Lovall GILLIAM and Kansas Gilliam, Plaintiffs-Appellees,
v.
HI-TEMP PRODUCTS INC., Defendant-Appellant, and
A Best Products Co., Adience Inc., A. J. Baxter Co., Allen Bradley Co. Inc., Alliance Machine Co., Allis Chalmers Product Liability Trust, Amchem Products Inc., A. P. Green Refractories Co., Argus Supply Co., Armstrong World Ind. Inc. Asbestos Claims Mgmt. Corp., Bw/Ip International Inc., Chicago Firebrick Co., Coon Devisser Co., Corhart Refractories Co., Crown Cork & Seal Co., Detrex Corp., Dresser Industries, Durabla Manufacturing Co., Durametallic Corp., Dynamic Seals Inc., Eaton Corp., F B Wright Co., Flexitallic Gasket Co. Inc., Foseco Inc, Freeport Brick Co., Furon Co., Gaf Corp., Garlock Inc., General Electric Co., General Refractories Co., Georgia Pacific Corp., Goodyear Tire & Rubber Co., Goulds Pumps Inc., Hercules Chemical Corp., Imo Industries Inc., Ingersoll-Rand Co., Itt Industries Inc, Kaiser Aluminum & Chemical, K & C Supply Inc., Kennedy Hydraulics, Manitowac Cranes Inc., Mcgraw Edison Co., Midland Ross Corp., Mobil Oil Corp., Morgan Engineering System, North American Refract Co., Owens Corning Inc., Plibrico Co., Quigley Co. Inc., Radiator Specialty Co., Rapid-American Corp., Rex/Roto Corp., Ric-Wil Inc., Rome Cable Corp., Rust International Inc., Sealite Inc., Siemens Corp., Southern Urethane & Packing, Standard Fuel Engineering, Stockham Valve & Fittings, Thiem Corp., United States Gypsum Co., Walworth Co., Westinghouse Electric Co., Witco Corp., York Rubber Co., and Michigan Medical Counsel, Defendants.
Charles R. Mullett and Phylliss Mullett, Plaintiffs-Appellees, and
Michigan Medical Participants, Intervening Plaintiff,
v.
Hi-Temp Products Inc f/k/a Asbestos Specialties Co., Defendant-Appellant, and
Acme Insulations Inc., Alexander Stafford Corp, Allis Chalmers Product Liability Trust, Amchem Products Inc f/k/a Benjamine Foster Co., A. P. Green Industries Inc f/k/a A. P. Green Refractories Co., Asbestos Claims Mgmt. Corp. f/k/a National Gypsum Co., Atlas Turner f/k/a Atlas Asbestos Co., Austin Co., Bay City Hardware Co., Goodrich Corp., Bw/Ip International Inc., Carborundum Co., Cement Asbestos Products Co. f/k/a Capco Pipe Co., Chemprene Inc., Chicago Firebrick Co., Coltec Industries Inc. f/k/a Colt Industries, Crane Co. f/k/a Crane Delaware Co., Crown Cork & Seal Co., Durabla Manufacturing Co., Durametallic Corp, Duro Supply Co., Edward Vogt Valve Co., Excelsior Inc., Flexitallic Gasket Co. Inc., Foster Wheeler Corp., Gaf Corp., Garlock Inc., General Electric Co., General Refractories Co., Goulds Pumps Inc., Harrison Piping Supply Co., Hollinger & Co., Ingersoll-Rand Co., Itt Industries Inc, Jennison Hardware Co., Lunkenheimer Co., Marlo Sealing Co. Inc., Martin Fluid Power Co., Northern Boiler & Mechanical, Parker-Hannifin Corp., Plibrico Co., Radiator Specialty Co., Rapid-American Corp, Riley Stoker Corp., Rockwell International Corp., Sealite Inc., Southern Urethane & Packing, Stockham Valve & Fittings, Sure Seal Products Co., United States Gypsum Co., Wickes Lumber Co., Witco Corp., Yarway Corp. f/k/a Yarmall Waring Corp., Allied Signal Inc., American Standard Inc., A. O. Smith, Borg Warner Corp., Brown Boveri Electric Inc., Carver Pump Co., Chicago Blower Corp., Coon Devisser Co., David Brown Union Pumps Co. f/k/a Union Steam Pump Co., Detroit Pump & Mfg, Dresser Industries, Dynamic Seals Inc., Eaton Corp., Faulkner Construction Co., Fel-Pro Inc., Furmanite American Inc., Furon Co., a/k/a Sepco Corp., Greene Tweed & Co., Hercules Chemical Corp., Honeywell Inc., Imo Industries Inc., Kaiser Aluminum & Chemical, Metropolitan Life Ins., Midland Ross Corp., Peerless Pumps, Pneumo Abex Corp., Standard Fuel Engineering, United States Mineral Prod., Westinghouse Electric Co., Witco Corp., and York Rubber Co., Defendants.
