UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

WILLARD L. SLOAN, EUGENE J.

WINNINGHAM, and JAMES L. KELLEY, 

on behalf of themselves and a similarly 

situated class, Case No. 09-cv-10918

Hon. Paul D. Borman

Plaintiffs, Magistrate Mona K. Majzoub

v. Class Action

BORGWARNER, INC., BORGWARNER 

FLEXIBLE BENEFITS PLANS and

BORGWARNER DIVERSIFIED 

TRANSMISSION PRODUCTS, INC.,

Defendants.

__________________________________________________________________

David R. Radtke (P47016)

Roger J. McClow (P27170)

Patrick J. Rorai (P65091)

McKNIGHT, McCLOW, CANZANO, 

SMITH & RADTKE, P.C.

400 Galleria Officentre, Suite 117

Southfield, MI 48034

248-354-9650; fax 248-354-9656

dradtke@michworklaw.com

rmcclow@michworklaw.com

prorai@michworklaw.com

Attorneys for Plaintiffs

Bobby R. Burchfield

KING & SPALDING LLP

1700 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

202-626-5524; fax 202-626-3737

bburchfield@kslaw.com

Elisa Angeli Palizzi (P52088)

MILLER, CANFIELD, PADDOCK

& STONE, P.L.C.

150 W. Jefferson Avenue, Suite 2500

Detroit, MI 48226

313-496-7635; fax 313-963-6420

angeli@millercanfield.com

Attorneys for Defendants

__________________________________________________________________

PLAINTIFFS’ RESPONSE BRIEF IN OPPOSITION TO 

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................... iii

CONCISE STATEMENT OF ISSUES PRESENTED .............................................v

I. INTRODUCTION ...........................................................................................1

II. LEGAL ANALYSIS .......................................................................................2

A. The Tackett Decision.............................................................................2

B. Indicia of Intent to Vest Retiree Health Care 

Benefits in the HIA................................................................................8

1. The Tie Between Retiree Health Care Benefits and

Receipt of a Pension....................................................................9

2. The Durational Limits on Employee Benefits in

Contrast to Retiree Health Care Benefits is Evidence

of Vesting..................................................................................11

3. The Negotiation of Explicitly Non-Vested Retiree

Health Care Benefits for Category B Retirees is

Evidence of Vested Benefits for Category A Retirees .............12

C. The General Duration Clause in the HIAs Is Not

Evidence of a Lack of Vesting ............................................................14

D. The Decision in Tackett Does Not Change the Court’s

Conclusion That There is a Genuine Issue of Material Fact...............15

E. The Issues Raised by BorgWarner Do Not Require

Summary Judgment.............................................................................16

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III. THE ISSUE OF WHETHER THE CHANGES BORGWARNER 

MADE TO CLASS MEMBERS’ RETIREE HEALTH CARE

BENEFITS HAS BEEN HELD IN ABEYANCE BY THE 

COURT..........................................................................................................16

IV. THE INCIDENTAL DAMAGES SOUGHT BY PLAINTIFFS 

ARE RECOVERABLE ON A CLASS-WIDE BASIS.................................17

V. CONCLUSION..............................................................................................19

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TABLE OF AUTHORITIES

Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998) ............................18

Bender v. Newell Window Furnishings, Inc., 681 F.3d 253 (6th Cir. 2012)...........13

Brooklyn Life Ins. Co. of New York v. Dutcher, 95 U.S. 269 (1877) ........................3

Cole v. Arvin Meritor, Inc., 515 F.Supp.2d 791 (E.D. Mich. 2006)........................15

Jensen v. S.I.P.C.O., Inc., 38 F.3d 945 (8th Cir. 1994)...........................................14

Litton Fin. Printing Div. v. NLRB, 501 U.S. 190 (1991)...........................................6

M&G Polymers USA, LLC v. Tackett, 135 S.Ct. 926 (2015)....................................2

Moore v. Menasha Corp., 690 F.3d 444 (6th Cir. 2012).........................................11

Noe v. Poly One Corp., 520 F.3d 548 (6th Cir. 2008).............................................12

