SHIRLEY D'AMICO, Individually and as Executrix for the ESTATE OF FRANK D'AMICO, Plaintiff,
A.O. SMITH CORPORATION, et al., Defendants.
County Superior Court
Plaintiff: Vincent L. Greene, IV, Esq.Robert J. McConnell,
Esq. Donald A. Migliori, Esq.
Defendant: Brian D. Gross, Esq.Andrew R. McConville, Esq.
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 §
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
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.
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
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.
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.
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 ...