Mary G. Nelson, Personal Representative of the Estate of William E. Nelson, Plaintiff-Appellee, and
Richard R Malone, Intervening Plaintiff,
v.
Hi-Temp Products Inc., Defendant-Appellant, and
Alexander Stafford Corp., Allis Chalmers Product Liability Trust, American Radiator & Standard, American Standard Inc, A. P. Green Industries Inc., Arthur J Peacock & Co., Awmco Inc., Behler Young Co., Goodrich Corp. a/k/a B F Goodrich, Bigelow Liptak Corp., Bw/Ip International Inc., Chicago Blower Corp., Chicago Firebrick Co., Cleaver Brooks Co., Collins & Aikman, Coltec Industries Inc., Consumers Energy Co., Crown Cork & Seal Co., Daubert Chemical Co., Detrex Corp., Detroit Edison, Detroit Stoker Co., Dow Chemical Co., Dresser Industries, Durabla Manufacturing Co., Durametallic Corp., Duro Supply Co., Elof Hannson Inc., Evert Asbestos, Federal Mogul Corp., Ford Motor Co., Garlock Inc., General Electric Co., General Motors Corp, General Refractories Co., Goodyear Tire & Rubber Co., Goulds Pumps Inc., Greene Tweed & Co., Hollinger & Co., Hunter Hughes Inc, Imo Industries Inc., Ingersoll-Rand Co., Jay L. Angel Inc., J. O. Galloup Co., Kaiser Aluminum & Chemical, Lansing Board Of Water & Light, Melrath Gasket Inc., Metropolitan Life Ins., Midland Ross Corp., North American Refract Co., Northern Boiler & Mechanical, Parker-Hannifin Corp., Pfizer Inc., Plibrico Co., Quigley Co. Inc., Rapid-American Corp., Rex/Roto Corp., Richard Klinger Inc., Riley Stoker Corp., Rust International Inc., Sealite Inc., Southern Urethane & Packing, Standard Fuel Engineering, Townsend & Bottum Inc, United States Mineral Prod., Westinghouse Electric Co. and Witco Corp., Defendants.
Theodore N. Tompkins and Sharon Tompkins, Plaintiffs-Appellees,
v.