Nolde Brothers, Inc. v. Bakery Workers, 430 U.S. 243 (1977).................................6

Reese v. CNH Industrial N.V., 2015 WL 6865964 

(E.D. Mich. 11/09/2015)............................................................................................7

Sprague v. General Motors Corp., 133 F.3d 388 (6th Cir. 1998).............................5

Stolt-Nielsen S.A. v. Animal Feeds Int’l Corp., 

559 U.S. 662 (2010)...................................................................................................3

UAW v. Kelsey-Hayes, 2015 U.S. Dist. LEXIS 124411

(E.D. Mich. September 17, 2015)..............................................................................7

UAW v. Yard-Man, Inc., 716 F.2d 1476 (6th Cir. 1983) ...........................................2

Underwood v. City of Chicago, 779 F.3d 461 (7th Cir. 2015)..................................4

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Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011).........................................17

Yolton v. El Paso Tennessee Pipeline Co., 435 F.3d 571 (6th Cir. 2006)...............12

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CONCISE STATEMENT OF ISSUES PRESENTED

1. Whether this Court should reverse its prior decision denying Defendants’ 

Motion for Summary Judgment because of the Supreme Court’s decision in 

M&G Polymers, USA, LLC v. Tackett, 135 S.Ct. 96 (2015).

Plaintiffs answer: “No.”

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I. INTRODUCTION

Defendants’ Motion for Summary Judgment is based an over-broad 

misreading of the impact of the Supreme Court’s decision in M&G Polymers USA, 

LLC v. Tackett. In Tackett, the Supreme Court held that the question of whether

retiree health care benefits are vested under a collective bargaining agreement must 

be determined applying ordinary principles of contract law, in accordance with the 

parties’ intentions and based on affirmative evidentiary support, rather than 

unproven suppositions about likely behavior in collective bargaining. Defendants 

claim that in order for Plaintiffs to prevail they must demonstrate the collectively 

bargained Health Insurance Agreements (HIAs) show by clear and express 

language a vested right to retiree health care benefits. This contention is contrary to 

the teachings of Tackett and has been rejected by other courts and judges in 

analyzing its meaning. 

This Court previously found that the language in the HIAs and the extrinsic 

evidence is ambiguous, and therefore, a trial on the merits is necessary to ascertain 

the whether the benefits are vested. That holding is unchanged by Tackett. 

Defendants’ Motion should be denied and this case set for trial.

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II. LEGAL ANALYSIS

A. The Tackett Decision

On February 27, 2014, this Court issued an Opinion and Order denying the 

parties’ cross motions for summary judgment on the issue of vesting. The Court 

found there was an intractable ambiguity in the contract language in the HIAs

negotiated by BorgWarner and UAW Local 287 between 1989 and 2009. Given 

the ambiguity of the relevant HIA language, the Court looked to the extrinsic 

evidence offered by the parties and concluded genuine issues of material fact 

existed as to the parties’ intent to vest retiree health care benefits. As a result, the 

Court found that summary judgment was not appropriate for either party and the 

issue of whether Plaintiffs’ health care benefits were vested must be decided at 

trial.

Subsequently, in M&G Polymers USA, LLC v. Tackett, 135 S.Ct. 926 (2015), 

the Supreme Court issued a decision rejecting the so-called Yard-Man inference set 

forth in UAW v. Yard-Man, Inc., 716 F.2d 1476 (6th Cir. 1983). Rather than 

relying upon an inference to determine whether retiree health care benefits were 

vested, the Court required the use of ordinary contract principles in ascertaining the 

intent of the parties as to the duration of retiree health care benefits. 135 S.Ct. at 

935.

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The Court stated at the outset of its decision in Tackett that “[i]n this 

endeavor, as with any other contract, the parties’ intentions control.” Id. at 933; 

quoting from Stolt-Nielsen S.A. v. Animal Feeds International Corp., 559 U.S. 662, 

682 (2010). The Court further instructed that the intent of the parties must be 

determined by record evidence. Id. at 945.

