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)

KLIMIST, McKNIGHT, SALE, 

McCLOW & CANZANO, P.C.

Attorneys for Plaintiffs

400 Galleria Officentre, Suite 117

Southfield, MI 48034

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

dradtke@kmsmc.com

rmcclow@kmsmc.com

prorai@kmsmc.com

Bobby R. Burchfield

Joshua D. Rogaczewski 

McDERMOTT WILL & EMERY

Attorneys for Defendants 

600 Thirteenth St., N.W.

Washington, D.C. 20005

202-756-8000; fax 202-756-8087

bburchfield@mwe.com

jrogaczewski@mwe.com

Elisa Angeli Palizzi (P52088)

MILLER, CANFIELD, PADDOCK

& STONE, P.L.C.

Attorneys for Defendants

150 W. Jefferson Avenue, Suite 2500

Detroit, MI 48226

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

angeli@millercanfield.com

_________________________________________________________________/

PLAINTIFFS’ SUPPLEMENTAL BRIEF IN SUPPORT

OF MOTION FOR SUMMARY JUDGMENT

AND IN OPPOSITION TO

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

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-iTABLE OF CONTENTS

I. The Evidence That the Retiree Health Care Benefits for the 

Class Are Vested Is Overwhelming. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A. The HIAs Vest Retiree Health Care Benefits. . . . . . . . . . . . . . . . . . . 1

B. Specific Limitations on Other Benefits. . . . . . . . . . . . . . . . . . . . . . . . 3

C. Category B Retirees and the Grandfathered Employees. . . . . . . . . . . 4

D. Extrinsic Evidence Supports a Finding The Benefits 

Are Vested. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

II. BorgWarner’s Claim That Plaintiffs’ Retiree Health Care 

Benefits Are Not Vested Is Without Merit...........................7

A. The Self-Serving “Agreements to Disagree” Do Not 

Negate the Plain Language of Article VIII of the HIAs. ..........7

B. Exhibit A of the HIAs Is Evidence of Vesting. . . . . . . . . . . . . . . . . . 8

C. Under Controlling Precedent, SPDs Cannot Modify 

Vested Benefits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

III. The HIAs Require Mutual Consent to Make Changes in Benefits. .......9

IV. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

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-iiTABLE OF AUTHORITIES

Bender v. Newell Window Furnishings, 681 F.3d 253 (6th Cir. 2012) . . . . 4, 5, 6, 9

Cole v. ArvinMeritor 515 F. Supp.2d 791 (E.D. Mich. 2006); 

aff’d in 549 F.3d 1064 (6th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4

Hargrove v. EaglePicher Corp., 852 F. Supp.2d 851 

(E.D. Mich. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 12

Jensen v. S.I.P.C.O., Inc., 38 F.3d 945 (8th Cir. 1994) ......................6

Maurer v. Joy Technologies, 212 F.3d 907 (6th Cir. 2000) ..................6

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

cert. denied 133 S.Ct. 1643 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 10, 11, 12

Policy v. Powell Pressed Steel Co., 770 F.2d 609 (6th Cir. 1985) .............6

UAW v. Yard-Man, Inc., 716 F.2d 1476 (6th Cir. 1983) . . . . . . . . . . . . . . . . . . . 4, 6

United Steelworkers v. Kelsey-Hayes, 2013 U.S. Dist LEXIS 58352 

(E.D. Mich. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 12

Zino v. Whirlpool Corp., 2013 U.S. Dist. LEXIS 121750 

(N.D. Ohio 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

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Pursuant to the Court’s August 23, 2013 Order, this is Plaintiffs’ Supplemental

Brief updating or otherwise supporting their original Motion for Summary Judgment

on the issue of vesting. 

I. The Evidence That the Retiree Health Care Benefits for the Class Are

Vested Is Overwhelming.

A. The HIAs Vest Retiree Health Care Benefits. 

Article VIII of the 1989, 1992 and 1995 HIAs specifically tie eligibility for

fully paid health care benefits to eligibility for a lifetime pension. Article VIII,

Section 1.A. provides “[A]n employee who retires under the Retirement Income

Program Agreement on or after December 1, 1989 . . . shall be entitled to” health

coverage as set forth in the exhibits to the HIA. Article VIII, Section 1.B. provides

“An employee who terminates employment . . . while participating in the Muncie

Retirement Savings Plan shall be entitled to . . .” health care benefits as set forth in the

exhibits to the HIA. The “shall be entitled” to health care benefits is directly tied to

retirement under the Retirement Income Program, the Retirement Savings Plan, or the

Total and Permanent Disability Pension. (Dkt. #102 Ex. 2 PL Ex. 7 pp. 7-8; Ex. 5 PL

Ex. 19 pp. 5-6; Ex. 6 PL Ex. 23 pp. 5-6)

Surviving spouses’ entitlement to healthcare is also explicitly dependent on

“receiving a monthly retirement benefit” or “while participating” in the pension plan.