Hi-Temp Products Inc. a/k/a Asbestos Specialties Co., Defendant-Appellant, and
A Best Products Co., Acme Insulations Inc., A. J. Baxter Co, Alexander Stafford Corp., Allis Chalmers Product Liability Trust, Amchem Products Inc. a/k/a Benjamine Foster Co., American Standard Inc, A. O. Smith, A. P. Green Industries Inc. a/k/a Green Refractories Co., Asbestos Claims Mgmt. Corp., Atlas Turner a/k/a Asbestos Co., Awmco Inc. a/k/a Asbestos Wood Mfg., Bay City Hardware Co., Beazer East Inc., Behler Young Co., B. F. Goodrich Co., Bigelow Liptak Corp., Bond Supply Co., Bw/Ip International Inc., Carborundum Co., Chicago Firebrick Co., Copes Vulcan Inc, Crane Co. a/k/a Crane Delaware Co., Detroit Pump & Mfg., Dresser Industries, Durabla Manufacturing Co., Durametallic Corp., Duro Supply Co., Dynamic Seals Inc., Ecolaire Inc., Edward Vogt Valve Co., Evert Asbestos, Federal Mogul Corp., Fisher Controls International, Flexitallic Gasket Co. Inc., Flintkote Co., Foster Wheeler Corp., Furmanite American Inc., Gaf Corp., Gage Co., Garlock Inc., General Electric Co., General Refractories Co., Goodyear Tire & Rubber Co., Goulds Pumps Inc., Greene Tweed & Co., Harrison Piping Supply Co, Hercules Chemical Corp, Hollinger & Co., Hunter Hughes Inc, Imo Industries Inc., Ingersoll-Rand Co., Itt Industries Inc., Jay L. Angel Inc., Jennison Hardware Co., J. O. Galloup Co., J. P. Stevens & Co. Inc., Kaiser Aluminum & Chemical, Lamons Metal Gasket Co., Marlo Sealing Co. Inc., Metropolitan Life Ins., Mobil Oil Corp., National Varnish Co., North American Refract Co, Northern Boiler & Mechanical, Owens-Illinois, Parker-Hannifin Corp., Plibrico Co., Quigley Co. Inc., Radiator Specialty Co., Rapid-American Corp., Richard Klinger Inc., Ric-Wil Inc., Riley Stoker Corp., Robertson Ceco Corp., Rockwell International Corp., Schad Boiler Setting Company d/b/a Schad Refractory Construction, Sealite Inc., Service Products Inc., Southern Urethane & Packing, Standard Fuel Engineering, Stockham Valve & Fittings, Sure Seal Products Co., David Brown Union Pump Co., Townsend & Bottum Inc., Turner & Newall PLC, United Conveyor Corp., United States Gypsum Co., Wickes Lumber Co., William Powell Co., Witco Corp., Yarway Corp. a/k/a Yarmall Waring Corp., and York Rubber Co., Defendants.
Court of Appeals of Michigan.
*861 Goldberg, Persky, Jennings & White, P.C. (by James J. Bedortha and Lane A. Clack), Saginaw, for the appellees.
Plunkett & Cooney, P.C. (by Jeffrey C. Gerish), Bloomfield Hills, for the appellant.
Before: WHITBECK, C.J., and MARK J. CAVANAGH and MARKEY, JJ. *857 *858 *859
*860 MARKEY, J.
In each of these consolidated appeals, defendant Hi-Temp Products, Inc., appeals by leave granted the trial court's order denying its motion for summary disposition. Hi-Temp argues that plaintiffs' claims of asbestos-related personal injury are barred by MCL 450.1842a[1] because they were filed beyond the one-year period allowed for the filing of claims after Hi-Temp *862 published notice of its dissolution. We agree and reverse.
I. Summary of Facts and Proceedings
Hi-Temp sold asbestos products. Many individuals have claimed that their exposure to Hi-Temp's products caused asbestos-related diseases. They have sued Hi-Temp frequently and continuously since the mid-1980s. In 1992, Hi-Temp ceased active business operations. Its sole shareholder resolved on October 8, 1993, that Hi-Temp be dissolved and its assets distributed. On October 14, 1993, Hi-Temp filed a certificate of dissolution pursuant to subsection 831(b). The Bureau of Corporations and Securities stamped the certificate filed on October 25, 1993, thereby making the dissolution effective. Subsection 131(3); subsection 804(7); Freeman v. Hi Temp Products, Inc.,
Hi-Temp published a notice of dissolution in the Oakland Press on October 25, 1993,[2] July 3, 1996, and October 20, 1998. Hi-Temp also gave notice of its dissolution through its counsel directly to plaintiffs' counsel on October 15, 1993, and October 21, 1998. MCL 450.1842a(3) essentially provides that all claims against a dissolved corporation are barred unless "the claimant commences a proceeding to enforce the claim against the dissolved corporation within 1 year after the publication date...." Plaintiffs' actions alleging personal injury or death as a consequence of the use of, or exposure to, asbestos in Hi-Temp's products were filed after October 21, 1999. In all cases, Hi-Temp moved for summary disposition, asserting the statutory bar to claims filed more than one year after publication of notice in accordance with § 842a. Plaintiffs argued that they had shown good cause for not presenting their latent claims earlier and that Hi-Temp's insurance coverage was an undistributed asset within the meaning of subsection 851(2), an exception to § 842a.
