Kotarski v. Aetna Casualty and Surety Co.

Citation244 F. Supp. 547
Decision Date12 August 1965
Docket NumberCiv. No. 25587.
PartiesBernard KOTARSKI, Special Administrator of the Estate of Frederick E. Gutowski, deceased, Plaintiff, v. AETNA CASUALTY AND SURETY COMPANY, a Connecticut corporation, Defendant.
CourtU.S. District Court — Western District of Michigan

George L. Downing, Kelman, Loria, Downing & Craig, Detroit, Mich., for plaintiff.

Buell Doelle, Vandeveer, Haggerty, Doelle, Garzia, Tonkin & Kerr, Detroit, Mich., for defendant.

KAESS, District Judge.

This action is brought by the Administrator of the Estate of Frederick E. Gutowski, decedent, an employee of the Goodyear Tire and Rubber Company, who was fatally injured at its plant in Jackson, Michigan, on December 26, 1963, in an accident arising out of and in the course of his employment. The defendant, Aetna Casualty and Surety Company, is the workmen's compensation insurance carrier for Goodyear and has entered into payment of the statutory benefits to the widow and child.

The accident occurred when Gutowski was operating a machine known as a rubber calendar, which consists of two large rolls, placed one above the other, rotating in such a way as to pull any object placed between them into a 4½ inch opening. While working in a space 24 inches wide, next to the machine, decedent was drawn through the opening and crushed to death. The machine was not equipped with any device designed to stop the rolls if a person or his clothing should become entangled in the rolls.

This action is brought pursuant to the third-party liability provision of the Michigan Workmen's Compensation Act, which allows an injured employee to accept workmen's compensation benefits and also proceed against a third person who caused the injury.1

Plaintiff alleges in his complaint that Aetna voluntarily undertook to provide safety inspection services for the benefit of Goodyear and its employees; that it negligently performed this undertaking by failing to conduct regular inspections, failing to install guards where needed (in particular, on this machine), failing to advise Goodyear of this hazard and of the devices to remove or reduce such hazard, failing to refrain from expressly or impliedly representing to Goodyear that the machine could safely be operated in this condition, and failing to acquaint themselves with literature of the National Safety Council concerning the guarding of this type of machine; and that this negligence was the proximate cause of Gutowski's death. Defendant moved under Rule 12(b) (6) of the Federal Rules of Civil Procedure to dismiss the action on the ground that the complaint failed to state a claim against the defendant upon which relief can be granted, or, in the alternative, for summary judgment on the ground that there is no genuine issue as to any material fact, because it is not subject to liability as a third party tortfeasor under the Michigan Workmen's Compensation Act. Defendant contends that because, under the Act, it is primarily obligated to assume all obligations imposed upon the employer as far as the payment of compensation, death benefits, medical expenses, etc. are concerned, it shares the immunity granted the employer by the Act; and further asserts that, because it is subject to the Act and primarily obligated to assume the obligations of the employer, it is such a fundamental and necessary part of the workmen's compensation program that it cannot be regarded as a third party under the Act.

Rule 12(b) of the Federal Rules of Civil Procedure states:

"* * * If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56."

The words "matters outside the pleading * * * not excluded by the court" and the "material made pertinent to such a motion by Rule 56" refer to affidavits as is provided by that rule. Baltimore & O. R. R. v. American Fidelity & Cas. Co., 34 F.R.D. 148 (W.D.Pa.1963). The defendant has filed an affidavit in support of its motions which recites the pertinent terms of the insurance contract and relevant statutory provisions.