The concurrence in Tackett stated:

Under the ‘cardinal principle’ of contract interpretation, 

‘the intention of the parties, to be gathered from the 

whole instrument, must prevail.’ 11 R. Lord Williston 

on Contracts §30:2, p. 27 (4th Ed. 2012) 

(“Williston”). To determine what the contracting 

parties intended, a court must examine the entire 

agreement in light of relevant industry-specific customs, 

practices, usages, and terminology. Id., §30:14, at 

55-58. When the intent of the parties is unambiguously 

expressed in the contract, that expression controls, and 

the court’s inquiry should proceed no further. Id., §30:6, 

at 98-104. But when the contract is ambiguous, a court 

may consider extrinsic evidence to determine the 

intentions of the parties. Id., §30:7, at 16-124.

135 S.Ct. at 937-38 (Ginsburg, J., concurring); see also Brooklyn Life Ins. Co. of 

New York v. Dutcher, 95 U.S. 269, 273 (1877) (“there is no surer way to find out 

what the parties meant than to see what they have done.”)

BorgWarner contends that in order for Plaintiffs to show that the retiree 

health care benefits are vested, clear and express language of vesting is required. 

This is incorrect. In Tackett, the Court held that retiree health care benefits under 

CBAs must be determined using ordinary principles of contract law, in accordance 

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with the parties’ intentions, based on “affirmative evidentiary support.” Id. at 

935.

As the concurring opinion stated, without disagreement from the majority, 

“[c]ontrary to M&G’s assertion, [citation omitted] no rule requires ‘clear and 

express’ language in order to show that parties intended health-care benefits to 

vest.” Id. at 938.1

The Court plainly contemplated the introduction of evidence to show the 

intention of the parties where contract language is not clear and unambiguous by 

authorizing the reliance on “known customs or usages in a particular industry to 

determine the meaning of a contract” as long as they are supported by evidence. Id. 

at 935. Such evidence would be unnecessary if the Court’s opinion required 

retiree claims of vesting to be shown by clear and express language. Tackett also 

allowed for the introduction of extrinsic evidence if the contract language is 

ambiguous. Id at 938 (Ginsburg, J. concurring) 

 

1

See also post-Tackett decision in Underwood v. City of Chicago, 779 F.3d 

461 (7th Cir. 2015).

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Moreover, there also would have been no reason for the Court to remand 

Tackett if the decision held that explicit language was required or held the general 

duration clauses always control. The CBAs in Tackett had general duration 

clauses and an inexplicit term providing that retirees who receive a pension “will 

receive” company contributions toward health benefits. Id. at 931-932. 

 When the Court in Tackett said that a court “should not construe ambiguous 

writings to create lifetime promises,” and that if a contract “is silent as to the 

duration of retiree benefits, a court may not infer that the parties intended those 

benefits to vest for life,” it meant only that if the contract is ambiguous or silent 

about duration and there is no evidence showing that the parties intended to create 

vested rights, a court should not put a thumb on the scales and infer vesting. Id. 

at 936. When the Court stated that “a clear manifestation of intent” is required 

“before conferring a benefit or obligation,” it did not require clear language of 

vesting; only that there must be record evidence showing that the parties intended 

to confer that benefit. Id.

BorgWarner’s claim that Tackett’s citation of Sprague v. General Motors 

Corp., 133 F.3d 388 (6th Cir. 1998) was an endorsement that the clear and express 

language rule in Sprague was now applicable in CBA cases is wrong. Reading 

the Supreme Court’s passage carefully, it is clear that all the Court actually stated 

about Sprague was that the “different treatment” of CBAs and non-collectively 

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bargained plans “underscores Yard-Man’s deviation from ordinary contract law.” 

135 S.Ct. at 937. Moreover, it would be inconsistent with the core themes of the 

Tackett opinion to conclude that the Court intended to require “clear and express” 

language in CBA cases -- otherwise there would be no need for the extensive 

discussion of the need for record evidence of the parties’ intent and of industry 

customer and usage. See also, Reese, Ex. 1 at p. 5.

