Source: http://www.lenconnect.com, August 30, 2011
By: Dennis Pelham
More than 60 property owners could file separate lawsuits over groundwater pollution from the Tecumseh Products Co. plant in Tecumseh after a judge denied class action status on Monday.
“I do not like the idea of inviting 60-some litigants,” said Lenawee County Circuit Judge Margaret M.S. Noe. But potential damage to each property has to be evaluated separately, she said, which does not allow a class action suit.
Tecumseh attorney Charles Gross said options that remain open for property owners include joining separate claims and sharing the cost of an appraisal study to determine damages in the case. He told the court class action status was needed to make an estimated $30,000 to $50,000 appraisal study practical.
Gross represents brothers Thomas and Robert Robarge who filed suit in 2009 after they learned groundwater beneath their homes had been contaminated with chemical solvents dumped on factory property.
Gross argued at Monday’s hearing that Tecumseh Products has admitted liability for the groundwater contamination in a 2010 consent agreement with the federal Environmental Protection Agency. He also said 36 monitoring wells operating in the area of the Tecumseh plant have identified at least 62 properties affected by the underground contamination.
“Every one of these people have a problem,” Gross argued. Owners and potential buyers will have problems borrowing against the property because of the proven groundwater contamination.
He agreed any loss of value has to be proven for each individual property. But class action status would relieve each owner from a legal battle to first prove Tecumseh Products is responsible.
“Each of these plaintiffs shouldn’t have to prove liability and causation,” Gross said.
“These guys are going to deny everything,” Gross said. “This is why we have class actions. It is the only way for individuals in Tecumseh, Mich., to have a chance against this group.”
Tecumseh Products has not admitted any liability, said company attorney Robert Jackson of Detroit.
A Michigan Court of Appeals ruling in the lawsuit allowed only a nuisance claim to proceed against the company, he said, and that requires “a property owner by property owner analysis. They have to prove a substantial interference with their use and enjoyment.” Because the city has a municipal water system, he said, property owners do not have contact with the affected groundwater.
“Plaintiffs simply cannot meet the requirements of class action,” Jackson said.