Arntz v. Southwestern Wilbert Corp.

• Decision Date: 09 March 1987
• Docket Number: Docket No. 90060
• Citation: 156 Mich.App. 309,401 N.W.2d 358
• Parties: Maurice ARNTZ, Plaintiff-Appellant, v. SOUTHWESTERN WILBERT CORPORATION, a Michigan Corporation, Robert Strouse, and Steven Strouse, Defendants, and Crystal Springs Cemetery, a division of the City of Benton Harbor, a municipal corporation, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 358

401 N.W.2d 358

156 Mich.App. 309

Maurice ARNTZ, Plaintiff-Appellant, v. SOUTHWESTERN WILBERT CORPORATION, a Michigan Corporation Robert Strouse, and Steven Strouse, Defendants and Crystal Springs Cemetery, a division of the City of Benton Harbor, a municipal corporation, Defendant-Appellee.

Docket No. 90060.

Court of Appeals of Michigan.

Submitted Oct. 9, 1986.

Decided Nov. 17, 1986.

Released for Publication March 9, 1987.

Randolph McCarthy, Jr., P.C. by Kenneth Kobayashi, Kalamazoo, for plaintiff-appellant.

Straub, Seaman & Allen, P.C. by Douglas C. Allen, St. Joseph, for defendants.

Before MacKENZIE, P.J., and T.M. BURNS and JOSLYN, ^* JJ.

PER CURIAM.

Plaintiff appeals as of right from an order of the trial court granting defendant cemetery's motion for summary disposition pursuant to MCR 2.116(C)(10). We affirm.

Plaintiff, a general assistance recipient, is a participant in the Department of Social Services' (DSS) Community Work Experience Program, commonly referred to as "work fare". Under the program, employable general assistance recipients are required to work on a work relief or work training project in return for assistance given. See M.C.L. Sec. 400.55a(1)(d); M.S.A.Sec. 16.455(1)(1)(d). DSS matches program participants to interested work sites, calculates the number of hours per month each participant must work, and sends them to the worksite to work under the direction of worksite personnel. Participants do not receive "wages" from either the worksite or DSS; instead, they receive a continued general assistance grant from the state. M.C.L. Sec. 400.55a(2); M.S.A. Sec. 16.455(1)(2).

In April, 1982, plaintiff was assigned by DSS to report for work at defendant cemetery where his primary job duty was grounds maintenance. While working at the cemetery in July, 1982, plaintiff was injured when a trailer in which he was riding overturned. Apparently plaintiff applied for and received workers' compensation benefits from State of Michigan.

Plaintiff commenced the instant negligence action in February, 1984, against defendant Steven Strouse (driver of the tractor pulling the trailer from which plaintiff fell), defendants Southwestern Wilbert Corporation and Robert Strouse (the burial vault company which employed Steven Strouse and the company's owner), and defendant cemetery. All defendants filed motions for summary disposition on the basis that plaintiff was injured while in the course and scope of his employment and that the exclusive remedy provision of the Workers' Disability Compensation Act, M.C.L. Sec. 418.101 et seq.; M.S.A. Sec. 17.237(101) et seq., barred plaintiff's claims. The motions were initially denied. Defendants renewed their motions following extensive discovery. The trial court again denied the motions of defendants Steven Strouse, Robert Strouse, and Southwestern Wilbert. The court, however, granted defendant cemetery's motion, ruling that it was plaintiff's employer at the time of the accident and was therefore barred from suit under the exclusive remedy provision of the Workers' Disability Compensation Act. Plaintiff subsequently settled with the remaining defendants.

It is undisputed that plaintiff, as a "work fare" participant, is entitled to workers' compensation benefits. See M.C.L. Sec. 400.55a(1)(d); M.S.A. Sec. 16.455(1)(1)(d). It is also apparently undisputed that plaintiff received such benefits from the State of Michigan. The sole issue on appeal is whether the trial court erred in ruling that defendant cemetery was an "employer" of plaintiff for purposes of the Workers' Disability Compensation Act, so that plaintiff was barred by the exclusive remedy provision of the act from maintaining a negligence action against the cemetery. We find no error.

The exclusive remedy provision provides that "[t]he right to the recovery of benefits as provided in this act shall be the employee's exclusive remedy against the employer." M.C.L. Sec. 418.131; M.S.A. Sec. 17.237(131). The issue of whether employment exists for purposes of this statute is resolved by applying an economic reality test. See, e.g., Renfroe v. Higgins Rack Coating & Mfg. Co., Inc, 17 Mich.App. 259, 169 N.W.2d 326 (1969); Farrell v. Dearborn Mfg. Co., 416 Mich. 267, 330 N.W.2d 397 (1982). This test looks to the totality of the circumstances surrounding the performed work, including control over the worker, payment of wages, hiring and firing, and the responsibility for the maintenance of discipline. Farrell, supra, p. 276, 330 N.W.2d 397. Under the test, a worker may have more than one "employer" for purposes of the exclusive remedy provision. See Renfroe, supra.

In this case, DSS contacted the cemetery to determine if there was an interest in engaging the services of "work fare" participants. The cemetery responded affirmatively and described the work such participants would perform. DSS then assigned plaintiff to the cemetery worksite on the basis of his employment experience and geographical proximity to the work site, and calculated the number of hours plaintiff would be required to work there. Defendant cemetery directly supervised plaintiff's work, scheduled his work hours, assigned him to particular work areas, and instructed plaintiff as to how his work was expected to be done. The cemetery was responsible for monitoring plaintiff's work hours and reporting them to DSS. Work materials and equipment were provided by the cemetery. The cemetery could discipline plaintiff and could discharge him from further duties if dissatisfied with his performance. A DSS employee "inspected" the worksite approximately once a month. As noted above, plaintiff received no "wages" either from DSS or from defendant cemetery.

Plaintiff contends that, applying the economic reality test to these facts, it must be concluded that the State of Michigan was his employer. We are of the opinion instead that plaintiff was an employee of both the State of Michigan and defendant cemetery. Both DSS and defendant cemetery controlled plaintiff and both were involved in his hiring and firing. DSS assigned him to a particular worksite, set the number of hours he was required to work, and authorized his continued receipt of general assistance; defendant cemetery...