Although it is generally true that contractual obligations cease, in the 

ordinary course upon termination of a CBA, it is equally true that the expiration of 

a contract does not release the parties from obligations that are fixed under the 

contract but have not been satisfied. Litton Financial Printing Div. v. NLRB, 501 

U.S. 190 (1991). The Tackett Court acknowledged this axiom in stating the 

general principle “does not preclude the conclusion that the parties intended to vest 

lifetime benefits for retirees.” Id. at 937. 

It is important to note that the Tackett Court did not change the holding in 

Litton or the decision that Litton is built on -- Nolde Brothers, Inc. v. Bakery 

Workers, 430 U.S. 243 (1977). In Nolde, the Court ordered an employer to 

arbitrate claims for severance pay arising from a post-expiration plant closing, 

even though there was no explicit post-expiration obligation in the CBA. 

430 U.S. at 252-53.

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On November 9, 2015, Judge Duggan issued a decision in Reese v. CNH 

Industrial N.V., 2015 WL 6865964 (E.D. Mich. 11/09/2015). (Ex.1) Judge 

Duggan’s decision reconsidered his prior decision granting summary judgment for 

the defendant, and instead granted summary judgment for the plaintiffs. 

BorgWarner relies on Judge Duggan’s original decision granting summary 

judgment for the defendant. (Dkt. #147, pp. 15-16) Judge Duggan’s order 

granting summary judgment for the plaintiffs in Reese found that Tackett did not 

create new rules for construing collective bargaining agreements, but simply 

rejected the Yard-Man inferences and reaffirmed that CBAs are to be interpreted 

according to the ordinary principles of contract law. (Ex. 1 at p. 3.)

Judge Duggan also found that the absence of clear and express language 

addressing retiree health care benefits “does not necessarily compel the conclusion 

that the parties lack the intent for those benefits to vest and that a “clear and 

express” requirement “strays from the ordinary principles that Tackett instructs 

courts to apply” to CBAs. Judge Duggan further stated that a CBA’s obligations 

“may arise from its express or implied terms.” (Ex. 1 at pp. 4-5 (citations 

omitted); emphasis in the original). Judge Duggan also found that a CBA’s general 

duration clauses do not “dictate automatically” that health care is not vested and 

the parties’ intention is “determined by looking at the contract as a whole.” See 

also, International Union, UAW v. Kelsey-Hayes Company, 2015 U.S. Dist. LEXIS 

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124411 (E.D. Mich. September 17, 2015). He explained that the pension 

agreement has a duration clause but “no one contends that the Company’s 

obligation to provide pension benefits ceased upon the expiration of the agreement.” 

(Ex. 1 at pp. 3, 8-9, 11 citations omitted)

The Reese decision also stated that “lack of a clear manifestation of the 

parties’ intent” in a CBA does not “negate the possibility there was ambiguity 

regarding their intent” and the long-standing principles of contract interpretation 

instruct, “where a contract is ambiguous, extrinsic evidence may resolve that 

ambiguity.” (Ex. 1 p. at 6 n. 1.) Ambiguity may be shown by reading “a 

contract as a whole.” Also, CBA terms “tying eligibility for retiree health 

insurance benefits to eligibility for pension benefits” and “specific durational 

clauses for other benefits but not pension and retiree health insurance benefits” are 

evidence of vesting. (Ex. 1 at 7-10.) Finally, Judge Duggan found that courts 

may “rely on” the “elaboration of ‘ordinary contract principles’” in the 

concurrence in Tackett. (Ex. 1 at 3-4 (citations omitted))

B. Indicia of Intent to Vest Retiree Health Care Benefits in the HIA

In denying Defendants’ Motion for Summary Judgment, this Court found 

that the HIAs contained several indicia of an intent to vest. 1 F.Supp. 3d at 775. 

First, the receipt of retiree health care benefits was tied to the receipt of pension 

benefits -- which is a lifetime vested benefit. Id. Second, the HIAs contained a 

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number of provisions in which the parties agreed to specific durational limitations 

on health care benefits for non-retirees (such as in the case of active employees on 

leave and surviving spouses), but the HIAs contain no corresponding specific 

duration on retiree health care benefits. Id. at 767-68. Third, the parties 

negotiated for less favorable benefits for future retirees while leaving existing 

retirees’ benefits unchanged. Id. at 771, 775. 