MCL 450.1851(2) provides: "For good cause shown, and so long as a corporation has not made complete distribution of its assets, the court may permit a creditor who has not delivered his or her claim or commenced a proceeding to enforce his or her claim within the time limits provided in sections 841a and 842a to file the claim or to commence a proceeding within the time as the court directs." Plaintiffs also argued that Hi-Temp was estopped from invoking § 842a because Hi-Temp had failed to provide for payment of its obligations as required by § 855a. In each of these cases, the trial court rejected Hi-Temp's argument and denied summary disposition for the reasons we hereafter summarize.
In Docket No. 238102 (Gilliam), Wayne Circuit Judge Robert J. Colombo, Jr., first rejected plaintiffs' argument that Hi-Temp was estopped by§ 855a to assert the bar of § 842a because § 855a specifically provides: "Provision need not be made for *863 any debt, obligation, or liability that is or is reasonably anticipated to be barred under section 841a or 842a." Judge Colombo reasoned that the Legislature intended § 842a to bar future claims against dissolved corporations, citing Freeman, supra at 96,
Having concluded that § 842a would otherwise bar plaintiffs' claims, Judge Colombo next considered whether under subsection 851(2) "good cause" existed for plaintiffs' delay, and whether Hi-Temp had not completely distributed its assets. Judge Colombo determined that plaintiffs had established "good cause" because plaintiffs could not bring suit until their claims accrued upon discovery, or when plaintiffs should have with reasonable diligence discovered their asbestos-related disease and discovered the causal connection between their disease and Hi-Temp's alleged breach of duty. Moll v. Abbott Laboratories,
Regarding whether Hi-Temp had distributed all its assets, Judge Colombo found most persuasive Nat'l Union Fire Ins. Co. of Pittsburgh, PA v. City Savings FSB,
In Docket No. 238224 (Mullett ), Midland Circuit Judge Paul Clulo also denied Hi-Temp's motion for summary disposition. Judge Clulo concluded:
The court will not repeat the grounds for its decision, which have been stated and restated in a number of Circuit Court decisions in Michigan in recent years. Suffice it to say that the court finds the rationale of the judges in Ernest v. Duro Supply, 96-012998-NP-5, Saginaw County Circuit Court (8/2/2000), and Miller v. Alexander-Stafford Corporation, 99-05792-NP, Gratiot County Circuit Court (12/4/2000), to be persuasive. In addition, this court also finds that the decision in Williams v. Grossman,
In Ernest, a fact situation similar to the instant cases, Saginaw Circuit Judge Leopold P. Borrello found that § 842a did not apply. Judge Borrello reasoned that the purpose of § 842a, to require creditors reasonably expected to file their claims against a dissolved corporation to do so within one year, would not be furthered when the plaintiffs did not realize that their claims existed. For this point, Judge Borrello relied on this Court's finding that the purpose of § 842a's predecessor, § 842, was "`to compel all creditors who may reasonably be expected to file their claims to do so within the prescribed time and to ... [bar] ... the claim upon failure to do so'". In re Dissolution of Esquire Products Int'l, Inc. (On Remand),
In Miller, the other circuit court decision relied on by Judge Clulo, Gratiot Circuit Judge Randy L. Tahvonen concluded that § 842a did not apply to bar the plaintiffs' asbestos claims. Judge Tahvonen concluded that a latent asbestos claim simply did not come within the meaning of "contingent" as used in subsection 842a(3), which provides that "the claim of each of the following claimants is barred" one year after proper notice: "A claimant whose claim is contingent or based on an event occurring after the effective date of dissolution." MCL 450.1842a(3)(c). Judge Tahvonen reasoned:
I don't think the word contingent in section 842[sic] can be read as barring claims which are neither known to the claimant nor which should be known to the claimant. The claimant has no reason to know of the claim, no reasonable person using an objecting [sic] test in the claimant's position would understand the claim exists. It seems to me that that is not a contingent claim.
... A claim the existence of which is hidden, because the development of the cancer doesn't manifest itself until six months after the period otherwise applicable. That is a latent claim. I don't think contingent and latent are the same, and my view is if the Legislature wanted to bar completely latent claims, it, perhaps, could have tried to do so. [Miller, supra, hearing on motion for summary disposition, December 4, 2000, pp. 23-24.]
