June 19, 2007, Introduced by Senators KUIPERS, CROPSEY, SANBORN and ALLEN and referred to the Committee on Judiciary.
A bill to amend 1961 PA 236, entitled
"Revised judicature act of 1961,"
(MCL 600.101 to 600.9947) by adding chapter 30.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
CHAPTER 30. LIMITATION OF SUCCESSOR ASBESTOS-RELATED LIABILITY
Sec. 3001. As used in this chapter:
(a) "Asbestos claim" means a claim for damages, loss,
indemnification, contribution, or other relief arising out of,
based on, or in any way related to asbestos, including, but not
limited to, any of the following:
(i) A claim based on the health effects of exposure to
asbestos, including, but not limited to, a claim for any of the
following:
(A) Personal injury or death.
(B) Mental or emotional injury.
(C) Risk of disease or other injury.
(D) The costs of medical monitoring or surveillance, to the
extent those claims are recognized under state law.
(ii) A claim made by or on behalf of a person exposed to
asbestos, or by or on behalf of a representative, spouse, parent,
child, or other relative of the person.
(iii) A claim for damages or loss caused by the installation,
presence, or removal of asbestos.
(b) "Corporation" means a corporation organized for profit,
whether organized under the laws of this state, another state, or a
foreign nation.
(c) "Successor" means a corporation that assumes or incurs, or
has assumed or incurred, a successor asbestos-related liability.
(d) "Successor asbestos-related liability" means a liability,
whether known or unknown, asserted or unasserted, absolute or
contingent, accrued or unaccrued, liquidated or unliquidated, or
due or to become due, that is related in any way to an asbestos
claim and that was assumed or incurred by a corporation as a result
of or in connection with a merger or consolidation or a plan of
merger or consolidation with or into another corporation or that is
related in any way to an asbestos claim based on the exercise of
control or the ownership of stock of the other corporation before
the merger or consolidation. Successor asbestos-related liability
includes, but is not limited to, liability that, after a merger or
consolidation for which the fair market value of total gross assets
is determined under section 3004, is paid or otherwise discharged,
or is committed to be paid or otherwise discharged, by or on behalf
of the corporation, by a successor of the corporation, or by or on
behalf of a transferor, in connection with a settlement, judgment,
or other discharge of liability in this state, another state, or a
foreign nation.
(e) "Transferor" means a corporation from which a successor
asbestos-related liability is assumed or incurred.
Sec. 3002. (1) The limitations in section 3003 apply to a
corporation that is incorporated under the laws of this state or
another state, has filed a certificate of authority to transact
business in this state, or has done business in this state and that
is a successor or a successor to a successor.
(2) The limitations in section 3003 do not apply to any of the
following:
(a) A claim for workers' compensation benefits paid by or on
behalf of an employer to an employee under the worker's disability
compensation act of 1969, 1969 PA 317, MCL 418.101 to 418.941, or a
comparable workers' compensation law of another state or a foreign
nation.
(b) A claim against a corporation that is not a successor
asbestos-related liability.
(c) An insurance corporation.
(d) An obligation under the national labor relations act, 29
USC 151 to 169, or under a collective bargaining agreement.
Sec. 3003. (1) Except as provided in subsection (2), the
cumulative successor asbestos-related liability of a corporation is
limited to the fair market value of the total gross assets of the
transferor determined at the time of the merger or consolidation
and adjusted as provided in section 3005.
(2) If the transferor assumed or incurred successor asbestos-
related liability in connection with a prior merger or
consolidation with another transferor, the limitation of liability
of the corporation under subsection (1) is the fair market value of
the total assets of the prior transferor, determined at the time of
the prior merger or consolidation and adjusted as provided in
section 3005.
Sec. 3004. (1) The fair market value of total gross assets for
purposes of section 3003 may be established by any method
reasonable under the circumstances, including, but not limited to,
by reference to any of the following:
(a) The going concern value of the assets.
(b) The purchase price attributable to or paid for the assets
in an arm's-length transaction.
(c) If there is no other readily available information from
which fair market value can be determined, the value of the assets
recorded on a balance sheet.
(2) In determining the fair market value of total gross assets
under section 3003, total gross assets include, but are not limited
to, both of the following:
(a) Intangible assets.
(b) The amount of aggregate coverage under a liability
insurance policy issued to the transferor that has been collected
or is collectible to cover successor asbestos-related liabilities,
except compensation for liability arising from workers' exposure to
asbestos solely during the course of employment by the transferor.
A settlement of a dispute concerning the insurance coverage entered
into by the transferor or successor and the insurer before the
effective date of the amendatory act that added this chapter is
determinative of the amount of aggregate coverage to be included in
determining the total gross assets.
Sec. 3005. (1) Subject to subsections (2) to (4), in
determining a limit of liability under section 3003, the fair
market value of total gross assets at the time of a merger or
consolidation shall be increased for each year since the merger or
consolidation by a percentage equal to 1% plus the adjusted prime
rate for the 6-month period ending March 31 of that calendar year
as determined under section 23 of 1941 PA 122, MCL 205.23.
(2) An increase under subsection (1) shall not be compounded.
(3) The adjustment under subsection (1) continues until the
date the adjusted value is first exceeded by the cumulative amounts
of successor asbestos-related liabilities paid or committed to be
paid by or on behalf of the corporation or a predecessor, or by or
on behalf of a transferor, after the time of the merger or
consolidation for which the fair market value of total gross assets
is determined.
(4) The amount of any liability insurance coverage included in
the total gross assets under section 3004(2)(b) shall not be
included in the adjustment under this section.
Sec. 3006. A court in this state shall apply this state's
substantive law, including the limitation in liability under this
chapter, in an action that includes successor asbestos-related
liability.
Sec. 3007. This chapter applies to an action that includes an
asbestos claim to which either of the following applies:
(a) The action is filed on or after the effective date of the
amendatory act that added this chapter.
(b) The action is pending but trial of the action has not
commenced as of the effective date of the amendatory act that added
this chapter.