1. The Tie Between Retiree Health Care Benefits and Receipt 

of a Pension.

BorgWarner’s claims that the collectively bargained provision tying the 

receipt of retiree health care benefits to the receipt of pension benefits should 

simply be ignored in determining whether the retiree health care benefits are vested. 

(Dkt. #147 p. 22) This reading would render Tackett’s instruction to interpret 

CBAs according to ordinary contract principles meaningless. In the Tackett 

concurrence, Justice Ginsberg stated that:

Because the retirees have a vested, lifetime right to a 

monthly pension . . . a provision stating that retirees ‘will 

receive’ health-care benefits if they are ‘receiving a 

monthly pension’ is relevant to this examination. . . .” 

So is a ‘survivor benefits’ clause instructing that if a 

retiree dies, her surviving spouse will ‘continue to 

receive [the retiree’s] health-care benefits . . . until death 

or remarriage.’

(135 S. Ct.. at 938) 

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In Reese, the district court analyzed the defendants’ claim that Tackett

rendered a tie between the receipt of retiree health care benefits to the receipt of 

pension benefits meaningless. In rejecting the argument, the court stated:

All that Tackett holds or suggests is that a court may not 

infer from such tying language that the parties intended 

retiree health care benefits to vest. Such language does 

not lose all significance, however. In other words, 

Tackett does not hold that courts must ignore language 

that under Yard-Man and its progeny inferred an intent to 

vest. To the contrary, Tackett advises courts to apply 

‘ordinary principles of contract law [,]’. 135 S.Ct. at 

933; and under those principles, ‘the intention of the 

parties’ is ‘gathered from the whole instrument . . . .’ 

Id. at 937. [Ginsburg, J., concurring] (emphasis added) 

When the relevant agreements were negotiated, the 

parties were aware that pension benefits vest for the life 

of the retiree. See, e.g., Shaw v. Delta Airlines, Inc., 

463 U.S. 85, 89 (1983) (citing 29 U.S.C. §§1051-1086) 

explaining that ERISA “imposes participation, funding, 

and vesting requirements on pension plans”). By tying 

eligibility for retiree health insurance benefits to 

eligibility for pension benefits, the parties may have been 

expressing their intent for health insurance benefits to 

survive for the same duration. In other words, so long 

as an individual is eligible to receive a pension benefit, 

he or she continues to be eligible for retiree health 

insurance benefits promised in the agreements.

Ex. 1 at pp. 7-8.

The tie between the receipt of pension benefits and health care benefits is 

evidence of an intent to vest. What would another purpose for tying the benefits 

together unless it related to the duration of retiree health care benefits? If the 

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retiree health care benefits were to expire at the conclusion of the HIA, then there 

was no need to reference pension benefits. There also was no need for the parties 

to include a separate provision for retiree health care benefits in the HIA. If 

retiree health care benefits, like active employee health care benefits, expired at the 

end of the HIA, the parties could have had a single health care provision for active 

employees and retirees. They did not do so because the duration of retiree health 

care benefits, unlike active employee health care benefits, were intended to last 

beyond the duration of the HIAs.

2. The Durational Limits on Employee Benefits in Contrast to 

Retiree Health Care Benefits is Evidence of Vesting.

There are also numerous provisions in the HIA with specific durational 

limits. 1 F.Supp. at 767-68 These provisions with specific durational clauses 

juxtaposed with the provisions regarding retiree health care benefits for Category 

A retirees also indicate and intent to vest. In Article VIII of the HIAs, are 

benefits were granted to surviving spouses as long as they were eligible for a 

lifetime pension or until remarriage. Id. at 7672 The Sixth Circuit consistently 

held that the inclusion of specific durational limitations in some provisions, but not 

others, suggests that benefits not so specifically limited were intended to survive 

the expiration of the contract. Id. Moore v. Menasha Corp., 690 F.3d 444, 458 

 

2

The Court found it would be an untenable construction of the HIA to find 

that the surviving spouses of retirees were entitled to lifetime benefits, but the 

retirees were not. Id.