Although Judge Tahvonen did not find an insurance policy to be an undistributed asset, the court nonetheless concluded that even if § 842a barred the plaintiffs' claims, § 851 "is designed and intended to deal with good cause for filing claims after that period of time, and it seems to me that *865 these latent claims fit that bill." Miller, supra at 25.
In Docket No. 238341 (Nelson ), Bay Circuit Judge William J. Caprathe denied Hi-Temp's motion for summary disposition "for the reasons stated on the record." Judge Caprathe adopted the opinion of Judge Lawrence M. Bielawski in Davenport v. Duro Supply Co, No. 00-4005-NP-B, Bay Circuit Court, May 10, 2001, in which Judge Bielawski found that subsection 851(2) applied to the circumstances these consolidated appeals present. Judge Bielawski noted that this Court has held that § 851 "manifests an intent to repose considerable discretion in the court to control the determination of claims by creditors." Esquire Products, supra at 115,
In Docket No. 238375 (Tompkins), Kalamazoo Circuit Judge William G. Schma denied Hi-Temp's motion on the basis of a ruling the court had issued denying a similar motion by Duro Supply. Judge Schma ruled that the issues concerning whether plaintiffs had good cause under subsection 851(2) for not bringing their claims within one year of the dissolution because their asbestos-related disease had not yet manifested itself and whether Hi-Temp's insurance policy was an asset not completely distributed on dissolution were genuine issues of material fact that precluded summary disposition.
We granted leave to appeal on May 9, 2002, and ordered these appeals consolidated on July 23, 2002.
II. Standard of Review
This Court reviews de novo the interpretation and application of statutes as questions of law. Abbott v. John E Green Co.,
In these consolidated appeals, although Hi-Temp moved for summary disposition under MCR 2.116(C)(3), (7), (8), and (10), its argument on appeal implicates only subrule C(7) (the claim is barred because of immunity granted by law), or C(10) (except with regard to damages, there is no genuine issue concerning any material fact and the moving party is entitled to partial or full judgment as a matter of law). Under MCR 2.116(C)(7), a plaintiff's pleadings are accepted as true and construed in the plaintiff's favor. Abbott, supra. But, the parties may submit documentary evidence that the trial court must consider in deciding whether a material issue of fact exists and, if not, whether the claim is barred by immunity granted by law. Id.; Maiden v. Rozwood,
When interpreting a statute, this Court's primary obligation is to ascertain and give effect to the intent of the Legislature. Gladych v. New Family Homes, Inc.,
III. Analysis
We conclude that plaintiffs' claims are barred when the plain language of § 842a is applied to the undisputed facts of these consolidated appeals. Hi-Temp properly published notice of its dissolution. Plaintiffs' claims are "contingent" within the plain meaning of subsection 842a(3)(c), but they were not filed within one year of publication of notice of dissolution as required by subsection 842a(3). An insurance liability policy is not an asset that a corporation could distribute in the process of winding up its affairs after dissolution. Therefore, it is not an undistributed asset of a corporation that has dissolved and distributed all assets capable of distribution. Accordingly, subsection 851(2) affords no relief from the bar of § 842a even if plaintiffs have "good cause" for not timely filing their claims. Finally, because § 855a plainly states that dissolved corporations need not provide for future contingent claims that will reasonably be barred by either § 841a or § 842a, Hi-Temp may assert the bar of § 842a.
MCL 450.1842a governs publication of notice of corporate dissolution and provides:
(1) A dissolved corporation may also publish notice of dissolution at any time after the effective date of dissolution and request that persons with claims against the corporation present them in accordance with the notice.
(2) The notice must be in accord with both of the following:
(a) Be published 1 time in a newspaper of general circulation in the county where the dissolved corporation's principal office, or if there is no principal office in this state, its registered office, is or was last located.
(b) State that a claim against the corporation will be barred unless a proceeding to enforce the claim is commenced within 1 year after the publication date of the newspaper notice.
(3) If the dissolved corporation publishes a newspaper notice in accordance with subsection (2), the claim of each of the following claimants is barred unless the claimant commences a proceeding to enforce the claim against the dissolved corporation within 1 year after the publication date of the newspaper notice:
(a) A claimant who did not receive written notice under section 841a.
