Beauchamp v. Dow Chemical Co.

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

Page 286

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.

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 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". 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 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. The same criticism applies to the second allegation. While an assault is an intentional tort, plaintiff's specific description of the "assault" reduces it to a claim of intentional exposure to chemicals without the plaintiff's knowledge or consent. ² However, the third allegation clearly alleges both an intentional act by the employer and an intentional injury caused by that act. Because this allegation properly alleges an intentional tort, we hold that it is not barred by the exclusive remedy provision of the WDCA and may be brought in circuit court. This holding is supported by prior decisions of this Court. Broaddus, supra, and Slayton v. Michigan Host, Inc., 122 Mich.App. 411, 332 N.W.2d 498 (1983).

Plaintiffs' final allegation is a count of breach of contract. This claim, like a claim of sex discrimination, is clearly outside the scope of the WDCA. Slayton, supra; Pacheco v. Clifton, 109 Mich.App. 563, 311 N.W.2d 801 (1981), lv. gtd. 417 Mich. 888, 330 N.W.2d 849 (1983), and Stimson v. Michigan Bell Telephone Co., 77 Mich.App. 361, 258 N.W.2d 227 (1977). The distinction between contractual claims and claims properly brought within the WDCA was accurately made in Milton v. Oakland County, 50 Mich.App. 279, 283-284, 213 N.W.2d 250 (1973):

"In Sheppard v. Michigan National Bank, 348 Mich 577; 83 NW2d 614 (1957), the Court articulated the purpose of the act as providing a method of compensating workmen for industrial injuries upon the basis of trade risks relating to the industry and charged as a part of the cost to it. Similarly, the Court in Crilly v. Ballou, 353 Mich 303, 308; 91 NW2d 493, 496 (1958), stated:

" 'The consuming public, not charity, public or private, must foot the bill for work-incurred injuries.' (Emphasis added.)

"Thus, we are struck with the obvious that the Workmen's Compensation Act is designed to compensate physical and mental work-related injuries.

"A review of plaintiff's various claims in his civil suit against defendant reveal a combination of physical or mental injuries and damages created by defendant's alleged breach of the employment contract for violation of the governing merit system. It is beyond question that plaintiff's claims falling within this latter category, if proved, cannot be classified as industrial injuries within the meaning of the Workmen's Compensation Act. While plaintiff's alleged injuries for muscle fatigue and mental depression fall within the act as his exclusive remedy, plaintiff has a right to judicial review of his claims for additional compensation, improper discharge, and violation of the merit-system rules. The distinction between compensation for industrial injuries and damages arising from the employment relationship which are contractual in nature is undeniable." (Footnotes omitted.)

We concur in this analysis and would reverse the trial court as to counts III and IV of plaintiffs' complaint. Plaintiffs are entitled to the damages ordinarily available for intentioal infliction of emotional distress and breach of contract, although they may not recover twice for those damages compensable in workers' compensation.

Affirmed in part and reversed in part.

J.H. GILLIS, Judge (dissenting).

I dissent. Although artfully drafted to appear otherwise, plaintiffs' complaint seeks recovery for personal injuries which fall within the exclusive remedy provision of the Worker's Disability Compensation Act (WDCA), M.C.L. Sec....