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(6th Cir. 2012); Noe v. Poly One Corp., 520 F.3d 548, 562-63 (6th Cir. 2008);

Yolton v. El Paso Tennessee Pipeline Co., 435 F.3d 571, 581-82 (6th Cir. 2006); 

Reese, Ex. 1 at pp. 7-10. The recognition that specific durational limits for some 

benefits and not retiree health care benefits is not a Yard-Man inference, but a tool 

used for contract interpretation. See Ex. 1 pp. 7-10.

3. The Negotiation of Explicitly Non-Vested Retiree Health 

Care Benefits for Category B Retirees is Evidence of Vested 

Benefits for Category A Retirees.

The HIAs specifically set forth which benefits the retirees and surviving 

spouses are entitled to receive upon retirement and the benefits which retirees are 

not entitled to receive upon retirement. 

Beginning in the 1992 HIA, the parties divided retirees into Category A 

retirees and Category B retirees. 1 F.Supp 3d at 750-51. Category A retirees were 

further divided into three subgroups -- (1) pre-1993 retirees; (2) elective retirees; 

and (3) post-March 11, 1995 retirees. Id. Each of these Category A subgroups were 

entitled to specific benefits described in exhibits A, B, C, D, E, F and H of the 

1992 (and 1995) HIA. Id.

For Category B retirees, the parties specifically agreed that BorgWarner had 

no liability for retiree health care expenses upon retirement. Id. at 750, 771. Similar 

language for Category A retirees is not in the HIAs. The specific language 

declaring that Category B retirees had non-vested retiree health care benefits 

juxtaposed with the guarantee that Category A retirees and surviving spouses were 

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entitled to retiree health care benefits described in the exhibits to the HIA as long 

as they were receiving a pension (or until remarriage for surviving spouses), is 

powerful evidence that Category A retirees have vested benefits. Id. at 771.

In the 1992 HIA, the parties also negotiated a provision that gave Category 

A retiree that retired between January 1, 1993 and March 11, 1995 the option of 

locking into the pre-PPO plan or locking into the PPO plan negotiated in 1992. 

This gave active employees a window period to continue in the pre-PPO plan up 

until March 11, 1995. Id. at 750-51.

In April 2005, the parties negotiated modifications and revisions to the 

2000-2006 HIA. The 2005 HIA expired on April 30, 2009 and included a 

reduction in the level of health care benefits and monthly contributions for future 

retirees. Id. at 751. The parties negotiated a provision that hourly retirement 

eligible employees (who were hired before January 1, 1993) could retire in the 13 

month window between April 2005 and May 1, 2006 with the same benefits that 

were in the 2000 HIA -- which included no retiree monthly contribution and the 

better benefit levels. Id.

In Bender v. Newell Window Furnishings, Inc., 681 F.3d 253, 263 (6th Cir. 

2012), in 1993, the union and the company negotiated an end to health insurance 

benefits for future retirees beginning in January 1994, but included a window 

period where active employees could retire before January 1, 1994 and have 

guaranteed vested health coverage. The Sixth Circuit found the window period 

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was evidence of vested retiree health care benefits. Id. at 263. See also Jensen v. 

S.I.P.C.O., Inc., 38 F.3d 945, 951 (8th Cir. 1994).

C. The General Duration Clause in the HIAs Is Not Evidence 

of a Lack of Vesting. 

BorgWarner argues that because the HIAs have general durational clauses, 

the Tackett decision requires a finding that the benefits are not vested. 

BorgWarner claims that a lack of a durational limit for retiree health care benefits 

leaves those benefits subject to the HIAs’ general duration clause. 

First, the premise of this argument is incorrect. The HIAs have a durational 

clause for retiree health care benefits. For retirees, it is co-existent with the 

receipt of pension benefits. For surviving spouses, the duration is co-existent 

with the receipt of pension benefits or until remarriage. These clauses directly 

relate to the duration of retiree health care benefits and trump the HIAs’ general 

duration clause.

