Hesse v. Ashland Oil, Inc.

• Decision Date: 24 April 2002
• Docket Number: Docket No. 118548.
• Citation: 642 N.W.2d 330,466 Mich. 21
• Parties: Kenneth D. HESSE, Personal Representative of the Estate of Jason L. Hesse, Deceased, Kenneth D. Hesse, Cynthia R. Hesse, and Amy R. Hesse, a Minor, by her next friend, Kenneth D. Hesse, Plaintiffs-Appellees, v. ASHLAND OIL, INC., formerly known as Ashland, Inc., a foreign corporation, doing business as Valvoline Instant Oil Change and as the Valvoline Company, Defendant-Appellant, and Chippewa Valley Schools, James J. Rivard, James P. Murphy, and Ruth Ann Booms, Jointly and Severally, Defendants.
• Court: Michigan Supreme Court

642 N.W.2d 330

466 Mich. 21

Kenneth D. HESSE, Personal Representative of the Estate of Jason L. Hesse, Deceased, Kenneth D. Hesse, Cynthia R. Hesse, and Amy R. Hesse, a Minor, by her next friend, Kenneth D. Hesse, Plaintiffs-Appellees, v. ASHLAND OIL, INC., formerly known as Ashland, Inc., a foreign corporation, doing business as Valvoline Instant Oil Change and as the Valvoline Company, Defendant-Appellant, and Chippewa Valley Schools, James J. Rivard, James P. Murphy, and Ruth Ann Booms, Jointly and Severally, Defendants.

Docket No. 118548.

Supreme Court of Michigan.

April 24, 2002.

Worsfold Macfarlane McDonald, P.L.L.C. (by Charles H. Worsfold, Evan L. Macfarlane, and Michael D. Ward), Grand Rapids, MI, for the defendant-appellant.

PER CURIAM.

In this case, plaintiffs, the parents of the decedent,¹ claimed that the decedent's employer was liable in tort for the negligent infliction upon plaintiffs of emotional distress, caused when plaintiffs were present at their son's workplace at the time of his death. The circuit court denied defendant's motion for summary disposition. The Court of Appeals granted leave to appeal and affirmed the denial of summary disposition on the claim of negligent infliction of emotional distress.² We reverse in part the judgment of the Court of Appeals and remand this case to the Macomb Circuit Court for entry of summary disposition in favor of the defendant on the claim of negligent infliction of emotional distress. Plaintiffs' cause of action is barred by the exclusive remedy provision of the Worker's Disability Compensation Act (WDCA), M.C.L. § 418.131.

I

The sixteen-year-old decedent was hired by defendant Ashland Oil, Inc.,³ through the Chippewa Valley Schools' work study plan. After securing a work permit, decedent began working for defendant at defendant's "Instant Oil Change" service facility. On June 2, 1995, a customer brought in a five-gallon bucket that was filled with a liquid believed by a coemployee of decedent to be waste oil. Following procedures outlined by the defendant, the bucket was emptied into a "catch basin." Toward the end of normal business hours, there was a problem with draining the catch basin. The coemployee set about to check the level of the waste oil in the catch basin. He purportedly did this by using a disposable lighter, which caused an explosion.⁴ In the ensuing fire, decedent was killed. Decedent's parents learned of the explosion and fire almost immediately and went to the service center. While at the service center, plaintiffs were told of their son's death.

II

Plaintiffs sued their son's employer, his school, and employees of the school.⁵ Of the several causes of action brought by plaintiffs against defendant Ashland, only one remained after the Court of Appeals issued its unpublished per curiam opinion on January 12, 2001, 2001 WL 789193 (Docket No. 209075). This was a claim by plaintiffs of negligent infliction of emotional distress.⁶ Plaintiffs claimed damages from witnessing the death of their child. Defendant asserts that the cause of action is barred by the exclusive remedy provision of the WDCA, M.C.L. § 418.131, which states:

(1) The right to the recovery of benefits as provided in this act shall be the employee's exclusive remedy against the employer for a personal injury or occupational disease. The only exception to this exclusive remedy is an intentional tort. An intentional tort shall exist only when an employee is injured as a result of a deliberate act of the employer and the employer specifically intended an injury. An employer shall be deemed to have intended to injure if the employer had actual knowledge that an injury was certain to occur and willfully disregarded that knowledge. The issue of whether an act was an intentional tort shall be a question of law for the court. This subsection shall not enlarge or reduce rights under law.

(2) As used in this section and section 827, "employee" includes the person injured, his or her personal representatives, and any other person to whom a claim accrues by reason of the injury to, or death of, the employee, and "employer" includes the employer's insurer and a service agent to a self-insured employer insofar as they furnish, or fail to furnish, safety inspections or safety advisory services incident to providing worker's compensation insurance or incident to a self-insured employer's liability servicing contract. [Emphasis added.]

