Beaudrie v. Anchor Packing Co.

Decision Date18 August 1998
Docket NumberDocket Nos. 196195,196196
Citation231 Mich.App. 242,586 N.W.2d 96
PartiesRuth BEAUDRIE, Personal Representative of the Estate of Merel Beaudrie, Deceased, Plaintiff-Appellant, v. ANCHOR PACKING COMPANY, Armstrong World Industries, Inc., A.P. Green Refractories Company, Babcock & Wilcox Company, Brown Insulation Company, Celotex Corporation, Combustion Engineering, Eagle Picher Industries, Inc., Flexitallic Gasket Company, Inc., GAF Corporation, Garlock, Inc., H.K. Porter Company, Inc., John Crane-Houdaille, Inc., John Johnson Company, Keene Corporation, M.H. Detrick Company, Owens-Corning Fiberglass Corporation, Owens-Illinois, Inc., Pittsburgh-Corning Corporation, Raymark Industries and Standard Fuel Engineering Company, Defendants, and Silicosis and Dust Disease Fund and Detroit Edison Company, Defendants-Appellees. Juanita SMITH, Personal Representative of the Estate of Willie B. Smith, Deceased, Plaintiff-Appellant, v. ARMSTRONG WORLD INDUSTRIES, INC., Anchor Packing Company, A.P. Green Refractories Company, Brown Insulation Company, Celotex Corporation, Eagle Picher Industries, Inc., Garlock, Inc., H.K. Porter Company, Inc., Keene Corporation, Owens-Corning Fiberglass Corporation, Owens-Illinois, Inc., Pittsburgh-Corning Corporation and Standard Fuel Engineering Company, Defendants, and Silicosis and Dust Disease Fund and Ford Motor Company, Defendants-Appellees. Emogene WRIGHT, Personal Representative of the Estate of Ralph Wright, Deceased, Plaintiff-Appellant, v. ANCHOR PACKING COMPANY, A.P. Green Refractories Company, Brown Insulation Company, Celotex Corporation, Crown Cork & Seal Company, Eagle Picher Industries, Inc., Garlock, Inc., Keene Corporation, M.H. Detrick Company, Owens-Corning Fiberglass Corporation, and Standard Fuel Engineering Company, Defendants, and Silicosis Dust and Disease Fund and Johnson Controls, Defendants-Appellees. , and 196197.
CourtCourt of Appeal of Michigan — District of US

Zamler, Mellen & Shiffman, P.C. by Neil A. Kay, Southfield, Daryl Royal, Dearborn, of counsel, for plaintiffs.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., and Morrison Zack, Asst. Atty. Gen., Detroit, for Silicosis, Dust Disease, and Logging Industry Comp. Fund.

Before GAGE, P.J., and REILLY and JANSEN, JJ.

GAGE, Presiding Judge.

Plaintiffs in these consolidated appeals appeal as of right from circuit court orders modifying their prior consent judgments on remand from this Court. Beaudrie v. Anchor Packing Co., 206 Mich.App. 245, 520 N.W.2d 716 (1994). We affirm.

Plaintiffs, the personal representatives of their spouse's estates, each claimed that their spouses died of mesothelioma resulting from exposure to asbestos during the course of their employment. Before their spouses' deaths, plaintiffs and the decedents had obtained worker's compensation benefits from the decedents' employers, appellees Johnson Controls, Ford Motor Company, and Detroit Edison Company. Plaintiffs later sued various manufacturers of asbestos who they alleged were responsible for their decedents' injuries. The employers and appellee Silicosis, Dust Disease, and Logging Industry Compensation Fund (hereafter the dust fund), 1 which reimbursed the employers for a portion of plaintiffs' worker's compensation benefits, intervened and sought liens on plaintiffs' potential recoveries from the asbestos manufacturers. 2

Plaintiffs obtained settlements from some of those manufacturers and entered into consent judgments. The circuit court entered orders permitting the dust fund and the employers to exercise their liens against the entire judgments. Plaintiffs appealed. In its prior Beaudrie opinion, this Court held that in a wrongful death action, a worker's compensation carrier is entitled to reimbursement from the entire amount of the recovery awarded to an individual who is also a worker's compensation beneficiary, regardless of the type of damages recovered. Id. at 249, 520 N.W.2d 716. Therefore, the Court remanded for the necessary modifications to the consent judgments. Id. at 249-250, 520 N.W.2d 716. Plaintiffs now contend that the circuit court erred in implementing this Court's decision on remand.

I

MCL 418.827(1); MSA 17.237(827)(1) expressly permits an injured employee who is entitled to worker's compensation benefits to also obtain damages from a third party. If such a third-party recovery occurs, however, the recovery must first be used to reimburse the employer or worker's compensation insurer for worker's compensation benefits paid. MCL 418.827(5); MSA 17.237(827)(5) grants an employer or its carrier a lien on any third-party recovery for the same injury for which worker's compensation benefits have been paid. Subsection 827(5) provides in pertinent part:

Any recovery against the third party for damages resulting from personal injuries or death only, after deducting expenses of recovery, shall first reimburse the employer or carrier for any amounts paid or payable under this act to date of recovery and the balance shall immediately be paid to the employee or his or her dependents or personal representative and shall be treated as an advance payment by the employer on account of any future payments of compensation benefits.

