Briggs v. Campbell, Wyant & Cannon Foundry Co., Division Textron Am. Inc.

• Decision Date: 25 January 1966
• Docket Number: No. 3,Nos. C,s. C,3
• Citation: 2 Mich.App. 204,139 N.W.2d 336
• Parties: Buffen BRIGGS, Charles Habetler, Albert Harris and Melvin Wright, Plaintiffs-Appellees, v. CAMPBELL, WYANT & CANNON FOUNDRY COMPANY, DIVISION TEXTRON AMERICAN INC., and Liberty Mutual Insurance Co., Defendants-Appellants, Campbell, Wyant & Cannon Foundry Company, and Michigan Mutual Liability Company, Defendants-Appellees. Robert W. HARRINGTON, Plaintiff-Appellee, v. GALE MANUFACTURING COMPANY, Corporate Service, Defendant-Appellant, Albion Malleable Iron Company, Brooks Foundry Company and Michigan State Accident Fund, Defendants-Appellees. al. 90, Cal. 91, Cal. 92, Cal. 93, 563
• Court: Court of Appeal of Michigan — District of US

Page 336

139 N.W.2d 336

2 Mich.App. 204

Buffen BRIGGS, Charles Habetler, Albert Harris and Melvin

Wright, Plaintiffs-Appellees, v. CAMPBELL, WYANT & CANNON FOUNDRY COMPANY, DIVISION TEXTRON

AMERICAN INC., and Liberty Mutual Insurance Co.,

Defendants-Appellants,

Campbell, Wyant & Cannon Foundry Company, and Michigan

Mutual Liability Company, Defendants-Appellees.

Robert W. HARRINGTON, Plaintiff-Appellee, v. GALE MANUFACTURING COMPANY, Corporate Service, Defendant-Appellant,

Albion Malleable Iron Company, Brooks Foundry Company and

Michigan State Accident Fund, Defendants-Appellees.

Nos. Cal. 90, Cal. 91, Cal. 92, Cal. 93, 563.

Court of Appeals of Michigan, Division No. 3.

Jan. 25, 1966.

Edward D. Wells, Cholette, Perkins & Buchanan, Grand Rapids, for Campbell, Wyant & Cannon Foundry Co. and Liberty Mut. Ins. Co.

Charles H. King, Detroit, Richard J. Craig, Francis X. Fallon, Amberg, Law & Fallon, Thomas A. Ryan, Rhoades, Garlington & Ryan, Grand Rapids, for Campbell, Wyant & Cannon Foundry Co. and Mich. Mut. Liability Co.

Marcus, McCroskey, Libner, Reamon, Williams & Dilley, Muskegon, for Buffen Briggs.

F. L. Sylvester, Lacey & Jones, Detroit, for Gale Mfg. Co. and Corporate Service.

Edward J. Ryan, Kalamazoo, for Robert W. Harrington.

Herbert H. Sulzbach, Detroit, for Albion Malleable Iron Co. Stanley Dodge, Lansing, for Brooks Foundry Co. and Mich. State accident fund.

Before BURNS, P. J., and HOLBROOK and T. G. KAVANAGH, JJ.

HOLBROOK, Judge.

These cases are appeals from the workmen's compensation appeal board and involved the construction of C.L.1948, § 417.9 as amended by P.A.1962, No. 189 (Stat.Ann.1963 Cum.Supp. § 17.228), providing in part of apportionment of liability between employers in occupational disease disability awards. The first 4 cases were consolidated by order of the Supreme Court in granting leave to appeal, and subsequently on October 14, 1964, assigned to this Court: the fifth case, leave to appeal was granted in an order of February 17, 1965, solely on the right, if any, of appellant, Gale Manufacturing Company, to apportion its liability, and to be presented to the Court of Appeals for consideration with Wright v. campbell, Wyant & Cannon Foundry Company.

These appeals all come from the workmen's compensation appeal board's rulings dated April 23, 1964, as to the first four cases, and May 22, 1964, as to the last case.

All five plaintiffs in these cases were found by the hearing referee to have suffered an occupational injury, that of silicosis or related diseases on different dates. Robert W. Harrington, March 2, 1960: Melvin Wright, February 17, 1961; Buffen Briggs, April 5, 1961; Albert Harris, December 19, 1961; and, Charles Habetler, February 28, 1962. All of the hearings were held before the hearing referee on or before February 19, 1963, and awards granted by the hearing referee were all completed before March 28, 1963, excepting as to Albert Harris, which was made April 24, 1963. In the cases, of Buffen Briggs and Melvin Wright, petitions to add prior employers were made before the workmen's compensation appeal board; Buffen Briggs, February 8, 1963; and, Melvin Wright, February 18, 1963. In both cases, the workmen's compensation appeal board granted the motions. In the case of Robert W. Harrington, the prior employer Brooks Foundry Company was made a party-defendant in an amended application for hearing of claim filed June 7, 1961. The hearing referees in the Habetler, Harris, and Harrington cases made orders for proportionate payment by prior employers.

