Beauchamp v. Dow Chemical Co.

• Court: Court of Appeal of Michigan (US)
• Citation: 364 N.W.2d 286,140 Mich.App. 699
• Docket Number: Docket No. 69429
• Parties: Ronald BEAUCHAMP and Karen Beauchamp, his wife, Plaintiffs-Appellants, v. DOW CHEMICAL COMPANY, a Delaware corporation, doing business in Michigan, Defendant-Appellee.
• Decision Date: 01 April 1985

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364 N.W.2d 286 140 Mich.App. 699 Ronald BEAUCHAMP and Karen Beauchamp, his wife, Plaintiffs-Appellants,
v.
DOW CHEMICAL COMPANY, a Delaware corporation, doing business
in Michigan, Defendant-Appellee. Docket No. 69429. Court of Appeals of Michigan. Submitted Oct. 4, 1983.
Decided Sept. 20, 1984.
Released for Publication April 1, 1985.

Page 287

[140 Mich.App. 701] Steve J. Polich, P.C. by Roy P. Polich, Iron River, for plaintiffs-appellants.

McNeil, Mouw, Celello & Torreano by John A. Torreano, Iron Mountain, for defendant-appellee.

Before MAHER, P.J., and J.H. GILLIS and GRIBBS, JJ.

PER CURIAM.

Plaintiffs appeal as of right from the trial court's order granting defendant's motion for summary judgment pursuant to GCR 1963, 117.2(1). ¹ Plaintiffs had sued defendant in circuit court for damages arising from plaintiff Ronald Beauchamp's exposure to chemicals on the job. In their complaint, plaintiffs alleged (1) "That Defendant * * * intentionally misrepresented

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and fraudulently concealed the potential danger to plaintiff, Ron Beauchamp's, physical well being from exposure to said chemical[s]"; (2) "That Defendant * * * intentionally assaulted Plaintiff, Ronald Beauchamp, exposing him to said dangerous chemicals without his knowledge and/or consent"; (3) "That Defendant * * * committed the extreme and outrageous act of exposing Plaintiff, Ronald Beauchamp, to said chemicals" and "That Defendant * * * had knowledge of the dangerous potential of exposure to said chemicals and, therefore, intended to inflict Plaintiff * * * with severe emotional distress"; and (4) "As part of Plaintiff, Ronald Beauchamp's, contract of employment, Dow Chemical Company, agreed to provide safe working conditions" and "That allowing Plaintiff * * * to be exposed to said chemicals was a breach of said employment contract". [140 Mich.App. 702] The trial court held that plaintiffs' exclusive remedy was pursuant to the Worker's Disability Compensation Act (WDCA), M.C.L. Sec. 418.131; M.S.A. Sec. 17.237(131), and granted summary judgment to defendant.

We believe that the trial court correctly granted summary judgment as to the first two allegations but erred in granting it as to the second pair. This holding is premised on our understanding that an allegation of a "true" intentional tort is not within the exclusive remedy provision of the WDCA. In so interpreting the WDCA, we join in the position of Judge T.M. Burns, as expressed in his concurrence in Barnes v. Double Seal Glass Co. Inc., 129 Mich.App. 66, 78, 341 N.W.2d 812 (1983).

Various panels of this Court have held that the exclusive remedy provision of the WDCA does not bar recovery in circuit court for an injury arising from an intentional tort. Seals v. Henry Ford Hospital, 123 Mich.App. 329, 333 N.W.2d 272 (1983); Kissinger v. Mannor, 92 Mich.App. 572, 285 N.W.2d 214 (1979); Broaddus v. Ferndale Fastener Div. Ring Screw Works, 84 Mich.App. 593, 269 N.W.2d 689 (1978), lv. den. 403 Mich. 850 (1978). However, as discussed in Judge Burns's concurrence in Barnes, merely because the plaintiff has alleged what he claims to be an intentional tort does not mean that the plaintiff is therefore automatically outside the act. Genson v. Bofors-Lakeway, Inc., 122 Mich.App. 470, 332 N.W.2d 507 (1983). For instance, in a suit against an employer, the injured employee may not merely claim that the employer intentionally injured him when the gravamen of the suit is a claim of assault against co-workers acting independently of the employer. Unless the employee alleges that the employer intended the co-workers to assault the employee, the complaint in essence alleges only that the employer was [140 Mich.App. 703] negligent in permitting the assault. Such a claim properly belongs within the exclusive remedy provision of the WDCA. See Burgess v. Holloway Construction Co., 123 Mich.App. 505, 332 N.W.2d 584 (1983), and McKinley v. Holiday Inn, 115 Mich.App. 160, 320 N.W.2d 329 (1982), lv. den. 417 Mich. 890 (1983). "In order to allege an intentional tort outside the act, the plaintiff must allege that the employer intended the injury itself and not merely the activity leading to the injury." Barnes, supra, 129 Mich.App. 80, 341 N.W.2d 812.

In applying this standard to the allegations made in this case, we find that the first allegation alleges only that defendant intentionally concealed the potential danger of exposure to chemicals from plaintiff. While an intentional act is alleged, an intentional tort is not. There is no allegation that defendant intentionally concealed the danger with the intent to injure plaintiff....