When an employee is fatally injured and his dependents or personal representative file a wrongful death action, "any recovery" for damages resulting from the employee's death is subject to the employer's or carrier's right of reimbursement even though those damages include an award for loss of society and companionship. Jones v. McCullough, 227 Mich.App. 543, 546, 576 N.W.2d 698 (1998). The dust fund also has a statutory lien on a third-party recovery when the fund has reimbursed the employer for some or all of the expense of worker's compensation payments. MCL 418.531(3); MSA 17.237(531)(3).

The worker's compensation statute also takes into account the "expenses of recovery" in the third-party action and apportions those expenses "between the parties." These expenses specifically include attorney fees. MCL 418.827(6); MSA 17.237(827)(6) provides:

Expenses of recovery shall be the reasonable expenditures, including attorney fees, incurred in effecting recovery. Attorney fees, unless otherwise agreed upon, shall be divided among the attorneys for the plaintiff as directed by the court. Expenses of recovery shall be apportioned by the court between the parties as their interests appear at the time of the recovery.

The obvious purpose of this apportionment is to make the employer or worker's compensation carrier (and accordingly when appropriate the dust fund as well) pay a portion of the expenses connected with a third-party recovery, because the employer or carrier receives the benefit of the recovery by using it to pay the worker's compensation obligation. This is consistent with "one of the major purposes" of the legislative scheme, which is "to provide the opportunity for full recovery by each and thereby place the liability for the injury and the resulting cost upon the negligent party." Franges v. General Motors Corp., 404 Mich. 590, 613, 274 N.W.2d 392 (1979). The formula for computing the apportionment of the costs of recovery is detailed in Franges, supra at 617-623, 274 N.W.2d 392.

We note that parties eligible to recover in a third-party action may not be eligible to recover in a worker's compensation proceeding. Generally, those who can recover under the worker's compensation statutes are the employee and the employee's dependents. MCL 418.353; MSA 17.237(353). However, in a tort action, many people might recover for derivative injuries, including nondependent adult children and parents. In the present cases, a certain percentage of the recovery was allocated to the adult nondependent children of the deceased employees. 3

II

Plaintiffs first argue that the circuit court erred in finding that the dependency status of Eric Smith had not been previously adjudicated. They contend that the doctrine of res judicata bound the circuit court to its previous ruling that Eric was not his father's dependent. We disagree.

In the original circuit court order, the court found that the liens of the employers and the dust fund "shall apply to all damages recovered including, but not limited to the damages for loss of society and companionship recovered by decedent's adult, non-depend[e]nt children Tony Smith, Sharon Smith, the Estate of Eric Smith, Carrie Smith, Willie Mae Smith and Robin Smith Mayes." This Court in its prior decision noted that the dust fund had conceded that its liens could attach only to recoveries by parties who are eligible for worker's compensation benefits and therefore should not attach to recoveries by the decedents' nondependent adult children. Beaudrie, supra at 249-250, 520 N.W.2d 716. However, the opinion did not consider which individuals were the decedents' nondependent children. It was proper, therefore, for appellee to raise this issue in the circuit court on remand from this Court.

The dependency status of an individual for worker's compensation purposes is a question of fact governed by the circumstances on the date of the employee's injury. MCL 418.341; MSA 17.237(341). The circuit court did not hold evidentiary hearings regarding this issue before this Court's remand because the dependency status of the children was not relevant under the circuit court's original orders and only became relevant after this Court's decision. The listing that included Eric Smith with the other undisputedly nondependent adult children did not therefore constitute an adjudication of Eric's dependency status on the date of his father's injury, and the circuit court did not err in so holding.

III

Next, plaintiffs contend that the circuit court erred in holding that appellees were not liable for a proportionate share of all expenses of the third-party recovery.

On...

To continue reading

Request your trial
3 cases
  • Cacevic v. Simplimatic Engineering Co.
    • United States
    • Court of Appeal of Michigan — District of US
    • 19 September 2000
    ...an appellee is limited to the issues raised by the appellant unless the appellee files a cross appeal. Beaudrie v. Anchor Packing Co., 231 Mich.App. 242, 254, n. 6, 586 N.W.2d 96 (1998); Barnell v. Taubman Co., Inc., 203 Mich.App. 110, 123, 512 N.W.2d 13 (1993). Because defendant did not fi......
  • In re Peet Packing Co.
    • United States
    • U.S. Bankruptcy Court — Eastern District of Michigan
    • 26 March 1999
    ...portion "inoperative or superfluous, void or insignificant." 2A Sutherland Stat. Const. § 46.06; see also Beaudrie v. Anchor Packing Co., 231 Mich.App. 242, 251, 586 N.W.2d 96 (1998). Despite the cogency of the above statutory analysis, the Court's inquiry is not at an end for the Trustee q......
  • Cacevic v. SIMPLIMATIC ENGINEERING CO.
    • United States
    • Court of Appeal of Michigan — District of US
    • 1 June 2001
    ...Co., 241 Mich.App. 717, 730-731, 617 N.W.2d 386 (2000). 2. In our original opinion, we relied on Beaudrie v. Anchor Packing Co., 231 Mich.App. 242, 254, n. 6, 586 N.W.2d 96 (1998), and Barnell v. Taubman Co., Inc., 203 Mich.App. 110, 123, 512 N.W.2d 13 (1993), to hold that defendant had not......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT