Bialochowski v. Cross Concrete Pumping Co.
| Decision Date | 01 June 1987 |
| Docket Number | Docket No. 76180 |
| Citation | 407 N.W.2d 355,428 Mich. 219 |
| Parties | John A. BIALOCHOWSKI, Plaintiff-Appellee, v. CROSS CONCRETE PUMPING COMPANY, a Michigan corporation, Defendant, and Reliance Insurance Company, a foreign corporation, Defendant-Appellant. 428 Mich. 219, 407 N.W.2d 355 |
| Court | Michigan Supreme Court |
Law Offices of Samuel I. Bernstein by Samuel I. Bernstein, Southfield, for plaintiff-appellee John A. Bialochowski.
Kohl, Secrest, Wardle, Lynch, Clark and Hampton, by Michael L. Updike, Farmington Hills, for defendant-appellant Reliance Ins.
The primary issue presented by this case is whether Reliance Insurance Company is entitled to reimbursement from plaintiff's third-party tort recovery for workers' compensation disability benefits paid to plaintiff. The resolution of this issue depends upon whether Reliance's payment of workers' disability benefits substituted for the payment of no-fault benefits. If Reliance's payment of workers' disability benefits substituted for no-fault benefits, then, pursuant to this Court's decision in Great American Ins. Co. v. Queen, 410 Mich. 73, 300 N.W.2d 895 (1980), Reliance is not entitled to reimbursement under the Workers' Disability Compensation Act 1 from plaintiff's tort recovery from the third-party tortfeasor, defendant Cross Concrete Pumping Company. We hold that Reliance's payment of workers' disability benefits substituted for no-fault benefits that were otherwise payable, and, therefore, Reliance's reimbursement is limited to the reimbursement that a no-fault carrier is entitled to under the no-fault act. M.C.L. Sec. 500.3116; M.S.A. Sec. 24.13116.
John Bialochowski was rendered a paraplegic as a result of a June 13, 1980 accident that occurred on a construction site at a General Motors Assembly Division facility. Plaintiff's employer, the Emanuel Company, was hired by General Motors for the construction project. Construction of the facility involved the pouring of cement at elevated levels. Emanuel contracted the services of Cross Concrete Pumping Company for the pouring of the cement. Cross Concrete brought onto the job site a motorized, four-wheel, cement truck. Permanently attached to this truck was a concrete pump and a thirty- to thirty-five-foot boom, which was used to pump concrete up to the elevated levels. Plaintiff was injured in the course of his employment when the concrete pump exploded, causing the boom to collapse upon plaintiff, crushing him. At the time of the accident, the truck was parked and stabilized.
Reliance, Emanuel Company's workers' compensation carrier, paid $150,562.42 in workers' disability benefits to plaintiff. Subsequently, plaintiff brought a tort action against Cross Concrete, which was settled for $750,000. Upon learning of plaintiff's third-party tort recovery, Reliance requested reimbursement for its medical and wage loss workers' disability payments pursuant to its statutory right of reimbursement under the WDCA. M.C.L. Sec. 418.827(5); M.S.A. Sec. 17.237(827)(5).
Plaintiff then filed this action, seeking a declaration that Reliance was not entitled to any portion of the settlement proceeds. Plaintiff moved for summary judgment, claiming that the settlement did not include recovery for damages paid by Reliance. Relying on this Court's decision in Queen, supra, the trial court granted summary judgment for the plaintiff. Reliance appealed in the Court of Appeals, claiming that Queen was inapplicable because the accident in which plaintiff was injured did not involve a motor vehicle and did not require payment of no-fault benefits. The Court of Appeals disagreed and affirmed the trial court's grant of summary judgment. The Court of Appeals also held that Reliance was entitled to a lien as to benefits paid which exceeded no-fault benefits in duration or amount. 141 Mich.App. 315, 321, 367 N.W.2d 381 (1985).
In Queen, Justice Levin, writing for a majority of this Court, succinctly set forth an employee's entitlement to compensation for injuries when an employee is injured in the course of his employment in an accident involving a motor vehicle:
2
In Queen, supra, Queen was injured in a motor vehicle accident during the course of his employment. He received workers' disability benefits and claimed benefits from his employer's no-fault insurer (the employer furnished the motor vehicle involved in the accident). The no-fault insurer subtracted the amount paid by the workers' compensation carrier from the benefits it otherwise owed under the no-fault act. Queen then brought suit, pursuant to Sec. 3135 of the no-fault act, M.C.L. Sec. 500.3135; M.S.A. Sec. 24.13135, against a third-party tortfeasor, alleging that the third party's negligence caused the motor vehicle accident.
After Queen's claim against the third-party tortfeasor was settled, the workers' compensation carrier brought suit against Queen and the third-party tortfeasor, claiming a lien on the settlement for reimbursement of workers' disability benefits paid pursuant to Sec. 827 of the Workers' Disability Compensation Act. The trial court granted summary judgment to Queen, and the Court of Appeals affirmed.
We held that when a workers' compensation carrier's payment of benefits substituted for no-fault benefits otherwise payable, 3 the workers' compensation carrier is not entitled to reimbursement under the WDCA, but, rather, is limited to the reimbursement permitted a no-fault insurer under the no-fault act. 4 We so held because of our determination that the Legislature intended that employees injured in motor vehicle accidents are entitled to the same compensation and have the same limited right to tort recovery as other motor vehicle accident victims. 5 Since the Legislature, in the no-fault act, has expressed their judgment that tort recovery under Sec. 3135 for noneconomic loss and excess economic loss shall not be reduced by personal injury protection benefits paid, a workers' compensation carrier's payment of workers' disability benefits which substitute for no-fault benefits should not reduce the third-party tort recovery of an injured employee. 6
Reliance's payment of workers' disability benefits will have substituted for no-fault benefits if plaintiff is entitled to personal injury protection benefits under the no-fault act.
The first question is whether the truck which caused plaintiff's injuries was a motor vehicle under the no-fault act. The act defines a motor vehicle as "a vehicle, including a trailer, operated or designed for operation upon a public highway by power other than muscular power which has more than 2 wheels." M.C.L. Sec. 500.3101(2)(c); M.S.A. Sec. 24.13101(2)(c). There is no question that the equipment truck here involved meets this definition as it is designed for operation upon a public highway by power other than muscular power and has four wheels.
The more important issue is whether the no-fault carrier for the truck would be liable for personal injury protection benefits. Section 3105 of the no-fault act provides that a no-fault insurer "is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle...." M.C.L. Sec. 500.3105(1); M.S.A. Sec. 24.13105(1). Reliance, citing Johnston v. Hartford Ins. Co., 131 Mich.App. 349, 346 N.W.2d 549 (1984), argues that the equipment truck was not being used as a motor vehicle, but rather, was being used as a piece of construction machinery, a cement pump which poured concrete at elevated levels.
In Johnston, a crane operator was injured when he slipped after getting out of the cab of the crane that contained the controls used to operate the lifting mechanism of the crane, and while entering the cab that contained the controls for driving the crane. The crane was immobilized by outriggers, retraction of its wheels, and the placement of fifty-four tons of counterweights. It took three days to rig the crane, which then could not be driven. The crane was used to lift structural steel and other objects to the upper levels of the construction project. 7
The crane operator in Johnston brought suit against his personal no-fault insurer under Secs. 3105 and 3106 of the no-fault act. 8 The Court of Appeals held that plaintiff was not entitled to no-fault benefits because the crane was a dual-purpose vehicle which was not being used as a motor vehicle at the time of the accident. 9 In so holding, the Court of Appeals stated:
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