Pollution Exclusion - Policy Definition

In this declaratory action, a commercial general liability insurer was improperly granted summary disposition on the basis of a pollution exclusion clause in a policy issued to a furnace duct cleaning company.

Although the pesticide triclosan was the active ingredient in the sanitizing solution that allegedly injured the homeowners, whose furnace ducts were serviced by the cleaning company, the policy does not define pesticides as pollutants.

"Instead, the defining characteristic of a 'pollutant' under this policy is that it is an 'irritant' or 'contaminant.'"

The insurer did not prove triclosan was an "irritant" or "contaminant." The cleaning company showed that the triclosan was used as intended and is not generally expected to cause harmful effects.

The cleaning company is owed coverage under the policy.

Lawyers Weekly

Medical Malpractice - Expert Witness - Qualification

Plaintiff's medical malpractice case was correctly dismissed when his expert witness was unable to produce literature to buttress his opinion that the existing standard of care when plaintiff suffered a stroke included administering a controversial medication.

"Where there is controversy among a scientific community, a methodology may be the standard of care when it is supported by 'evidence-based science.'"

The trial court correctly determined that plaintiff's expert "was unable to demonstrate that his articulation of the standard was generally accepted or was supported by strong science methods."

Subrogation Action - No Duty Owed

This matter is before the Court on Motions for Summary Disposition by Defendants Better Housing, Parkhurst Homes, Pinch Construction and Wayne Pinch. The Court heard oral arguments and took the matter under advisement. The Court, having reviewed the applicable law and being fully advised in the premises, now issues its Opinion and Order.

This subrogation action arises from a fire loss which occurred on March 7, 2007 at the home owned by the Subrogors and insured by Plaintiff. Plaintiff alleges that the fire ignited in the enclosure of the chimney area near the second level of the house and resulted in substantial damage to the house and contents. Plaintiff paid out $409,057.82 under the insurance policy. Plaintiff filed the instant lawsuit on January 22, 2008, to recover the money from Defendants alleging that they were responsible for designing, constructing, altering, repairing or manufacturing the fireplace. The Subrogors purchased the home in 2006 and are the third owners of the subject house. The subject house was manufactured by Defendant Active Homes Group. Defendant Better Homes d/b/a Parkhurst Homes sold the subject house to its original owners in 2001. The Pinch Defendants were hired by the original owners to build the foundation for the house and to connect the utilities. Defendant Active Homes placed the house on the foundation and installed the chimney pipe. Documentation clearly shows that Longo Construction was hired to do the trim work and build the chimney chase. Plaintiff's Complaint alleged Negligent Design and Manufacture, Breach of Warranty and Negligence. The Court notes that Plaintiff has obtained a Default Judgment against Defendant Active Homes. The remaining Defendants seek dismissal of the Complaint.

The Court finds that summary disposition is appropriate because Plaintiff has failed to submit any evidence that establishes that these Defendants were in any way connected to the design, installation or repair of the fireplace, pipe or chimney. In addition, the Court finds that Defendants did not owe Plaintiff or its insured any contractual or common law duty. Finally, the Court finds that Defendants properly identified Longo Construction as a potential party at fault on March 20, 2008. Accordingly,

IT IS HEREBY ORDERED that Defendants' Motions for Summary Disposition pursuant to MCR 2.116(C)(10) are GRANTED.

IT IS HEREBY ORDERED that Defendants' Request for Sanctions pursuant to MCR 2.114 is DENIED.

This resolves the last pending claim and closes the case.

IT IS SO ORDERED.

Denise Langford Morris

'Furtherance of Justice' Applies to NOI Mistakes

The Michigan Court of Appeals has ruled that medical malpractice pleadings may be amended "in the furtherance of justice" under MCL 600.2301 to comply with notice-of-intent timing requirements in MCL 600.2912b(1).

The ruling reversed a trial court's dismissal of a medical malpractice complaint that had been filed too early by one day.

In doing so, the Court of Appeals extended the Michigan Supreme Court's decision in Bush v Shabahang (Lawyers Weekly No. 06-70788, 58 pages).

The Bush decision relied on the "furtherance of justice" language in MCL 600.2301 to allow "cure" of defects in a medical malpractice notice of intent (NOI).

The Court of Appeals decision is Zwiers v Growney (Lawyers Weekly No. 07-71575, 8 pages).

In Zwiers, the plaintiff filed her complaint and affidavit of merit one day before the 182-day period following the service of her NOI.

Defendant moved for summary disposition, citing Burton v Reed City Hosp Corp (Lawyer's Weekly No. 06-054488, 30 pages), which held that a complaint filed before the notice period ended did not toll the statute of limitations.

Based on Burton, the trial court granted the defendant's motion.

Later, the Bush court held that, under MCL 600.2301, a court can "disregard errors or defects" in documents and proceedings if two factors are met: 1) no "substantial right of a party is implicated"; and 2) the cure must be "in furtherance of justice."

In order to meet the second part of the test, the party must have made "a good-faith attempt to comply with content requirements of [the NOI statute]."

Frasier, Brian. 'Furtherance of Justice' Applies to NOI Mistakes. Lawyers Weekly, Vol. 23, No. 51.