As to the first 4 cases, the facts are that plaintiffs were employees of Campbell, Wyant & Cannon Foundry Company, hereinafter referred to as CWC, for a number of years prior to April 20, 1956, and worked in conditions conducive to silicosis. CWC's insurer, under the workmen's compensation act, was the Michigan Mutual Liability Company, hereinafter referred to as Michigan Mutual. In April, 1956, Textron, Inc, a Rhode Island corporation, purchasd CWC from its owners and continued the businessd under the name of CWC, Division of Textron American. Michigan Mutual continued to insure the liability of Textron American until January 1, 1961, at which time Liberty Mutual Insurance Company became the insurer for Textron. The four plaintiffs were found to be eligible for workmen's compensation under the occupational disease section, subsequent to January 1, 1961, thereby making Liberty Mutual Insurance Company liable as insurer of Textron, 'the employer who last employed the employee in the employment, to the nature of which the disease was due and in which it was contracted.'

In the Harrington Case, Gale Manufacturing Company, Corporate Service, was found to be the last employer March 2, 1960, and therefore, liable for the compensation by reason of its being self-insured. The hearing referee found Brooks Foundry Company employed the plaintiff for 24 out the 170 months of exposure, and apportioned 14% of the payments to be recovered by Gale Manufacturing Company from Brooks Foundry Company, and State Accident Fund, its insurer.

The workmen's compensation act was amended by P.A.1937, No. 61, effective October 29, and amended by P.A.1937, No. 3, (ex. sees) effective November 10, 1937, providing for apportionment of compensation liability, which was applied in the cases before the workmen's Compensation department until December of 1961, when the Supreme Court in Trellsite Foundry & Stamping Company v. Enterprise Foundry, 365 Mich. 209, 112 N.W.2d 476, declared the apportionment provision of the occupational disease statute (C.L.1948, § 417.9 [Stat.Ann.1960 Rev. § 17.228]), unconstitutional. The provision had allowed the last employer who was liable for the entire compensation to the employee to seek apportionment or contributions from prior employees who had contributed to the development of the disease. This provision did not require notice to the prior employers of the original hearing on liability nor the right to contest the original award in favor of the employee and against the last employer, and for that reason was declared unconstitutional.

The legislature in 1962 amended C.L.1948, § 417.9, by P.A.1962, No. 189, effective March 28, 1963, to read as follows:

'The total compensation due shall be recoverable from the employer who last employed the employee in the employment to the nature of which the disease was due and in which it was contracted. If any dispute or controversy arises as to the payment of compensation or as to liability therefor, the employee shall give notice to and make claim upon the last employer only and apply for a hearing against the last employer only. If the employee was employed by prior employers in an employment to the nature of which the disease was due and in which it was contracted, then the workmem's compensation department on motion made in writing by the last employer shall join any or all prior employers, mentioned in said motion, as parties-defendant. Any prior employer so joined as a party-defendant may move, in writing, to join other employers as parties-defendant, and the department shall join said employers as parties-defendant. The workmen's compensation department, within 5 days of the entry of its order joining any prior employer as a party-defendant, shall give such party written notice thereof by first-class mail, which notice shall in no case be mailed less than 30 days before the date of hearing, and shall include the name of the employee, the name of the last employer, the name of the moving party, and the names of all other employers joined as parties-defendant. The workmen's compensation department shall give not less than 30 days' notice in writing by first class mail to all parties of the time and place of the hearing between the employee and the last employer at which liability shall be determined. Any prior employer named as a defendant by the department pursuant to motion shall have 10 days from the date of the mailing of notice of joinder to file objections to his being named as a party-defendant. On the day of the hearing at which the liability of the parties shall be determined, the hearing referee shall first hear arguments and take evidence concerning the joinder, as parties-defendant, of employers who have filed timely objections, and if the arguments and evidence warrant, the hearing referee shall grant a motion to dismiss any prior employer as a party-defendant. At the said hearing all employers named as defendants may appear, cross-examine witnesses, give evidence and defend the both on the issue of the liability of the last employer to the employee and on the issue of their liability to the last employer. The workmen's compensation department shall enter an order determining liability for compensation as between the employee and the last employer. The department shall apportion liability for compensation among the several employers in proportion to the time that the employee was employed in the service of each employer in the employment to the nature of which the disease was due and in which it was contracted and shall enter a separate order in favor of the last employer and against prior employers for their proportionate share of liability, which order may be enforced in the same manner as an award for compensation. Any order so entered may be appealed by any party to the proceeding before the department and shall be reviewed in accordance with the procedure provided in part 3 of this act.' (Emphasis supplied.)

Under this amended act, prior employers of an employee sought to be charged with a portion of the compensation award made under the occupational disease section, ¹ were granted the procedural right to have notice of the original proceedings before the workmem's compensation department, and the substantive right to defend against the claim of the plaintiff in the first instance as well as to be heard on the apportionment issue.

...