The only durational limitation on retiree health care benefits applies to surviving

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1

 There is no similar contractual limitation on the obligation of DTP to pay for

retiree coverages. Even if retirees remarry, they are entitled to continuation of DTP

paid health insurance while retired. 

-2-

spouses -- their entitlement to health care terminates upon remarriage. As long as a

surviving spouse all “receive[s] a monthly retirement benefit” or is “participating” in

the pension plan, DTP is contractually obligated to pay the full cost of their medical

insurance coverage for life -- unless or until they remarry.1

 (Dkt. #102 Ex. 2 PL Ex.

7 pp. 8-10; Ex. 5 PL Ex. 19 pp. 6-8; Ex. 6 PL Ex. 23 pp. 6-8)

The HIAs specifically state that retirees and surviving spouses shall be entitled

to the coverages and procedures “set forth” in Exhibits A, C, D, E, F and H of the

HIAs. (Dkt. #102 Ex. 2 PL Ex. 7 pp. 7-8; Ex. 5 PL Ex. 19 pp. 5-6; Ex. 6 PL Ex. 23

pp. 5-6) The coverages and procedures to be provided to the Class Members are

specific and enforceable. (Dkt. #102 Ex. 2 PL Ex. 7 pp. 8-10; Ex. 5 PL Ex. 19 pp.

6-8; Ex. 6 PL Ex. 23 pp. 6-8)

The 1992 HIA and 1995 HIA confirm that the retiree healthcare benefits

survived the duration of the agreements because the parties negotiated deductibles and

stop-loss maximums for Category A PPO Retirees through 2002 -- four years beyond

the 1998 termination date of the HIAs. (Dkt. #102 Ex. 5 PL Ex. 19 p. 14; Ex. 6 PL

Ex. 23 p. 14) If the benefits expired when the HIAs expired in 1998, as argued by

BorgWarner, the negotiated provisions that extended beyond the expiration would be

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nonsensical. In Cole v. ArvinMeritor 515 F. Supp.2d 791, 801 (E.D. Mich. 2006);

aff’d in 549 F.3d 1064 (6th Cir. 2008), the district court found that cost-sharing

increases that applied after the contract expired was evidence of vested retiree

healthcare benefits.

B. Specific Limitations on Other Benefits.

In contrast to the retiree health care provision, the negotiated HIAs continued

numerous specific limitations on the duration of health care and other benefits for

active employees on layoff or leave and for surviving spouses. 

• Surviving spouses receiving healthcare benefits could have their

coverage terminate if they remarried. Article VIII, Section 3. (Dkt.

#102 Ex. 2 PL Ex. 7 pp. 9-10; Ex. 5 PL Ex. 19 pp. 7; Ex. 6 PL Ex. 23 pp.

7)

• For the surviving spouse of an active employee who dies and was not

eligible to retire under the pension plans, DTP paid the monthly premium

costs for the first nine months following the active employee’s death.

After the nine month period, the surviving spouse could pay for coverage

as long as they were drawing transition or bridge benefits or until

remarriage. Article VIII, Section 4. (Dkt. #102 Ex. 2 PL Ex. 7 p. 10;

Ex. 5 PL Ex. 19 pp. 7-8; Ex. 6 PL Ex. 23 pp. 7-8)

• Surviving spouses and their dependents were eligible for a transition

survivor income benefit for 24 months. (Dkt. #102 Ex. 2 PL Ex. 7 p.

29; Ex. 5 PL Ex. 19 p. 30; Ex. 6 PL Ex. 23 p. 29)

• If a surviving spouse met the eligibility for a bridge income benefit, the

survivor received it until age 62 or remarriage. (Dkt. #102 Ex. 2 PL Ex.

7 p. 31; Ex. 5 PL Ex. 19 pp. 31-32; Ex. 6 PL Ex. 23 p. 31)

• Surviving spouses who were not participants in the DTP pension plan(s)

could continue coverage at their own expense, as long as they did not

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remarry. Article VIII, Section 5. (Dkt. #102 Ex. 2 PL Ex. 7 p. 10; Ex.

