Burgess v. Holloway Const. Co.

• Decision Date: 06 May 1983
• Docket Number: Docket No. 60508
• Citation: 332 N.W.2d 584,123 Mich.App. 505
• Parties: Marjory J. BURGESS, as Personal Representative of the Estate of Thomas George Burgess, Deceased, Marjory J. Burgess, Individually, and Deborah Marie Burgess, Becky Ann Burgess and Jacklyn Burgess, Individually, Plaintiffs-Appellants, v. HOLLOWAY CONSTRUCTION COMPANY, a Michigan corporation, Defendant-Appellee. 123 Mich.App. 505, 332 N.W.2d 584
• Court: Court of Appeal of Michigan — District of US

Page 584

332 N.W.2d 584

Marjory J. BURGESS, as Personal Representative of the Estate of Thomas George Burgess, Deceased, Marjory J. Burgess Individually, and Deborah Marie Burgess, Becky Ann Burgess and Jacklyn Burgess, Individually, Plaintiffs-Appellants, v. HOLLOWAY CONSTRUCTION COMPANY, a Michigan corporation Defendant-Appellee.

Docket No. 60508.

123 Mich.App. 505, 332 N.W.2d 584

Court of Appeals of Michigan.

Submitted Dec. 10, 1982.

Decided Feb. 25, 1983.

Released for Publication May 6, 1983.

[123 MICHAPP 507] Benson, Bloomquist, Wegner & Hunter by Terrence H. Bloomquist, Grayling, for plaintiffs-appellants.

Franklin, Petrulis & Lichty, P.C. by Steve J. Weiss and James T. Mellon, Troy, for defendant-appellee.

Before BRONSON, P.J., and T.M. BURNS and ALLEN, JJ.

PER CURIAM.

On October 7, 1981, the trial judge granted defendant's motion for accelerated judgment, GCR 1963, 116.1(2), and denied plaintiffs' petition for leave to file a second amended complaint. Plaintiffs appeal as of right.

Plaintiffs alleged that on June 16, 1978, Tom Burgess and Hoppy Stepp, both employed by defendant, argued about union rules and regulations. As a result, Stepp shot and killed Burgess. Plaintiffs, Burgess's wife and children, eventually sued defendant.

Plaintiffs alleged that Stepp was acting within the course of his employment when he shot Burgess. As a matter of law, plaintiffs cannot now argue that Burgess was outside the scope of employment. Before suing in circuit court, Marjory Burgess filed a worker's compensation claim with the Bureau of Workers' Disability Compensation. This claim was redeemed for $4,500. In Johnson v. [123 MICHAPP 508] Harper-Grace Hospital, 92 Mich.App. 202, 207, 284 N.W.2d 520 (1979), this Court ruled:

"We hold that plaintiff's acceptance of disability benefits by way of settlement and redemption where she claimed that her injury was employment-related bars her subsequent tort suit where she seeks to relitigate the issue of the bureau's jurisdiction by alleging that her injury was not employment-related. The redemption order serves as a final adjudication of the rights of the parties in relation to this particular injury and estops plaintiff's civil suit."

Therefore, this case's threshold question is whether or not this suit is barred by the exclusive remedy provision. M.C.L. Sec. 418.131; M.S.A. Sec. 17.237(131). In Sewell v. Bathey Mfg. Co., 103 Mich.App. 732, 736, 303 N.W.2d 876 (1981), this Court stated:

"It is beyond question that, when an injury is sustained which is compensable under the Worker's Disability Compensation Act of 1969, the exclusive-remedy provision of the act bars any common-law tort cause of action by an employee against his employer arising therefrom." (Footnote omitted.)

Plaintiffs attempt to avoid this exclusive remedy provision by claiming that the injury was outside the Worker's Disability Compensation Act. As such, they allege an intentional tort. Intentional torts are in fact outside the act. Kissinger v. Mannor, 92 Mich.App. 572, 285 N.W.2d 214 (1979); Broaddus v. Ferndale Fastener Div., Ring Screw Works, 84 Mich.App. 593, 269 N.W.2d 689 (1978), lv. den. 403 Mich. 850 (1978). However, although an intentional tort has been alleged, defendant did not do it; Stepp did it. Merely alleging an intentional tort is not necessarily in and of itself sufficient to avoid the exclusive remedy provision. In [123 MICHAPP 509] McKinley v. Holiday Inn, 115 Mich.App. 160, 320 N.W.2d 329 (1982), the plaintiff was raped by one of defendant's guests while she was working as a maid for defendant. In distinguishing Kissinger, this Court noted:

"[I]t is necessary to focus on the nature of the tort alleged by the injured employee and to determine if the Legislature intended the exclusive remedy of the act to preclude the employee's common-law recovery for injury suffered in such a tort.

* * *

"The instant plaintiff's complaint against defendant Holiday Inn is grounded solely in negligence. No intentional misconduct is alleged. There is no question that, if plaintiff's injuries have resulted in disability, as that term is understood for workers' compensation purposes, she will be eligible to receive compensation benefits." 115 Mich.App. 165-166, 320 N.W.2d 329.

Plaintiffs, consequently, allege that Stepp was defendant's alter ego. However, plaintiffs have merely pled the conclusion that Stepp acted as defendant's alter ego. They have not alleged any facts that would show that Stepp acted as defendant when he shot and killed Burgess. See generally, Chester v. World Football League, 75 Mich.App. 455, 255 N.W.2d 643 (1977).

As such, this case is controlled by Crilly v. Ballou, 353 Mich. 303, 326, 91 N.W.2d 493 (1958). There, the plaintiff was injured when he was hit by a shingle thrown by some boys working for the defendant. In ruling that that injury was compensable, under the Worker's Disability Compensation Act, the Supreme Court stated: "[I]f the injury results from the work itself, or from the stresses, the tensions, the associations, of the working environments, human as well as material, it is compensable." See also Fidelity & Casualty Co. of New [123 MICHAPP 510] York v. DeShone, 384 Mich. 686, 187 N.W.2d 215 (1971).

Plaintiffs also argue that their pleadings did not foreclose the possibility that Burgess had initiated the altercation with Stepp. However, for a claimant to be barred from compensation due to his own misconduct, the conduct must involve a high degree of "moral turpitude"; defined as "an act of baseness, vileness, or depravity". Andrews v. General Motors Corp., 98 Mich.App. 556, 561, 296 N.W.2d 309 (1980), lv. den. 412 Mich. 926, 315 N.W.2d 127 (1982). Plaintiffs have not alleged any such facts.

Plaintiffs next argue that the deceased's survivors retain an independent action against defendant for loss of society and companionship. However, because this alleged loss derives from the chief claim itself, it is also barred by the Worker's Disability Compensation Act. Moran v. Nafi Corp., 370 Mich. 536, 122 N.W.2d 800 (1963); Bourassa v. ATO Corp., 113 Mich.App. 517, 317 N.W.2d 669 (1982), lv. den. 414 Mich. 966 (1982); Cole v. Dow Chemical Co., 112 Mich.App. 198, 315 N.W.2d 565 (1982).

Plaintiffs next argue that the trial judge abused his discretion in denying their motion to file a second amended complaint. GCR 1963, 118.1. Although such motions are within the trial judge's discretion, they are to be freely granted whenever justice requires. Ben P. Fyke & Sons v....