Rule 56(c) provides:

"* * * The (summary) judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. * * *"

The allegations made in the complaint present questions of fact as to whether defendant owed a duty of providing safety inspection services to Goodyear, whether it performed that duty negligently, and whether such negligence caused the death of plaintiff's decedent. The defendant in its affidavit does not contradict the facts as alleged by the plaintiff, as these factual issues are not met if defendant is correct in its contention that on the basis of the statute it is entitled to judgment as a matter of law. Plaintiff attacks the affidavit filed by defendant on the ground that it was signed by defendant's counsel, who had no personal knowledge of, or ability to testify to, the facts therein, and thus does not comply with the requirements of section (e) of Rule 56. Section (e) provides that supporting affidavits "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." The affidavit merely recites terms of the insurance contract and certain statutory provisions. This court cannot say that defendant's attorney is without personal knowledge as to these facts or that he could not testify thereto. However, even if the defendant's affidavit is not in accord with Rule 56(e), the court may disregard all factual information supplied by counsel for defendant in its affidavit and briefs and consider the merits and vitality of the complaint solely in the light of the arguments and authority as contained in the oral argument of the respective counsel and their briefs in support thereof. See, Baltimore & O. R. R. Co. v. American Fidelity & Cas. Co., supra. In fact, however, this is not even necessary here because at this point in the proceedings defendant is not disputing the facts alleged in the complaint and for the purposes of this motion the court shall consider these facts to be true as alleged. Thus, the question before this court is entirely one of law: Is the workman's compensation insurance carrier of the decedent's employer, who must pay the statutory benefits provided by the Michigan Workman's Compensation Act, also subject to liability under the third-party liability provision of that Act?

The appellate courts of Michigan have not passed upon the question. In view of the fact that the problem involves interpretation of an important state statute, the court carefully considered the advisability of abstention. However, unlike many cases in which abstention has been found to be appropriate there is no federal constitutional issue which turns on the interpretation of state law, no real danger of interfering with state administration of state affairs, and no other compelling policy considerations present which warrant abstention. Thus, inasmuch as neither party has requested it and abstention would be likely to prolong the litigation, it seems desirable that the court exercise its jurisdiction. See, Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 84 S.Ct. 1293, 12 L.Ed.2d 350 (1964); Meredith v. City of Winter Haven, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9 (1943); In re Mohammed, 327 F.2d 616 (6th Cir. 1964).

The legal foundation upon which plaintiff's claim is based is the recognized principle that liability can arise from the negligent performance of a voluntary undertaking. One who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully. Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275, 23 A.L.R. 1425 (1922) (Cardozo, J.); see also 38 Am.Jur., Negligence, § 17 (1941). This is the rule in Michigan. Hart v. Ludwig, 347 Mich. 559, 564, 79 N.W.2d 895 (1956); Sweet v. Ringwelski, 362 Mich. 138, 143, 106 N.W.2d 742, 90 A.L.R.2d 1434 (1961). There are now several cases in which a workmen's compensation insurance carrier has been held to be subject to liability for the negligent performance of voluntarily undertaken safety inspections. Nelson v. Union Wire Rope Corp., 31 Ill.2d 69, 199 N.E.2d 769 (1964); Mays v. Liberty Mutual Ins. Co., 323 F.2d 174 (3rd Cir. 1963); Smith v. American Employers' Ins. Co., 102 N.H. 530, 163 A.2d 564 (1960); Fabricius v. Montgomery Elevator Co., 254 Iowa 1319, 121 N.W.2d 361, 93 A.L.R.2d 591 (1963). In these cases it was assumed or concluded that the defendant had "volunteered" to perform safety inspection services, thereby creating a duty to make such inspections without negligence. However, the fact that the insurer has gratuitously undertaken to make inspections which he was not legally bound to make, does not necessarily make it a "volunteer" under Michigan law. In Pace v. Gibson, 357 Mich. 315, at page 320, 98 N.W.2d 654, at page 657 (1959), Mr. Justice Carr speaking for a unanimous court, stated, that whether a party is a volunteer depends on whether he had an interest in the performance of the work in which he undertook to assist. Justice Carr then quoted from 92 C.J.S., Volunteer, p. 1032:

"It has been said that no definition of a volunteer can be given without qualification, since each case must be decided on its own merits. In a general sense a `volunteer' is one who does or undertakes to do that which he is not legally or morally bound
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