5 PL Ex. 19 p. 10; Ex. 6 PL Ex. 23 p. 8)

• An employee on layoff received up to twelve months of employer-paid

health care coverage, depending on length of seniority. Appendix A,

Section 7.B. (Dkt. #102 Ex. 2 PL Ex. 7 p. 19; Ex. 5 PL Ex. 19 pp. 18-

19; Ex. 6 PL Ex. 23 p. 18)

• Under Exhibit A, Section H.5 of the HIA, an employee was eligible for

the extended disability benefit program up to a maximum period equal

to an employee’s total length of seniority at the time of the total

disability or if the employee was between 60 and 65, five years and a

lesser duration as the employee’s age increases at the time of their

disability. (Dkt. #102 Ex. 2 PL Ex. 7 pp. 37-38; Ex. 5 PL Ex. 19 pp. 37-

38; Ex. 6 PL Ex. 23 pp. 37-38)

In UAW v. Yard-Man, Inc., 716 F.2d 1476, 1481 (6th Cir. 1983); Moore v.

Menasha Corporation, 690 F.3d 444, 453 (6th Cir. 2012); Bender v. Newell Window

Furnishings, 681 F.3d 253, 263-64 (6th Cir. 2012); and Cole, 549 F.3d at 1071-72,

the Sixth Circuit found the parties’ agreement to specific durational limits on health

care or other benefits for active employees or surviving spouses of non-retired

employees while not placing similar durational limits on health care benefits for

retirees was evidence the retiree health care benefits were vested.

C. Category B Retirees and the Grandfathered Employees.

In Article III, Section 2 and Article VIII, Section 8 of the 1992 and 1995 HIAs,

the parties negotiated a new retiree health care program for employees hired after

December 31, 1992. (Dkt. #102 Ex. 5 PL Ex. 19 pp. 2-3, 9-10; Ex. 6 PL Ex. 23 pp.

8-9) These employees were designated as Category B Retirees. Category B Retirees

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-5-

were not guaranteed specific, lifetime retiree healthcare benefits. The HIA provided,

“[f]or employees hired after December 31, 1992, the Company shall have no liability

for providing health care coverage or for paying health care expenses after such

employee terminates coverage . . .” except as provided in Article VIII, Section 8. Id.

The HIA provisions for Category B Retirees which specifically absolve BorgWarner

from vested retiree health care obligations are in stark contrast to the guarantees for

Category A Retirees. The fact that Category A Retirees (i.e., “the Class”) are not

specifically covered by similar language of non-vesting as the Category B Retirees is

evidence that their benefits are vested. See Bender, 681 F.3d at 263.

In 1992, the parties agreed to a window period extending to March 12, 1995 for

retirees to elect the same health benefits as pre-1993 retirees or elect the Managed

Care Plan negotiated in 1992. (See Article VIII, Section 1.B; Dkt. 102 Ex. 5 PL Ex.

19 p. 5; Ex. 6 PL Ex. 23 p. 5) In the 2005 contract, the parties agreed to a 13 month

window period after the contract went into effect to allow active employees to retire

before May 1, 2006 and receive the better healthcare benefits provided under the 2000

HIA, rather than the reduced level of healthcare benefits negotiated in the 2005 HIA.

(Dkt. #102 Exs. 13, 14, PL Exs. 46, 47) A similar window period allowing employees

to lock in better benefits under a prior contract if they retire by a date certain has been

found to be evidence that the benefits are vested. See Bender, 683 F.3d at 263; Jensen

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

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D. Extrinsic Evidence Supports a Finding The Benefits Are Vested.

The 1989 and 1995 Retirement Income Booklets specifically provide that

“Group Insurance at Retirement” will be continued and that DTP “pays the full cost

of such coverage for ‘retirees and their eligible dependents’ according to the terms of

the Health Insurance Agreement.” (Dkt. #102 Exs. 22, 23, PL Ex. 8 p. 17; Ex. 24 p.

17)

Retirement summaries BorgWarner provided to employees upon application for

retirement are filled with references to the tie between the survivor pension option and

a surviving spouse’s lifetime eligibility for company-paid insurance. (Dkt. #102 Exs.

24, 25, 26, PL Exs. 9, 22, 55) Similar documents in Maurer v. Joy Technologies, 212

F.3d 907, 918 (6th Cir. 2000); Policy v. Powell Pressed Steel Co., 770 F.2d 609, 615

(6th Cir. 1985); and Yard-Man, 716 F.2d at 1481 were found to be evidence of

vesting.