(b) A claimant whose claim was timely sent to the dissolved corporation but not acted on.
*867 (c) A claimant whose claim is contingent or based on an event occurring after the effective date of dissolution.
(4) Notwithstanding subsection (3), a claimant having an existing claim known to the corporation at the time of publication in accordance with subsection (2) and who did not receive written notice under section 841a is not barred from commencing a proceeding until 6 months after the claimant has actual notice of the dissolution. [Emphasis supplied.]
By its plain language, § 842a generally bars claims against a dissolved corporation that has published notice of dissolution unless the suits are brought within one year of publication. This Court has acknowledged that the purpose of the statute is "`to compel all creditors who may reasonably be expected to file their claims to do so within the prescribed time and to ... [bar] ... the claim upon failure to do so'". Esquire Products, supra at 113-114,
Moreover, § 842a is not a statute of limitations; it is part of a legislative scheme intended to avoid the consequences of corporate dissolution at common law. "Statutes relating to the time for bringing an action against a dissolved corporation are not statutes of limitation, but rather corporate survival statutes." Missouri ex rel Nat'l Super Markets, Inc. v. Dowd,
Under the BCA, subject to § 833, or as otherwise provided by court order, a dissolved corporation may sue or be sued in its own name and may carry on businessas if not dissolved. MCL 450.1834; Freeman, supraat 96,
We also reject the reasoning that § 842a is not intended to bar latent claims or claims that could not reasonably be brought within one year of notice of corporate dissolution. The unambiguous language of the statute rebuts such an interpretation. Subsection 842a(3)(c) plainly bars claims that are "contingent or based on an event occurring after the effective date of dissolution." Moreover, the intent of the Legislature to bar claims that are both unknown and that arise after the dissolution of the corporation is shown by subsection 842a(3)(a), which bars a claim by a "claimant who did not receive written notice under section 841a."[5]
Furthermore, the argument that it is patently or inherently unfair to bar plaintiffs' claims must be rejected in light of the plain words of the statute. Neither this Court nor the circuit courts may interpret or apply § 842a using a personal view of the fairness or wisdom of the Legislature's policy decision. Courts must enforce the statute as written. Smith, supra at 430,
We also hold that § 855a does not preclude Hi-Temp from asserting the bar of § 842a. Section 855a of the BCA provides *869 that before distributing its assets to shareholders, a dissolving corporation shall "make provision for its debts, obligations, and liabilities." MCL 450.1855a. Moreover, a dissolving corporation must make a "reasonable estimate" and provide for "those debts, obligations, and liabilities anticipated to arise after the effective date of dissolution." Id. Although the failure to comply with § 855a may give rise to liability, Travelers Ins. Co. v. Jacob C Mol, Inc.,
Plaintiffs, in essence, concede that but for § 851, § 842a would time-bar their claims. Plaintiffs argue that Hi-Temp's products-liability insurance policy is an undistributed asset, and that they have good cause for not timely filing their claims because asbestos-related diseases had not become manifest before the time provided in § 842a expired. Even if we assume that plaintiffs have "good cause" for not filing their claims earlier, we disagree that Hi-Temp's liability insurance policy is an undistributed asset within the meaning of § 851.
MCL 450.1851(2) provides:
For good cause shown, and so long as a corporation has not made complete distribution of its assets, the court may permit a creditor who has not delivered his or her claim or commenced a proceeding to enforce his or her claim within the time limits provided in sections 841a and 842a to file the claim or to commence a proceeding within the time as the court directs. [Emphasis supplied.]
To invoke the discretion of the court under subsection 851(2) three criteria must be fulfilled: (1) the period to submit claims pursuant to §§ 841a and 842a must have expired; (2) the claimant must have had good cause for not timely asserting the claim; and (3) the corporation must have not completely wound up its affairs by completely distributing its assets. Here, criterion one applies because no one disputes, so we assume, that plaintiffs had "good cause" for not timely asserting their claims because no claim accrued until asbestos-related disease manifested itself. But subsection 851(2) cannot apply unless a liability insurance policy Hi-Temp held during its corporate lifetime is an asset the corporation failed to distribute in winding up its affairs after dissolution.
