Berger v. Mead

• Citation: 127 Mich.App. 209,338 N.W.2d 919
• Decision Date: 15 September 1983
• Docket Number: Docket No. 63903
• Parties: Ford Douglas BERGER and Peggy Berger, Plaintiffs-Appellants, v. Daniel MEAD, Richard Howell, David Danaher, Frederick Kellogg, James Gudenburr, Larry Brown and Raymond Marchewitz, Jointly and Severally, Defendants-Appellees.
• Court: Court of Appeal of Michigan (US)

Page 919

338 N.W.2d 919

127 Mich.App. 209

Ford Douglas BERGER and Peggy Berger, Plaintiffs-Appellants, v. Daniel MEAD, Richard Howell, David Danaher, Frederick Kellogg, James Gudenburr, Larry Brown and Raymond Marchewitz, Jointly and Severally Defendants-Appellees.

Docket No. 63903.

Court of Appeals of Michigan.

Submitted Jan. 21, 1983.

Decided July 11, 1983.

Released for Publication Sept. 15, 1983.

Lacey & Jones by Stephen Jay Schwartz, Detroit, for plaintiffs-appellants.

Vandeveer, Garzia, Tonkin, Kerr & Heaphy, P.C. by Thomas M. Peters, Detroit, for defendants-appellees Daniel Mead and James Gudenburr.

Tyler & Canham, P.C. by David M. Tyler and Michael J. Walter, Detroit, for defendant-appellee Richard Howell.

Harvey, Kruse, Westen & Milan, P.C. by Michael F. Schmidt, Detroit, for defendant-appellee David Danaher.

Stewart, O'Reilly, Cornell, Lascoe & Rancilio, P.C. by Ronald L. Cornell, Sterling Heights, for defendant-appellee Frederick Kellogg.

Thomas J. Ryan, Pontiac, for defendant-appellee Larry Brown.

Wilson, Portnoy & Leader, P.C. by Robert P. Roth, Bloomfield Hills, for defendant-appellee Raymond Marchewitz.

Before T.M. BURNS, P.J., and MAHER and HOOD, JJ.

PER CURIAM.

Occasionally, we on this Court find some opinions difficult to write. A party's injury can so strongly call for compensation that we feel strongly inclined to at least allow the case to go before a jury. Unfortunately, as in this case, the law is too clear on the subject. The Legislature has clearly preempted this area thus giving us very little leeway.

This is the second time this case is before this Court. The first time, the trial judge had dismissed the complaint against all defendants based on the Worker's Disability Compensation Act's exclusive remedy provision and on governmental immunity. In a split opinion, this Court held that some of the non-defaulting defendants were in fact entitled to governmental immunity. However, the judgment entered against the defendants in the present suit based on the Worker's Disability Compensation Act was reversed and the case remanded. Berger v. City of Berkley, 87 Mich.App. 361, 275 N.W.2d 2 (1978). The Supreme Court denied leave. 406 Mich. 969 (1979). ¹

On remand, after discovery was concluded, the trial court once again entered summary judgment for the remaining seven nondefaulting defendants based on the Worker's Disability Compensation Act. M.C.L. Sec. 418.131; M.S.A. Sec. 17.237(131). Plaintiffs again appeal as of right.

Plaintiffs first argue that this Court's first opinion precluded the trial court from entering summary judgment on this issue in this case. See CAF Investment Co. v. Saginaw Twp., 410 Mich. 428, 454-455, 302 N.W.2d 164 (1981). Although three opinions were filed, all three judges agreed on the workers' compensation issue. Judge ALLEN's opinion stated:

"This author and Judge BRONSON, who writes separately, concur in the opinion of Judge T.M. BURNS except [the part dealing with governmental immunity]. * * * In all other respects we agree with Judge BURNS's opinion. ¹

Compatible with Judge BURNS's opinion we would: (as to Issue I)--reverse the judgments entered against those defendants who were defaulted, and remand to allow plaintiffs to move for entry of a default judgment or other appropriate relief; (as to Issue II)--remand to the trial court for determination by the trier of fact whether plaintiff was an employee of defendant; (as to Issue III)--reverse judgment in favor of the individual defendant and allow discovery and consideration of individual motions for summary judgment." 87 Mich.App. 367.

In remanding on the worker's compensation issue, Judge T.M. BURNS wrote:

"The appropriate question is who was plaintiff's employer? The answer to the question is determined by applying the 'economic reality' test. Smith v. Martindale, 81 Mich.App. 682, 266 N.W.2d 49 (1978) [lv. den. 406 Mich. 927 (1979) ], and cases cited therein. It is only where it can be determined under this test that the defendants were plaintiff's employers or coemployees that the exclusive remedy provision would bar this suit.

"This present record is insufficient to make that determination. Certainly, referring only to the agreement between the municipalities, while important, will not completely answer the question. In a tort suit, as opposed to a worker's compensation hearing, the issue of whether plaintiff was an employee of the defendants should be submitted to the jury under proper instructions, for determination based on all the evidence. ⁵

This issue would be for the Court only if there are no disputed facts." 87 Mich.App. 379, 275 N.W.2d 2.

