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D'Amico v. A.O. Smith Corp.

Superior Court of Rhode Island

March 13, 2017

SHIRLEY D'AMICO, Individually and as Executrix for the ESTATE OF FRANK D'AMICO, Plaintiff,
v.
A.O. SMITH CORPORATION, et al., Defendants.

         Providence County Superior Court

          For Plaintiff: Vincent L. Greene, IV, Esq.Robert J. McConnell, Esq. Donald A. Migliori, Esq.

          For Defendant: Brian D. Gross, Esq.Andrew R. McConville, Esq.

          DECISION

          GIBNEY, P.J.

         The Defendant-Grover S. Wormer Company (the Defendant or Wormer), Individually and as Successor-in-Interest to Wright-Austin Company (Wright-Austin)-brings this Motion to Dismiss the above-entitled asbestos litigation matter brought by the Plaintiff- Shirley D'Amico, Individually and as Executrix for the Estate of Frank D'Amico (the Plaintiff). The Defendant brings its Motion under Super. R. Civ. P. 12(b)(6) and contends that the Plaintiff's claims for liability are barred under Michigan's Business Corporation Act Chapter 8 (the BCA), which governs the dissolution of corporations and provides a Statute of Repose to bar continued liability. The Plaintiff does not contest Defendant's argument that Michigan's BCA is applicable; rather, the Plaintiff maintains that the Defendant has not provided sufficient discovery for this Court to resolve whether the Statute of Repose applies. Additionally, the Plaintiff contends that the Motion should be converted to a Motion for Summary Judgment since the Defendant refers to documents outside the Complaint, and that the Defendant has not met its summary judgment burden. This Court exercises jurisdiction pursuant to G.L. 1956 § 8-2-14.

          I

         Facts and Travel

         Mr. Frank D'Amico (the Decedent) was born on November 19, 1935 in the Bronx, New York, where he lived until his marriage to the Plaintiff. On March 6, 2013, the Decedent died from mesothelioma allegedly caused by years of occupational exposure to asbestos. As a result, the Plaintiff filed the instant action on January 25, 2012. On April 12, 2012, the Plaintiff served general discovery on all named defendants.

         On April 18, 2012, the Plaintiff amended her Complaint for the first time and named a new Defendant, Eaton Corporation a/k/a Eaton Hydraulics LLC, successor by merger to Eaton Hydraulics, Inc., f/k/a Vickers, Inc. On September 10, 2014, the Plaintiff amended her Complaint a second time to include Vickers Inc., as successor-in-interest to Haywood Manufacturing, Inc., as successor to Wright-Austin Company. Finally-after two more amended Complaints naming additional successors-in-interest-the Plaintiff filed her Fifth Amended Complaint naming the present Defendant, Wormer, individually and as successor-in-interest to Wright-Austin. The Defendant was incorporated in the State of Michigan, with its principal place of business in Michigan during the years of its incorporation. The Defendant manufactured certain "steam, water compressed air and gas traps" which were used in catapult systems. See Def.'s Ex. A.

         On May 15, 1997, a Certificate of Amendment to the Articles of Incorporation changed the company's name to "Grover S. Wormer Company." On January 28, 2008, Wormer was dissolved "in accordance with the Michigan Corporation Code." See id.

          II Parties' Arguments

         The Defendant contends that the Michigan BCA applies to any discussion of Wormer's liability since the company was incorporated and had its principal place of business in the State of Michigan. The Defendant maintains that the Plaintiff's claims should be dismissed because a Michigan Statute of Repose bars suits against dissolved companies that are filed more than one year after dissolution. Under Michigan's BCA, the Defendant contends that it cannot be held liable for damages and, in support, provides an affidavit from the now-dissolved company's President, Christiansen von Wormer.[1]

         The Plaintiff contends that this Motion should be converted to a summary judgment motion since the Defendant relies on documents outside the Complaint-namely, the affidavit of Christiansen von Wormer detailing the company's dissolution in 2008. The Plaintiff argues that summary judgment is premature at this stage since she has not had sufficient opportunity to conduct discovery on the case and that the Defendant has documents necessary to oppose this Motion in its sole custody and control.

         The Plaintiff argues in the alternative that-if this Court should find that summary judgment is not premature-the Defendant has failed to meet its burden for summary judgment under Rhode Island's Rules of Civil Procedure. Although the Plaintiff does not contest the fact that Wormer's liability and dissolution are governed by Michigan's BCA, the Plaintiff maintains that the Defendant ...


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