Under the BCA, subsection 851(2) applies only where the dissolved corporation "has not made complete distribution of its assets...." Because the BCA does not define "asset" to either include or exclude third-party liability insurance, we find that an ambiguity exists permitting judicial construction of the statute. "Only where the statutory language is ambiguous may a court properly go beyond the words of the statute to ascertain legislative intent." Sun Valley Foods Co. v. Ward,
*870 MCL 450.1106(4) defines "distribution" for purposes of the BCA as follows:
"Distribution" means a direct or indirect transfer of money or other property, except the corporation's shares, or the incurrence of indebtedness by the corporation to or for the benefit of its shareholders in respect to the corporation's shares. A distribution may be in the form of a dividend, a purchase, redemption or other acquisition of shares, an issuance of indebtedness, or any other declaration or payment to or for the benefit of the shareholders. [Emphasis supplied.]
We recognize that case law exists that suggests an indemnity insurance policy is an asset of a viable corporation. But that is not the case before us. We cannot locate any authority for the proposition that an expired[6] third-party liability policy is property that Hi-Temp could transfer in the process of liquidating its assets. Nor is there any support for the contention that an insurance policy remained an asset of the corporation after existing claims were satisfied during liquidation and the deadline for filing future claims had expired.
Indeed, the contracts of insurance existed to provide indemnification to Hi-Temp in the event it was found liable for a tort claim. See Samuels v. Acme Market,
The cases on which plaintiffs rely to reach the opposite conclusion are inapposite because they do not interpret Michigan's BCA. Plaintiffs rely heavily on Williams v. Grossman, supra, to argue that subsection 851(2) applies. The Williams decision has surface appeal when coupled with the analogy that a dissolved corporation is "dead," and because the plaintiff in Williams was permitted to reopen the closed estate of the decedent to pursue tort recovery against the decedent's automobile liability policy. But on closer examination, the analogy fails because the estate in Williams was not reopened on the basis that an insurance policy was deemed an undistributed asset of the estate.
In Williams, the plaintiff was a passenger in the decedent's vehicle but failed to file a negligence action against the decedent's personal representative before an estate had been opened and then closed. Williams, supra at 76, 81,
Although the probate of an estate has been completed and the estate closed, where a person has an action which by statute may be commenced directly against the personalrepresentative of the decedent without first filing a claim against his probate estate, the administration of the estate is "incomplete" within the meaning of the statute and upon petition the estate may be reopened to provide a suable person so that the action can be commenced. Because the person having the right of action has not filed a claim in the probate proceeding (or, before it was closed, notice of suit pending), recovery of money damages is limited to sources other than assets of the probate estate theretofore distributed, e.g., to sources such as the estate's right of indemnification from an insurer or the obligation of the Motor Vehicle Accident Claims Fund to compensate victims of uninsured drivers. [Id. at 77-78,293 N.W.2d 315 (emphasis supplied).]
To be sure, the Williams Court opined that "a decedent's right to be indemnified under a policy of insurance may be deemed an asset" for the purpose of having an asset with some value to probate. Williams, supraat 85,
In contrast to Williams, the plain language of § 842a specifically bars plaintiffs' claims. Moreover, barring plaintiffs' claims furthers the Legislature's purpose, as indicated by the statutory language, of putting to rest all late-arising claims against a dissolved corporation and bringing finality to corporate dissolution. The Legislature "has created a process whereby a dissolved corporation can bar future claims, thus cutting off the possibility that the corporation's potential liability could never be completely resolved." Freeman, supra at 96,
Plaintiffs' reliance on Nat'l Union, supra, to conclude that Hi-Temp's insurance policy was an "undistributed asset" for purposes of subsection 851(2) is also misplaced. Clearly, the first-party claim of the Resolution Trust Corporation (RTC) for $152 million in losses attributable to fraudulent conduct of bank employees was an asset of the insolvent bank the RTC was administering. So, Nat'l Union is distinguished from the cases at bar because it (1) interpreted federal law, (2) concerned claims and counterclaims of the insured through its successor, the RTC, during the period of winding up the affairs of the insolvent bank, (3) addressed a first-party claim of the insured through its successor, the RTC, for acts and occurrences occurring before insolvency, and (4) represented a substantial value to the insolvent bank (and its creditors). It must be assumed that because the RTC's claims under the insurance policies in Nat'l Union had a potential value of $152 million that the claims could have been sold or transferred. In contrast, no legal authority or factual support has been brought to this Court's attention that Hi-Temp could have sold or transferred for consideration its expired third-party liability insurance policies during its liquidation.