We cannot agree with plaintiffs. This Court remanded this case because the record was then insufficient to support the judgment that had been entered. Nothing in the opinion mandated that even if no factual dispute remained, this case necessarily must go before a jury. This conclusion is buttressed by Judge ALLEN's opinion:

"In summary, the grant of accelerated judgment in favor of the individual defendants is therefore reversed. The issue of individual negligence is remanded for trial. Before reaching this issue, however, the trial court will first have to determine whether the South Oakland Tactical Support Unit was a joint venture and whether plaintiffs are therefore barred from proceeding against the individual defendants by the exclusive remedy provision of the worker's compensation act. MCL 418.131; MSA 17.237(131)." 87 Mich.App. 371, 275 N.W.2d 2.

Plaintiffs also argue that the trial court improperly granted summary judgment claiming that certain disputed questions of fact still existed. The trial court had determined that plaintiff ² and defendants were all members of a joint venture. Therefore, because they were coemployees, defendants were covered by the Worker's Disability Compensation Act's exclusive remedy provision, M.C.L. Sec. 418.131; M.S.A. Sec. 17.237(131). Holody v. Detroit, 117 Mich.App. 76, 323 N.W.2d 599 (1982); Dixon v. Sype, 92 Mich.App. 144, 284 N.W.2d 514 (1979).

Plaintiff was clearly injured during the scope of his employment. He was a police officer shot during a training exercise. Accordingly, as he points out, the crucial question is whether or not these defendants were his coemployees. At that time, plaintiff worked for the Royal Oak City Police Department. These defendants worked for other police departments in the area. ³

Defendants claim that the South Oakland Tactical Support Unit is a joint venture and that, therefore, as coemployees in this joint venture, they are protected by the exclusive remedy provision. Basically, a joint venture is an association to carry out a single business enterprise for a profit. Gleichman v. Famous Players-Lasky Corp., 241 Mich. 266, 217 N.W. 43 (1928); Georges v. Ballard, 20 Mich.App. 554, 174 N.W.2d 311 (1969). Whether or not a joint venture exists is a legal question for the trial court to decide. Keiswetter v. Rubenstein, 235 Mich. 36, 209 N.W. 154, 48 A.L.R. 1049 (1926); Birou v. Thompson-Brown Co., 67 Mich.App. 502, 241 N.W.2d 265 (1976), lv. den. 397 Mich. 808 (1976). A joint venture has six elements:

"(a) an agreement indicating an intention to undertake a joint venture;

"(b) a joint undertaking of;

"(c) a single project for profit;

"(d) a sharing of profits as well as losses;

"(e) contribution of skills or property by the parties;

"(f) community interest and control over the subject matter of the enterprise." Meyers v. Robb, 82 Mich.App. 549, 557, 267 N.W.2d 450 (1978), lv. den. 403 Mich. 812 (1978).

The key consideration is that the parties intended a joint venture. Goodwin v. S.A. Healy Co., 383 Mich. 300, 174 N.W.2d 755 (1970); Hathaway v. Porter Royalty Pool, Inc., 296 Mich. 90, 295 N.W. 571; 138 A.L.R. 955 (1941).

Although the first two and the last two elements are easily met, the middle two are not. Some cases have said that the profit motive is necessary for a joint venture. Smith v. Grenadier, 203 Va. 740, 127 S.E.2d 107 (1962); George D. Horning, Inc. v. McAleenan, 149 F.2d 561 (CA 4, 1945). See also Reed & Noyce, Inc. v. Municipal Contractors, Inc., 106 Mich.App. 113, 308 N.W.2d 445 (1981), lv. den. 413 Mich. 880 (1982). ⁴

However, a number of jurisdictions have labelled noncommercial joint ventures as joint enterprises. E.g., Delgado v. Lohmar, 289 N.W.2d 479 (Minn.1979); Clawson v. General Ins. Co. of America, 90 Idaho 424, 412 P.2d 597 (1966); Bradbury v. Nagelhus, 132 Mont. 417, 319 P.2d 503 (1957). Actually, these two terms are often used interchangeably. L.M. White Contracting Co. v. Tucson Rock & Sand Co., 11 Ariz.App. 540, 466 P.2d 413 (1970); Connor v. Great Western Savings & Loan Ass'n., 69 Cal.2d 850, 863 fn. 6, 73 Cal.Rptr. 369, 447 P.2d 609, 39 A.L.R.2d 224, 232, fn 6 (1968). Looking at the Michigan cases shows that this statement is true. E.g., Laughlin v. Michigan Motor Freight Lines, 276 Mich. 545, 268 N.W. 887 (1936); Flager v. Associated Truck Lines, Inc., 52 Mich.App. 280, 216 N.W.2d 922 (1974), lv. den. 392 Mich. 810 (1974). In Boyd v. McKeever, 384 Mich. 501, 508-509, 185 N.W.2d 344 (1971), our Supreme Court defined joint enterprise (in a somewhat different context):

"To constitute a joint enterprise between a passenger and the driver of an automobile within the meaning of the law of negligence, there must be a community of interest in the use of the vehicle; there must be a finding of common responsibility for its negligent operation; and it must be found that the driver is acting as the agent of the other members of the enterprise." ⁵

Each case depends on its own facts. 46 Am.Jur.2d, Joint Ventures, Sec. 1, p. 22. Looking at the facts in this case, we can only conclude that the South Oakland Tactical Support Unit is a joint enterprise. The community of interest among the different municipalities in the area is obvious. Pursuant to the South Oakland County Reciprocal Police Aid Agreement, each city or...