Bednarski v. General Motors Corp.

• Decision Date: 06 February 1979
• Docket Number: Docket No. 31086
• Citation: 276 N.W.2d 624,88 Mich.App. 482
• Parties: Stella BEDNARSKI, Administratrix of the Estate of Boleslaw J. Bednarski, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, a Foreign Corporation, Defendant-Appellee, and John Doe, Defendant. 88 Mich.App. 482, 276 N.W.2d 624
• Court: Court of Appeal of Michigan — District of US

Page 624

276 N.W.2d 624

Stella BEDNARSKI, Administratrix of the Estate of Boleslaw J. Bednarski, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, a Foreign Corporation Defendant-Appellee and John Doe, Defendant.

Docket No. 31086.

88 Mich.App. 482, 276 N.W.2d 624

Court of Appeals of Michigan.

Feb. 6, 1979.

Released for Publication March 29, 1979.

[88 MICHAPP 483] Marston, Sachs, Nunn, Kates, Kadushin & O'Hara by David K. Barnes, Detroit, for plaintiff-appellant.

W. P. Cooney, Southfield, for defendant-appellee.

Before CAVANAGH, P. J., and BRONSON and WALSH, JJ.

PER CURIAM.

Plaintiff, the administratrix of her husband's estate, appeals from the granting of [88 MICHAPP 484] summary judgment for defendant, her late husband's employer. Plaintiff commenced suit by filing this wrongful death action in circuit court. She also petitioned for hearing before the Workmen's Compensation Bureau. Only the first action is now before the Court. Her complaint as amended, alleged that her husband died as a result of lung cancer which physicians who were the agents and employees of defendant failed to detect or reveal to the decedent during a series of physical examinations and X-ray examinations in 1972-1975. Defendant filed a motion for summary judgment ¹ for the reason that the sole and exclusive remedy available to the estate was workmen's compensation benefits.

Where an employee's injury is within the scope of the Worker's Disability Compensation Act, workmen's compensation benefits are the exclusive remedy available to the employee against the employer. M.C.L. § 418.131; M.S.A. § 17.237(131), Solakis v. Roberts, 395 Mich. 13, 20, 233 N.W.2d 1 (1975); Szydlowski v. General Motors Corp., 397 Mich. 356, 358, 245 N.W.2d 26 (1976). An action is precluded by the exclusive remedy provision of the Act if it seeks recovery for a personal injury arising out of and in the course of employment and if the suit is based upon the employer/employee relationship between the parties. M.C.L. § 418.301; M.S.A. § 17.237(301), Neal v. Roura Iron Works, Inc., 66 Mich.App. 273, 275, 238 N.W.2d 837 (1975), Lv. den. 396 Mich. 841 (1976). The Act does not bar actions against an employer by an employee if the employment[88 MICHAPP 485] relationship subsisting between them is only incidentally related to a claim resting on another basis such as vendor/vendee relationship. Panagos v. North Detroit General Hospital, 35 Mich.App. 554, 192 N.W.2d 542 (1971). Under such circumstances the courts have jurisdiction to determine the rights and liabilities of the parties. Modeen v. Consumers Power Co., 384 Mich. 354, 360-361, 184 N.W.2d 197 (1971); Bonney v. Citizens' Mutual Automobile Insurance Co., 333 Mich. 435, 440, 53 N.W.2d 321 (1952).

Plaintiff's original complaint and first amended complaint assumed the form of a wrongful death action based on medical malpractice; the fact that the decedent had been defendant's employee was mentioned, but there was no statement that decedent's injury arose out of or in the course of employment or that the action was based on the employment relationship. If such was nonetheless the situation, plaintiff's exclusive remedy is furnished by the Worker's Disability Compensation Act. Szydlowski v. General Motors Corp., supra. The pleadings appear to have been framed to avoid the Szydlowski holding. The mere omission of assertions from the pleadings which would reveal the applicability of the exclusive remedy provision cannot confer jurisdiction on the courts. St. Paul Fire & Marine Insurance Co. v. Littky, 60 Mich.App. 375, 378, 230 N.W.2d 440 (1975). We are currently not in a position to say whether Szydlowski is distinguishable from the instant case on the basis of the actual underlying facts.

We note that plaintiff has filed a workmen's compensation claim based on the same facts as the instant case. As acknowledged in plaintiff's appellate brief, the Workmen's Compensation Disability Bureau is the appropriate forum to consider this claim. M.C.L. § [88 MICHAPP 486] 418.841; M.S.A. § 17.237(841), Herman v. Theis, 10 Mich.App. 684, 688-689, 160 N.W.2d 365 (1968), Lv. den. 381 Mich. 772 (1968); St. Paul Fire & Marine Insurance Co. v. Littky, supra, 60 Mich.App. at 378, 230 N.W.2d 440; Szydlowski v. General Motors Corp., supra, 397 Mich. at 358-359, 245 N.W.2d 26. Defendant also has asserted by way of affidavit in the trial court that decedent was defendant's employee when he received medical services from it and that his exclusive remedy was under the Worker's Disability Compensation Act and that "the medical services rendered (decedent) were rendered at his place of employment" and that "all services rendered were in the course of decedent's employment * * *."

If decedent's injury arose from his working conditions, then we would agree that plaintiff's exclusive remedy is workman's compensation benefits, and t...