Barnes v. Double Seal Glass Co., Inc., Plant 1

• Decision Date: 15 December 1983
• Docket Number: Docket No. 63107
• Citation: 341 N.W.2d 812,129 Mich.App. 66
• Parties: Wallace BARNES and Norma Barnes, Individually, and Wallace Barnes, Personal Representative of the Estate of Tim Barnes, a minor, Plaintiffs-Appellants, Cross-Appellees, v. DOUBLE SEAL GLASS COMPANY, INC., PLANT 1, Edmund C. Mogford, Roger Jackson, Stephen Coe and Robert Bolonke, Defendants-Appellees, Cross-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 812

341 N.W.2d 812

129 Mich.App. 66

Wallace BARNES and Norma Barnes, Individually, and Wallace

Barnes, Personal Representative of the Estate of Tim Barnes, a minor, Plaintiffs-Appellants, Cross-Appellees, v. DOUBLE SEAL GLASS COMPANY, INC., PLANT 1, Edmund C. Mogford, Roger Jackson, Stephen Coe and Robert Bolonke,

Defendants-Appellees, Cross-Appellants.

Docket No. 63107.

Court of Appeals of Michigan.

Submitted Feb. 3, 1983.

Decided Sept. 26, 1983.

Released for Publication Dec. 15, 1983.

Roger A. Rapaport, P.C. by Roger A. Rapaport, Lansing, for plaintiffs-appellants, cross-appellees.

Moore, Sills, Poling & Wooster, P.C. by James M. Prahler, Birmingham, for defendants-appellees, cross-appellants.

Before T.M. BURNS, P.J., and ALLEN and CYNAR, JJ.

CYNAR, Judge.

Plaintiffs, Wallace and Norma Barnes, commenced this action individually and Wallace Barnes as personal representative of the estate of Tim Barnes, their son, against their son's employer and coemployees. Defendants filed a motion for accelerated judgment on the ground that plaintiffs' suit was barred by the exclusive remedy provision of the Worker's Disability Compensation Act (WDCA). The lower court granted accelerated judgment on Counts I, II, V and VI and denied the motion on Counts III and IV. Plaintiffs appeal as of right from the accelerated judgment on Counts I, II, V and VI. Defendants filed a cross- appeal, arguing that accelerated judgment should also have been granted on Counts III and IV.

Plaintiffs' complaint alleges the following facts. Decedent, Tim Barnes, 16 years old, was illegally employed without a work permit by defendant Double Seal Glass Company (Double Seal) in Genesee County. On October 2, 1978, defendant Coe, a foreman at Double Seal, ordered three employees to load glass onto an A-frame cart and then move it to another area. Plaintiffs allege that the wheels of the cart could each withstand only 500 pounds of pressure and that the employees improperly loaded the cart so that the left front edge of the cart weighed 2,460 pounds. After the cart was loaded, Coe and the three employees tried unsuccessfully to push the cart. Other employees, including decedent, were called upon to help push the cart. The cart was immovable because the wheel underneath the heaviest load was turned perpendicular to the line of travel. During a final attempt to push the cart, the wheel shattered and the entire load of glass fell onto decedent. The glass sheared off part of decedent's skull, crushed his skull and tore major arteries.

Several employees became violently ill at the sight of the gruesome injuries. Immediately after the event, Coe went into his office for 10 to 20 minutes to compose himself, leaving decedent bleeding under the shattered glass. Plaintiffs allege that no one called for an ambulance or attempted to give decedent medical aid even though emergency help was only about four minutes away. Decedent was later put into the back of an open pick-up truck and driven to St. Joseph's Hospital in Flint.

Decedent was admitted to St. Joseph's Hospital at 10:58 a.m. on October 2, 1978, and listed in critical condition. The hospital listed decedent as "John Doe" because Double Seal's President Edmond Mogford and the other employees told hospital personnel that they found decedent by the side of the road and did not know him. No one from Double Seal notified Wallace or Norma Barnes about the accident. Decedent was pronounced dead at 11:35 a.m. on October 2, 1978. Decedent was killed by: 1) extensive multiple fractures of the skull; 2) sheared off frontal lobe above the sinus; and 3) displacements of frontal bone and parietal bone.

After decedent was left at the hospital, defendants cleaned up the accident site so that police would not be able to accurately investigate the accident. Count I of plaintiffs' complaint alleges that defendants' negligence led to the accident. Count II alleges that defendants acted negligently after the accident by failing to give decedent the prompt medical care which would have saved his life. Count III alleges that defendants intentionally failed to act after decedent's injury, thereby allowing Tim Barnes to die. Count IV alleges that defendants conspired to let decedent die because they knew that worker's compensation death benefits were radically lower than payment of disability benefits if decedent had lived, because decedent had no dependents. Counts V and VI allege that defendants intentionally inflicted emotional distress upon plaintiffs directly, as individuals.

