Gary Henry v. Dow Chemical Company, 328716

Background

Plaintiffs (Gary and Kathy Henry) sued Dow Chemical alleging dioxin contamination of their riverfront property in the Tittabawassee River floodplain, asserting negligence and nuisance and claiming property devaluation and loss of use.
Dioxin in the river and floodplain was identified in regulatory and public sources as early as the 1970s–1980s; EPA, state studies, media, and warnings had connected Dow’s Midland plant to contamination decades earlier.
In 2001–2002 the Michigan Department of Environmental Quality (MDEQ) confirmed elevated dioxin in floodplain soils and issued a 2002 bulletin/public notice about phase I sampling results.
Plaintiffs filed this action in 2003; defendant later moved for summary disposition under MCR 2.116(C)(7) arguing the claims were time-barred by the three-year limitation in MCL 600.5805(10).
The trial court denied summary disposition, ruling accrual occurred in February 2002 when the MDEQ bulletin was published and plaintiffs’ damages (loss of use/devaluation) first became legally cognizable.
Judge Gadola (dissent) reviews the accrual issue de novo and argues the 2002 MDEQ notice did not create the injury; accrual should be when dioxin actually reached plaintiffs’ property, regardless of when damages were discovered, so the trial court erred.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
When did the statute of limitations begin to run for plaintiffs’ property-damage claims?	Accrual occurred in Feb 2002 when MDEQ published sampling results creating the damages element (loss of use, devaluation).	Accrual occurred when the harm (dioxin deposition on plaintiffs’ land) first occurred, which may be decades earlier; thus claims are time-barred.	Dissent: Trial court erred; accrual is when plaintiffs were actually harmed (when dioxin reached their property), not when MDEQ published results; remand to determine accrual date.
Does the MDEQ 2002 bulletin constitute the ‘wrong’ or ‘harm’ that starts the limitations period?	Bulletin created cognizable damages by restricting use and depressing value, so it marked accrual.	Bulletin merely revealed/confirmed damage; it did not cause the contamination and cannot start accrual.	Dissent: Bulletin only provided discovery of damage; it did not cause the wrong and therefore did not trigger accrual.
Is the common-law discovery rule or continuing-violation doctrine available to toll accrual?	Plaintiffs implicitly rely on delayed discovery to argue timeliness.	Defendant argues statutory accrual controls; discovery rule and continuing violations are not recognized to extend accrual.	Cites precedent rejecting discovery/continuing-violation tolling; accrual governed by statute—harm date, not discovery.
Did the trial court properly deny summary disposition under MCR 2.116(C)(7) on limitations grounds?	Trial court: denial proper because plaintiffs filed within three years of 2002 MDEQ bulletin.	Defendant: denial improper because claims accrued earlier and are barred.	Dissent: Denial was erroneous as a matter of law if accrual predates 2000; case remanded to determine actual harm date; defendant must show accrual was >3 years before filing to prevail.

Key Cases Cited

Trentadue v Buckler Automatic Lawn Sprinkler Co, 479 Mich 378 (statutory accrual occurs when plaintiff is harmed, not when defendant acted)
Stephens v Dixon, 449 Mich 531 (elements present, including damage, define accrual)
Connelly v Paul Ruddy's Equip Repair & Service Co, 388 Mich 146 (once elements present claim accrues; later damages do not create new cause of action)
Garg v Macomb Co Community Mental Health Servs, 472 Mich 263 (Michigan rejects continuing-violation doctrine for tolling limitations)
Marilyn Froling Revocable Living Trust v Bloomfield Hills Country Club, 283 Mich App 264 (discussion of accrual and damages timing)
RDM Holdings, Ltd v Continental Plastics Co, 281 Mich App 678 (standard for reviewing documentary evidence on MCR 2.116(C)(7) motion)