III

The Court of Appeals held that the claim for negligent infliction of emotional distress brought by plaintiffs, even when it concerned a work-related accident, was a separate tort and thus not within the bar of the exclusive remedy provision. The plain language of the statute, however, states that the exclusive remedy for an employee, including "his or her personal representatives, and any other person to whom a claim accrues by reason of the injury to, or death of, the employee," is found in the WDCA. M.C.L. § 418.131(2).

This provision is dispositive of this case. Here, the plaintiffs' claim has accrued by reason of the death of an employee of the defendant. The plaintiffs are within the category of individuals barred from suit, namely, as defined by § 131(2) of the WDCA, "any other person to whom a claim accrues by reason of the ... death of... the employee...." Thus, the claim is barred.

In asserting that plaintiffs' negligent infliction of emotional distress claim is not barred by M.C.L. § 418.131, the Court of Appeals and the dissent here rely substantially on Barnes v. Double Seal Glass Co., Inc., 129 Mich.App. 66, 341 N.W.2d 812 (1983), and Auto Club Ins. Ass'n v. Hardiman, 228 Mich.App. 470, 579 N.W.2d 115 (1998). However, those cases are materially distinguishable from the present case and, consequently, offer little guidance in its resolution.

Barnes also involved a tragic workplace death of a sixteen-year-old. In that case, the Court of Appeals held that the trial court erred, on the basis of the exclusive remedy provision of the WDCA, in granting summary disposition in favor of the employer with regard to the claim of the employee's parents for intentional infliction of emotional distress. Id. at 75-76, 341 N.W.2d 812. This result does not seem unusual in any way because M.C.L. § 418.131(1) provides for an intentional tort exception to the exclusive remedy rule of the worker's compensation scheme and that is the exception the Barnes' suit invoked. Thus, since the instant case involves a nonintentional tort claim, i.e., negligent rather than intentional infliction of emotional distress, the Barnes holding is inapposite.

Similarly, the holding of Hardiman is inapposite to the resolution of the present case. Most importantly, Hardiman did not involve a worker's compensation question; rather, it dealt with the narrow question whether damages in a non-worker's compensation civil lawsuit, involving a "negligent infliction of emotional distress" claim, constituted "derivative damages" so that insurance coverage could be limited.⁷ This issue of law is irrelevant to a discussion of the nuances of the exclusive remedy provision of the WDCA. While there is discussion in Hardiman of the distinctions between derivative and independent actions in civil litigation, the statute here, M.C.L. § 418.131, controls the lawsuit in the instant case. This statute never alludes to derivative or independent actions, but simply states that claims accruing "by reason of the injury to, or death of, the employee" are barred. Thus, because these plaintiffs have claims that have accrued "by reason of" the death of the employee, they are without a remedy, and nothing Hardiman states affects this in the slightest.

Moreover, although we regard the plain language of M.C.L. § 418.131 as decisive, we believe that our decision is reinforced by an understanding of the history of the exclusive remedy provision of the WDCA. Helpful in this regard are this Court's companion decisions in Moran v. Nafi Corp., 370 Mich. 536, 122 N.W.2d 800 (1963), and Balcer v. Leonard Refineries, Inc., 370 Mich. 531, 122 N.W.2d 805 (1963). In both Moran and Balcer, we addressed whether a claim for loss of consortium against an employer based on an injury suffered by a spouse as an employee was barred by the then much less well-defined exclusive remedy provision of the Workmen's Compensation Act, which did not then, as it does now, expressly extend to persons other than an employee.⁸

Notwithstanding the much less sweeping language in the old statute, Justice O'Hara writing for the Court had no trouble concluding in Moran that, not just an employee, but also a third party, was barred from maintaining a cause of action against an employer under the exclusive remedy provision. Justice O'Hara said:

Under the above section and the title of the act, as previously discussed, we believe any broadening of the base of recovery against the employer as a result of an industrial injury to include an action at law by any other person must, if it is to be authorized, be authorized by legislative action. We hold the legislative intent expressed in the act precludes the judicial construction contended for by plaintiff and adopted by the learned trial judge [which would have allowed the loss of consortium claim to go forward]. [Id. at 543, 122 N.W.2d 800.]⁹

In Balcer, which was considered and released with Moran, Justice Smith concluded to similar effect that the exclusive remedy provision barred a claim by a third party against the employer on the basis of an injury to an employee. He offered historical background that is edifying:

"The history of the development of statutes, such as this, creating a compensable right independent of the employer's negligence and notwithstanding an employee's contributory negligence, recalls that the keystone was the exclusiveness of the remedy. This concept emerged from a balancing of the sacrifices and gains of both employees and employers, in which the

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