. The U.S. Environmental Protection Agency awarded the city federal grant monies to replace lead service lines.
The plaintiffs in an amended complaint on Dec. 5, 2022, alleged that the state undertook decisions that led to the people of the city to drink and use unsafe drinking water contaminated by lead, adding that despite the corrosion control efforts EGLE was using were not working, they were continued.
Plaintiffs further alleged that the state misled residents about the health risks posed by the lead-contaminated water and were not informed of the water being unsafe for drinking as well as for cooking and bathing until an executive order was issued by Gov. Gretchen Whitmer on Oct. 14, 2021, outlining such a declaration.
The plaintiffs raised claims under the Constitution, those being a violation of the substantive due process right of bodily integrity against the defendants and an uncompensated taking of property against EGLE and Eric Oswald, the department’s Drinking Water and Environmental Health Division director.
Before discovery was closed, the defendants moved for summary disposition, arguing that the lawsuits were barred because the plaintiffs failed to file complaints or notices of intent within six months are their claims accrued, as required under MCL 600.6431(4).
The defendants argued that the plaintiffs should have discovered their claims more than six months before they filed suit due to the information distributed by the city and the state as well as ongoing media coverage during that time.
To this, the plaintiffs argued that the accrual depended on when the tortious conduct and harm had occurred, stating that their claims accrued not when they first consumed lead-contaminated water but at some time after 2018 due to gradual injury from the water.
Further, the plaintiffs alternatively argued that the fraudulent concealment exception applied to toll the period of limitations.
The defendants sought dismissal, stating that the plaintiffs had failed to present any evidence to rebut their evidence contradicting the plaintiffs’ allegations. They also argued that they took no affirmative actions to conceal potential claims from the plaintiffs.
In denying the motion for summary disposition, the Court of Claims stated that the defendants’ argument that the plaintiffs must provide evidence to contradict the documents provided by the defendants’ motion for summary disposition confused two separate parts of statute in making its motion.
The Court of Claims, as to the date of accrual of the claims, found that despite the defendants having presented some evidence that potentially contradicted some of the plaintiffs’ allegations, questions of fact remained regarding when the claims accrued.
In its Thursday ruling, the appeals panel agreed with the lower court, citing past precedent that aligned with the ruling from the Court of Claims.
“In the present cases, we conclude that the Court of Claims properly considered the evidence that defendants presented and determined that the evidence did not fully contradict plaintiffs’ contentions that their claims were not time barred,” Korobkin wrote. “Because the trial court considered the evidence presented in the proper context of whether it eliminated the questions of fact presented by plaintiffs’ allegations, the court properly applied the MCR 2.116(C)(7) standard.”
The majority also disagreed with the defendants’ argument over the plaintiffs’ claims being time barred and that the fraudulent concealment exception does not apply.
“Because questions of fact remained regarding whether defendants’ fraudulent concealment tolled plaintiffs’ claims, the Court of Claims properly denied defendants’ motion for summary disposition,” Korobkin wrote.
In a partially dissenting opinion written by Judge Christopher Murray, he concurred with the majority on the conclusion regarding the denial of the defendants’ motion for summary disposition.
However, he stated that the trial court’s order denying the defendants’ motion as to the inverse condemnation claim made in the case should be reversed and that the claim accrued more than six months before the filing by any of the complainants and therefore was barred under statute.
Murray wrote that unlike the Flint water crisis cases, there was “widespread notice and coverage about the ALEs (and attempts to remedy the problems), all of which put the public (banks and prospective home purchasers) on notice about the lead water entering the pipes in certain Benton Harbor homes.”
“Although plaintiffs may not have had a reason to know the water could cause bodily injury until 2021, because so much of that is dependent on how much lead a person is exposed to, and other individualized concerns as to how a person’s body reacts (if at all) to the lead, this does not hold true for the inverse condemnation claim,” Murray wrote. “As to the time of the first ALE in 2018, plaintiffs knew or should have known that the service lines were damaged to some degree by lead, as it was publicly disclosed that the lead was in the pipes of affected homes, and that it was continuing to occur.”
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