Beaudrie v. Anchor Packing Co.

• Decision Date: 18 July 1994
• Docket Number: 152024 and 152025,Docket Nos. 152023
• Court: Court of Appeal of Michigan — District of US
• Parties: Ruth BEAUDRIE, Personal Representative of the Estate of Merel Beaudrie, Plaintiff-Appellant, v. ANCHOR PACKING COMPANY, GAF Corporation, A.P. Green Refractories, Brown Insulation, M.H. Detrick, Keene Corporation, Owens-Corning Fiberglass, Pittsburgh Corning, Standard Fuel Engineering, Babcock & Wilcox, Celotex Corporation, Defendants, and Silicosis and Dust Disease Fund, Appellee/Cross-Appellant, and Detroit Edison, Appellee. Emogene WRIGHT, Personal Representative of the Estate of Ralph Wright, Plaintiff-Appellant/Cross-Appellee, v. ANCHOR PACKING COMPANY, Blue Cross & Blue Shield, Brown Insulation Company, Celotex Corporation, Crown Cork & Seal Company, Eagle Picher Industries, Garlock Incorporation, A.P. Green Refractories, Keene Corporation, Owens-Corning Fiberglass, and Standard Fuel Engineering, Defendants, and Silicosis and Dust Disease Fund, Appellee/Cross-Appellant, and Johnson Controls, Appellee. Juanita SMITH, Personal Representative of the Estate of Willie B. Smith, Plaintiff-Appellant, v. ARMSTRONG WORLD IND., INC., Blue Cross & Blue Shield, Brown Insulation Company, Celotex Corporation, Eagle Picher Industries, A.P. Green Refractories, Keene Corporation, Owens-Corning Fiberglass, Owens-Illinois Incorporated, Pittsburgh-Corning Corporation, and H.K. Porter Company, Inc., Defendants, and Silicosis and Dust Disease Fund and Ford Motor Company, Appellees.

Page 716

520 N.W.2d 716

206 Mich.App. 245

Ruth BEAUDRIE, Personal Representative of the Estate of Merel Beaudrie, Plaintiff-Appellant, v. ANCHOR PACKING COMPANY, GAF Corporation, A.P. Green

Refractories, Brown Insulation, M.H. Detrick, Keene

Corporation, Owens-Corning Fiberglass, Pittsburgh Corning,

Standard Fuel Engineering, Babcock & Wilcox, Celotex

Corporation, Defendants,

and

Silicosis and Dust Disease Fund, Appellee/Cross-Appellant,

and

Detroit Edison, Appellee.

Emogene WRIGHT, Personal Representative of the Estate of Ralph Wright, Plaintiff-Appellant/Cross-Appellee, v. ANCHOR PACKING COMPANY, Blue Cross & Blue Shield, Brown

Insulation Company, Celotex Corporation, Crown Cork & Seal

Company, Eagle Picher Industries, Garlock Incorporation,

A.P. Green Refractories, Keene Corporation, Owens-Corning

Fiberglass, and Standard Fuel Engineering, Defendants,

and

Silicosis and Dust Disease Fund, Appellee/Cross-Appellant,

and

Johnson Controls, Appellee.

Juanita SMITH, Personal Representative of the Estate of Willie B. Smith, Plaintiff-Appellant, v. ARMSTRONG WORLD IND., INC., Blue Cross & Blue Shield, Brown

Insulation Company, Celotex Corporation, Eagle Picher

Industries, A.P. Green Refractories, Keene Corporation,

Owens-Corning Fiberglass, Owens-Illinois Incorporated,

Pittsburgh-Corning Corporation, and H.K. Porter Company,

Inc., Defendants,

and

Silicosis and Dust Disease Fund and Ford Motor Company, Appellees.

Docket Nos. 152023, 152024 and 152025 Court of Appeals of Michigan.

Submitted April 7, 1994, at Detroit.

Decided July 18, 1994, at 9:10 a.m.

Released for Publication Sept. 8, 1994.

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., for the Silicosis, Dust Disease, and Logging Industry Compensation Fund.

Before MARK J. CAVANAGH, P.J., and JANSEN and KOLENDA, ^* JJ.

PER CURIAM.

Plaintiffs in these three consolidated cases appeal as of right from the portion of the trial court's orders applying the worker's compensation lien of the Silicosis, Dust Disease, and Logging Industry Compensation Fund to all damages recovered in each case. In Docket nos. 152023 and 152024, the fund cross appeals from the allocation of the tort recovery. We affirm in part and reverse in part.

Decedents, Merel Beaudrie, Ralph Wright, and Willie Smith, died from mesothelioma resulting from exposure to asbestos. The personal representative of each estate brought wrongful death actions against a number of defendants. Pursuant to §§ 531(3) and 827 of the Worker's Disability Compensation Act, M.C.L. § 418.531(3); M.S.A. § 17.237(531)(3), and M.C.L. § 418.827; M.S.A. § 17.237(827), the fund filed a notice of lien on any settlement or judgment recovered by plaintiffs. The court granted the fund's motion to intervene to protect the lien. Each case was ultimately settled. The court incorporated each settlement in a consent judgment that indicated the settlement in that case, the manner in which the recovery was to be divided among the interested parties, and the portion of the recovery that was subject to the fund's lien. This appeal and cross appeal followed.

Plaintiffs argue on appeal that the trial court erred in subjecting to the worker's compensation lien (1) damages payable for loss of consortium or loss of society and companionship and (2) damages payable to those interested parties who were not worker's compensation beneficiaries.

Where an employee who has received worker's compensation benefits recovers in a third-party tort action, the employer or the compensation carrier that paid the benefits is entitled to reimbursement from the recovery under § 827(5), which provides:

In an action to enforce the liability of a third party, the plaintiff may recover any amount which the employee or his dependents or personal representative would be entitled to recover in an action in tort. 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 forthwith be paid to the employee or his dependents or personal representative and shall be treated as an advance payment by the employer on account of any future payments of compensation benefits.

Our Supreme Court construed this subsection in Eddington Estate v. Eppert Oil Co. 441 Mich. 200, 490 N.W.2d 872 (1992). The lead opinion, written by Justice Brickley and joined by Justices Riley and Griffin, would have held that the subsection entitled the worker's compensation carrier to seek reimbursement from the entire amount of the third-party tort recovery obtained as a result of the death of an employee, regardless of the classification of the damages (as either economic or noneconomic) and regardless of whether the recipient of the proceeds was entitled to receive compensation benefits. Id. at 204, 490 N.W.2d 872. Justice Mallett agreed that the classification of the damages was immaterial, but argued that the status of the claiming party should dictate whether the lien would attach. Id. at 218-219, 490 N.W.2d 872.

Justice Mallett agreed in part with the result of the lead opinion, but dissented from part IV(C) of that opinion, which would permit the employer to recover from loss of society and companionship damages awarded to the deceased employee's nondependent parents. Id. at 218, 490 N.W.2d 872. Because Justice Mallett expressly dissented only from part IV(C) of the lead...