The principal issue is whether all of the counts in plaintiffs' complaint are barred by the exclusive remedy provision of the WDCA.

An action under the wrongful death statute ¹ is derivative. In Maiuri v. Sinacola Construction Co., 382 Mich. 391, 170 N.W.2d 27 (1969), the Supreme Court held that the parents of a son killed while working for his employer were barred from bringing a wrongful death suit because the son would have been barred from bringing a civil suit because of the exclusive remedy provision of the WDCA:

"Since the cause of action of a proper plaintiff under the wrongful death act is a derivative one in that the personal representative of the deceased stands in his shoes and is required to show that the deceased could have maintained the action if death had not ensued, and since, in this case, the decedent would have been barred from an action for injuries resulting in death because of the exclusive remedy provisions of the workmen's compensation act, the trial court did not err in granting an accelerated judgment for the defendant." Maiuri, supra, p. 396, 170 N.W.2d 27.

Accordingly, the central issue presented in this case is whether decedent could have brought a civil tort action against defendants if he had survived.

When an injury is compensable under the WDCA, the exclusive remedy provision bars any common law tort action by an employee against his employer. ² Sewell v. Bathey Mfg. Co., 103 Mich.App. 732, 736, 303 N.W.2d 876 (1981). An employee "who receives a personal injury arising out of and in the course of employment" is entitled to compensation under the act. M.C.L. Sec. 418.301(1); M.S.A. Sec. 17.237(301)(1).

Plaintiffs argue that the exclusive remedy provision of the act is not applicable where plaintiffs have alleged intentional torts. This Court has recognized that an employee may bring a civil action against his employer for injuries which arose out of his employment but are not covered by the act. See Moore v. Federal Dep't Stores, Inc., 33 Mich.App. 556, 190 N.W.2d 262 (1971), lv. den. 385 Mich. 784 (1971) (false imprisonment); Stimson v. Michigan Bell Telephone Co., 77 Mich.App. 361, 258 N.W.2d 227 (1977) (sex discrimination); Broaddus v. Ferndale Fastener Div., Ring Screw Works, 84 Mich.App. 593, 269 N.W.2d 689 (1978), lv. den. 403 Mich. 850 (1978) (intentional infliction of emotional distress); Slayton v. Michigan Host, Inc., 122 Mich.App. 411, 332 N.W.2d 498 (1983) (intentional infliction of emotional distress).

As of the date of this writing, however, this Court has not agreed upon any one test to determine when the exclusive remedy provision does not bar a civil action. In Moore, the Court indicated that an employee could seek recovery outside the act where his injuries could not be compensated for under the act. This approach has not been followed in more recent cases. McKinley v. Holiday Inn, 115 Mich.App. 160, 165, 320 N.W.2d 329 (1982); Genson v. Bofors-Lakeway, Inc., 122 Mich.App. 470, 332 N.W.2d 507 (1983). Stimson and Broaddus focus primarily upon whether the essence of the tort alleged is physical or nonphysical. The McKinley panel focused on the nature of the tort alleged and whether the Legislature intended the exclusive remedy provision to preclude the employee's common-law recovery. McKinley, supra, 115 Mich.App. at p. 165, 320 N.W.2d 329. In Sewell, this Court recognized the inquiry as "whether the injuries themselves fall within the purview of the act, irrespective of the nature of the employer's acts". Sewell, supra, 103 Mich.App. at pp. 737-738, 303 N.W.2d 876. This approach was recognized recently in Slayton and Genson.

"To begin with, we agree with the defendants that the applicability of the exclusive-remedy provision of the act turns not upon the characterization of the asserted cause of action but upon whether the employee has a right to recover benefits under the act. Stimson, supra [77 Mich.App. at] 367 . Therefore, the fact that the plaintiff's suit is based on a discrimination claim is not dispositive of which forum should hear the case. A civil suit for damages based upon an alleged violation of the plaintiff's right to employment without sex discrimination is in the nature of the tort action and, as such, concerns a personal injury to the plaintiff. Stimson, supra, p. 366, fn. 3 . The act provides compensation for disabilities resulting from a personal injury suffered by an employee during the course of his or her employment. Thus, certain elements of damages in a sex discrimination suit may be barred by the act's exclusive-remedy provision, although generally a nonphysical tort such as sex discrimination falls outside the scope of the act. Stimson, supra, p. 366 ." Slayton, supra, 122 Mich.App. at pp. 415-416, 332 N.W.2d 498.

Counts I and II of plaintiffs' complaint allege a cause of action for the negligence of defendants prior to and after the accident. The trial court ruled that these counts were barred by the exclusive remedy provision. In Sewell, an allegation of gross negligence was not sufficient to take a resulting injury outside the scope of the act. Nowhere do our plaintiffs argue that decedent's injury did not arise out of and during the course of his employment. Plaintiffs are barred by the exclusive remedy provision of the WDCA from raising these claims in a civil suit. The individual coemployees of decedent are also exempt from liability...