Second, all collectively bargained agreements have duration clauses. 

Looking solely at the duration clause in determining whether retiree health care 

benefits is a misreading of Tackett. (See Ex. 1 pp. 3, 8-9, 11.) In Tackett, the 

Court stated the parties’ intent is dispositive in contract interpretation questions. 

135 S.Ct. at 933. In order to determine the parties’ intent, this Court must look at 

the entire instrument and not rely on a single provision while ignoring other 

provisions that show the parties’ intent as it relates to retiree health care benefits. 

Once the Court determines the parties’ intent, it must adhere to that intent. Id. at 

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937. (explaining that, while contractual obligations might cease upon the 

termination of the CBA, such a principle “does not preclude the conclusion that the 

parties intended to vest lifetime benefits for retirees.”) 

D. The Decision in Tackett Does Not Change the Court’s Conclusion

That There Is a Genuine Issue of Material Fact. 

Plaintiffs submitted additional evidence that the benefits were vested. This 

includes evidence that the annual deductibles and stop-loss limits negotiated in the 

1992 and 1995 HIAs extended beyond the terms of those agreements which shows 

that the benefits negotiated for Category A retirees were going to continue to be in 

place even after the HIAs expired -- i.e. that the negotiated benefits were vested. 

See Cole v. Arvin Meritor, Inc., 515 F.Supp.2d 791, 801 (E.D. Mich. 2006) 

For Category A non-PPO retirees (pre-1993 retirees), prescription drug 

deductibles stayed the same until BorgWarner’s unilateral changes on May 1, 2009, 

while Category A PPO retirees (generally post-March 11, 1995 retirees) had their 

deductibles increased by the negotiated amounts on the dates agreed upon by the 

parties. (Ex. 2 pp. 3, 5-6, 12-15) In the 1998 HIA, the parties agreed to an 

improved drug plan for active employees and retirees, but there was no change in 

the prescription drug deductible for Category A non-PPO retirees. (Ex. 2, p. 3) 

This also shows the benefits were locked in and vested for Category A retirees 

based on their subgroup.

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E. The Issues Raised by BorgWarner Do Not Require Summary

 Judgment.

The issue related to whether the summary plan description was a separate 

document from the HIA or was negotiated as part of the HIA was not an issue in 

Tackett. Therefore, this Court’s earlier finding that there was an issue of material 

fact as to the SPD’s impact remains. 1 F.Supp.3d at 769 This Court also correctly 

decided that the “agreement to disagree” in the 1990 ACME Agreement and the 

Plant Closing Agreement was not dispositive on either side’s claim. Id. at 775. 

That remains the case after Tackett. Finally, the termination provision in the 

exhibits to the HIAs remains ambiguous and evidence presented at a trial is 

necessary. Id. at 766.

III. THE ISSUE OF WHETHER THE CHANGES BORGWARNER 

MADE TO CLASS MEMBERS’ RETIREE HEALTH CARE 

BENEFITS HAS BEEN HELD IN ABEYANCE BY THE COURT.

On August 23, 2013, this Court issued an Order that it would rule on the 

issue of vesting prior to a ruling on whether the unilaterally implemented changes 

to retiree health care benefits for Class Members was lawful if the benefits were 

vested. See Dkt. #123 Plaintiffs informed the Court back in 2012 that additional 

discovery would be necessary on the issue of whether the retiree health care benefit 

changes were “reasonably commensurate” or whether the holding in Reese v. CNH 

America LLC, 574 F.3d 315 (6th Cir. 009) and Reese v. CNH America LLC, 694 

F.3d 681 (6th Cir. 2012) were applicable in this case. Pursuant to the Court’s 

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17

August 23, 2013 Order, the only issue before this Court is whether the benefits are 

vested.

IV. THE INCIDENTAL DAMAGES SOUGHT BY PLAINTIFFS ARE 

RECOVERABLE ON A CLASS-WIDE BASIS.