BorgWarner Benefit Manager Nuerge, in a September 1999 memo, specifically

contrasted the difference between Category A Retirees who “would get Company

provided Life & Health coverages” with Category B Retirees who were not entitled

to “Company provided Life or Health coverages.” (Dkt. #102 Ex. 27 PL Ex. 28)

BorgWarner Human Resource Director Kohler’s letter to retirees in 1998 stated that

if an employee was retired before March 12, 1998, “benefits will be determined under

the Plan as it existed at the time of retirement or termination.” (Dkt. #102 Ex. 3

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French Dep. Ex. 8, Ex. A) This is more extrinsic evidence that BorgWarner knew the

benefits were vested.

DTP’s course of conduct also is evidence of a lifetime commitment to provide

the same benefits to Class Members. The 1989 HIA expired in 1992, but up until

2006 (when DTP first attempted to change retiree healthcare benefits), DTP continued

to provide the exact same benefits to employees who retired under the 1989 HIA. The

1992 and 1995 HIAs expired in 1998, but BorgWarner continued the same benefits

for retirees until 2006.

II. BorgWarner’s Claim That Plaintiffs’ Retiree Health Care Benefits Are Not

Vested Is Without Merit.

A. The Self-Serving “Agreements to Disagree” Do Not Negate the Plain

Language of Article VIII of the HIAs.

The fact that both parties made self-serving statements as to whether retiree

health care benefits were vested in 1990, and again in 2009 in the Plant Shutdown

agreement, is immaterial. (Dkt. #102 Ex. 21 p. 16; Dkt. #112 Res. Ex. 1) To allow

one party to nullify an agreement based on an after-the-fact self-serving claim would

end contract law as we know it. Moreover, neither the 1990 ACME Agreement nor

the Plant Shutdown Agreement was an agreement that related to the duration of retiree

health care benefits -- those provisions are in Article VIII of the HIAs. The ACME

Agreement’s and Plant Shutdown Agreement’s “agreement to disagree” have no

bearing on whether the HIAs at issue provide for vested retiree health care. Under

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-8-

BorgWarner’s reading, the fact that the Company claimed the benefits are not vested,

prejudices the Plaintiffs’ position that the benefits are vested. The ACME

Agreement’s and the Plant Shutdown Agreement’s plain language is exactly the

opposite -- neither party’s position on the duration of benefits was prejudiced by the

agreements to disagree.

B. Exhibit A of the HIAs Is Evidence of Vesting.

Defendants also claim the Termination of Coverages provision in Exhibit A,

Section M.2 to the HIAs means retiree health care benefits terminate when the HIA

terminates. This contention is rebutted by the evidence set forth above that the

benefits were vested. Defendants’ tortured reading of the provision turns the

Section’s actual meaning on its head. Exhibit A, Section M.2 of the HIAs supports

Plaintiffs’ position because it states when an active employee retires or an active

employee or retiree dies, their right to health care benefits is set forth in the

continuation provision of the HIAs. (Dkt. #102 Ex. 2 p. 65-66; Ex. 5 p. 72-73; Ex.

6 p. 74-75) The HIAs’ continuation provision for retirees and surviving spouses of

retirees is Article VIII, which provides that health care benefits continue as long as the

retiree or surviving spouse receives a pension. 

C. Under Controlling Precedent, SPDs Cannot Modify Vested Benefits.

Defendants claim that the Company-issued SPDs provide it with a unilateral

right to terminate, change or modify retiree health care benefits. This contention is

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contradicted by the SPD’s plain language. Here, the SPDs specifically provide that

the health care plan is maintained pursuant to a CBA and an HIA. (Dkt. #102 Ex. 2

p. 121; Ex. 5 p. 130; Ex. 6 p. 132) The SPD also explicitly states that the termination

individual insurance coverage must be in accordance with the HIA. Id. Therefore, the

SPDs are specifically qualified by the parties’ collectively bargained HIAs and the

provisions of the HIAs govern all coverages and exclusions.

In Bender, Reese, Prater and McCoy, the Sixth Circuit found that similar

reservation of rights language in SPDs were not sufficiently unqualified to vitiate

collectively bargained language to the contrary. The same is true here.

III. The HIAs Require Mutual Consent to Make Changes in Benefits.

The Court has indicated that even if the benefits are vested, the holdings in

Reese I and Reese II allows the Defendant to make “reasonable” changes to the

benefits. Plaintiffs respectfully request that the Judge reconsider this view. Recent

cases have distinguished the holdings in Reese I and Reese II where the parties

contractually agreed that retiree health care changes can only be made by mutual

consent.

In Moore v. Menasha Corp., 690 F.3d 444, 459 (6th Cir. 2012), cert. denied

133 S.Ct. 1643 (2013) the Sixth Circuit held:

By offering vested healthcare coverage to the retired employees and their

spouses, and by agreeing that the CBAs could only be modified on the

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signed, mutual consent of the parties, [Menasha] waived its ability to

unilaterally alter or terminate Plaintiffs’ healthcare coverage. 