For much the same reasons, Samuels, supra, is distinguishable. Samuels also addressed federal court jurisdiction of a third-party tort claim asserted against an insolvent financial institution when the Resolution Trust Corporation was appointed the receiver.
Further, plaintiffs' reliance on cases interpreting business corporation laws of other states is also unavailing. Plaintiffs rely on Penasquitos, Inc. v. Superior Court of San Diego Co.,
In contrast, although of limited help in interpreting Michigan law, appellate decisions in other jurisdictions interpreting statutes similar to Michigan's BCA have analyzed the issue similarly to this Court. In Blankenship, supra, the plaintiff filed a strict-liability tort action after injuring her hand in a machine manufactured by Demmler Manufacturing. Demmler moved to dismiss because the suit had not been brought within two years of its corporate dissolution as required by Illinois law. Id. at 570, 573,
In addition plaintiffs cite inapposite cases[8] discussing when a successor to corporate assets may also succeed to the corporation's liabilities, a legal question not relevant to the question presented in these consolidated appeals.
Finally, plaintiffs' policy arguments[9] are also unpersuasive because they are not *874 based on the plain language of the statute or a reasonable construction of the ambiguity alleged in the word "asset." It is the Legislature's prerogative to adopt policy, not this Court's. Hanson v. Mecosta Co. Rd. Comm'rs,
IV. Conclusion
The plain language of § 842a, as applied to the undisputed facts in these consolidated appeals, bars plaintiffs' claims against Hi-Temp. Because Hi-Temp properly published notice of its dissolution, plaintiffs were required by subsection 842a(3) to file their claims within one year of the publication of notice of dissolution. Although a liability insurance policy is an asset to a viable corporation and to a corporation in the process of winding up its affairs after dissolution, it is not an asset of a dissolved corporation that has distributed all assets capable of distribution where the period permitted for filing claims has expired. Accordingly, subsection 851(2) provides no relief from the bar of § 842a, even if plaintiffs had "good cause" for not timely filing their claims. Finally, Hi-Temp is not estopped to assert the bar of § 842a because § 855a plainly states that a dissolved corporation need not provide for future contingent claims that will reasonably be barred by either § 841a or § 842a. We reverse and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.
NOTES
Notes
[1] MCL 450.1842a is § 842a of the Business Corporation Act (BCA), MCL 450.1101 et seq. Further reference to the BCA will be by section number.
[2] This Court held in Freeman, supra at 100,
[3] Federal law requires exhaustion of administrative proceedings before a federal court has jurisdiction over claims to assets of any institution for which the Resolution Trust Corporation is appointed the receiver.
[4] MCL 450.1833; MCL 450.1834.
[5] Section 841a bars existing claims against a dissolving corporation upon written notice and failure to commence a proceeding to enforce the claim within ninety days. An" existing claim" is defined as "any claim or right against the corporation, liquidated or unliquidated," but does not include "a contingent liability or a claim based on an event occurring after the effective date of dissolution." MCL 450.1841a(4). Although not necessary to decide these cases, we reject Hi-Temp's argument that the "good cause" exception in subsection 851(2) is limited to creditors existing at the time of corporate dissolution.
[6] The liability policies were issued annually, so even though they were occurrence policies, each would have had coverage dates for purposes of identification, billing, and so forth. Our use of the term "expired" is thus used in this context to reflect coverage dates set forth on the declaration sheet of each year's policy.
[7] Moultis v. Degen,
[8] City of Richmond v. Madison Mgt. Group, Inc.,
[9] Plaintiffs argue that this Court should interpret the statutes at issue to preclude collusion between corporations and their insurers and ensure that parties injured by defective products are compensated.