In 2009, Plaintiffs filed a Motion for Class Certification under Rules 23(b)(1) 

and (b)(2). Defendants opposed Plaintiffs’ attempt to certify the class under those 

rules based on Plaintiffs’ request for monetary damages. In the Opinion and 

Order granting Plaintiffs’ Motion for Class Certification, the Court rejected 

Defendants’ argument that the incidental monetary relief sought by Plaintiffs 

defeated certification under Rule 23(b)(1) and (b)(2). (Dkt. #56, pp. 8-13) 

Now, Defendants’ claim that Plaintiffs cannot recover class-wide damages 

in this class action because of the holding in Wal-Mart Stores, Inc. v. Dukes, 131 S. 

Ct. 2541 (2011). Defendants’ claim is wrong. In Dukes, the plaintiffs sought a 

judgment against Wal-Mart for back pay, injunctive and declaratory relief and 

punitive damages on behalf of themselves and a nationwide class of 1.5 million 

female employees because of Wal-Mart’s alleged discrimination against women in 

violation of Title VII of the Civil Rights Act of 1964. The Court held that the 

certification of the plaintiff class was not consistent with Rule 23(a) of the Federal 

Rules of Civil Procedure. The Court also found that the employees’ claims for 

back pay was improperly certified because where monetary relief was not 

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incidental to injunctive or declaratory relief, so Rule 23(b)(2) was not appropriate 

because the certification failed to comply with the Due Process Clause. The

Court explicitly stated it was not deciding whether there were any forms of 

“incidental” monetary relief that were consistent with the interpretation of Rule 

23(b)(2). 131 S. Ct. at 2560. The Court specifically cited Allison v. Citgo 

Petroleum Corp., 151 F.3d 402 (5th Cir. 1998) in stating that it was not deciding 

whether any forms of incidental monetary relief were consistent with Rule 23(b)(2). 

Id. Here, this Court relied, in part, on Allison in granting Plaintiffs’ Motion for 

Class Certification. Allison is still good law and the Class Certification is proper. 

Defendants’ claim that Plaintiffs and the Class are not entitled to class-wide 

damages as a matter of law in a Motion for Summary Judgment is inappropriate. 

This Court has certified the Class with the understanding of all the relief that 

Plaintiffs seek.

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V. CONCLUSION

For the reasons stated herein, the Plaintiffs respectfully request that the 

Court deny Defendants’ Motion for Summary Judgment and set this matter for 

trial.

Respectfully submitted,

McKNIGHT, McCLOW, CANZANO, 

SMITH & RADTKE, P.C.

By: /s/ David R. Radtke 

 DAVID R. RADTKE (P47016)

 ROGER J. McCLOW (P27170)

 PATRICK J. RORAI (P65091)

 Attorneys for Plaintiffs

 400 Galleria Officentre, Suite 117

 Southfield, MI 48034

 248-354-9650

 dradtke@michworklaw.com 

 rmcclow@michworklaw.com

Dated: November 23, 2015 prorai@michworklaw.com

2:09-cv-10918-PDB-MKM Doc # 151 Filed 11/23/15 Pg 25 of 26 Pg ID 7994
CERTIFICATE OF SERVICE

I hereby certify that on November 23, 2015, I electronically filed the 

foregoing paper with the Clerk of the Court using the ECF system which will serve 

it upon:

Bobby R. Burchfield Elisa Angeli Palizzi

Respectfully submitted,

McKNIGHT, McCLOW, CANZANO, 

SMITH & RADTKE, P.C.

By: /s/ David R. Radtke 

 DAVID R. RADTKE (P47016)

 ROGER J. McCLOW (P27170)

 PATRICK J. RORAI (P65091)

 Attorneys for Plaintiffs

 400 Galleria Officentre, Suite 117

 Southfield, MI 48034

 248-354-9650

 dradtke@michworklaw.com 

 rmcclow@michworklaw.com

 prorai@michworklaw.com

P:\RHC Cases\BorgWarner\2009 MI Lawsuit\Pleadings\PLs Resp to DEFs MSJ\Resp to DEFs MSJ.wpd

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