Moore continued:

Our finding does not wholly foreclose Defendant from adjusting

coverage; rather, it simply underscores the procedure Defendant must

follow in order to do so. Id.

That procedure, Moore held, permits changes only “by mutual agreement of the

parties.” Id. Absent “mutual agreement” to changes, the Sixth Circuit held, vested

retirement benefits are “forever unalterable.” Id. at 458-459.

In Hargrove v. EaglePicher Corp., 852 F. Supp.2d 851, 855-856 (E.D. Mich.

2012), the CBAs provided that “current benefits” at retirement were not to be

“terminated, modified, etc. without union consent.” The employer’s unilateral

changes -- grounded on the employer’s “mistaken reliance on a supposed

‘reasonableness’ standard derived from” Reese I -- violated ERISA and the CBAs. Id.

Likewise, United Steelworkers v. Kelsey-Hayes, 2013 U.S. Dist LEXIS 58352

(E.D. Mich. 2013), held the employer’s unilateral changes violated ERISA and the

CBAs. (Dkt. #120 Ex. 1) United Steelworkers factually distinguished Reese I -- “the

CBAs in Reese contained no mutual consent restrictions” -- finding that the CBAs,

like the CBAs in Moore, “mandate mutual agreement as opposed to the unilateral

modification” and that the employer’s ostensibly “reasonable” changes were

wrongfully imposed without the retirees’ consent and without union agreement. Id.

at *9.

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In Zino v. Whirlpool Corp., 2013 U.S. Dist. LEXIS 121750 (N.D. Ohio 2013),

the court recognized that Reese “is not a case of general application.” (Ex. 1 at *26-

27) Zino noted that central to Reese was “[c]ompelling evidence” that “the parties did

not perceive the relevant CBAs as establishing fixed, unalterable benefits,” reflected

in negotiation of the “material alteration” -- “the imposition of a ‘managed care’

program upon all retirees, past and future.” Id. Zino noted, too, that Reese “did not

mention the existence of any CBA provision” -- like the one in Zino -- “requiring

changes to be made with the mutual assent of both parties.” Zino reiterated: “Reese

is, therefore, wedded to the facts of that case.”

Here, the HIAs, like in Moore, United Steelworkers and Hargrove, contain

mutual agreement provisions limiting BorgWarner’s ability to make unilateral changes

in benefits. More specifically, the HIAs state:

A. . . . If, as a result of such [federal or state] laws, the level of

benefits provided for any group of employees (including retired

employees), or surviving spouses, or their dependents, is generally

lower than the corresponding level of benefits hereunder, the

Company upon mutual agreement with the Union shall provide

a plan of benefits which are supplementary to the benefits

provided by law to the extent necessary to make total benefits as

nearly comparable as practicable to the benefits provided

hereunder with such contributions by employees (including retired

employees) or surviving spouses as are mutually determined to be

consistent with the contributions specified hereunder.

B. The provisions of Paragraph A above to the contrary

notwithstanding and upon mutual agreement with the Union, the

Company, if such laws permit, may substitute a plan of benefits

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for the benefits provided by such laws and modify the applicable

provisions of this Agreement to the extent and in the respect

necessary to secure the approval of such substitution from the

appropriate governmental authority. The Company may make

such plan available to employees, (including retired employees)

or surviving spouses and their dependents and require from them

such contributions as are mutually determined to be consistent

with the contributions established hereunder. (emphasis added)

(Dkt. #102 Ex. 2, p. 15; Ex. 5, p. 13-14; Ex. 6, p. 13-14) 

Therefore, this case should be viewed under the precedent set in Moore, and

followed by this court in United Steelworkers and Hargrove, so that if the benefits

here are found vested, they may not be unilaterally changed by BorgWarner.

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IV. Conclusion

For the above-stated reasons, Plaintiffs respectfully request that this Honorable

Court enter summary judgment as to liability in their favor.

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

Dated: September 16, 2013

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CERTIFICATE OF SERVICE

I hereby certify that on September 16, 2013, I electronically filed the foregoing

paper with the Clerk of the Court using the ECF system which will serve it upon:

Bobby R. Burchfield

Joshua D. Rogaczewski 

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; Fax: 248-354-9650

dradtke@michworklaw.com 

rmcclow@michworklaw.com

prorai@michworklaw.com

P:\RHC Cases\BorgWarner\2009 MI Lawsuit\Pleadings\Supp SummJudgment-BRF.wpd

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