Dixon v. Sype

• Decision Date: 21 August 1979
• Docket Number: Docket No. 78-2746
• Citation: 92 Mich.App. 144,284 N.W.2d 514
• Parties: Nora DIXON, Plaintiff-Appellant, v. Lela Lucille SYPE, Defendant-Appellee. 92 Mich.App. 144, 284 N.W.2d 514
• Court: Court of Appeal of Michigan — District of US

Page 514

284 N.W.2d 514

Nora DIXON, Plaintiff-Appellant, v. Lela Lucille SYPE, Defendant-Appellee.

Docket No. 78-2746.

92 Mich.App. 144, 284 N.W.2d 514

Court of Appeals of Michigan.

Aug. 21, 1979.

Released for Publication Nov. 9, 1979.

[92 MICHAPP 145] Robert T. Benefiel, Flat Rock, for plaintiff-appellant.

Edward F. Mattingly, Detroit, for defendant-appellee.

Before MAHER, P. J., and BRONSON and MOORE, ^* JJ.

PER CURIAM.

Plaintiff, Nora Dixon, appeals as of right from the order of the Wayne County Circuit Court granting defendant's motion for accelerated judgment on grounds that the court lacked jurisdiction to decide a key issue in the case: whether the injury to plaintiff was suffered in the course of her employment at the hands of a coemployee acting in the course of employment.

Plaintiff was injured on March 3, 1975, when a school bus in which she was riding collided with an automobile, throwing plaintiff to the floor of the bus. The bus was owned by the Gibraltar School District and was driven by defendant, Lela Sype, an employee of the school district. Plaintiff was also employed by the school district as a bus attendant, assigned to ride the bus with defendant and assist in loading and unloading handicapped children. At the time of the accident, plaintiff and defendant had finished transporting children to [92 MICHAPP 146] school and were on their way to the bus yard to drop off the bus and to get their personal automobiles.

Plaintiff brought this action in Wayne County Circuit Court, alleging that she was injured as a result of defendant's negligence and seeking money damages as compensation for her injuries. ¹ Defendant answered, denying negligence and asserting as affirmative defenses, Inter alia, that the action was barred by the provisions of the Worker's Disability Compensation Act, M.C.L. § 418.101 Et seq.; M.S.A. § 17.237(101) Et seq.; and by the no-fault automobile insurance act, M.C.L. § 500.3101 Et seq.; M.S.A. § 24.13101 Et seq. Thereafter, defendant filed a motion for accelerated judgment on grounds that plaintiff's exclusive remedy was under the Worker's Disability Compensation Act and that the circuit court lacked jurisdiction to hear the matter. The court in granting defendant's motion noted that trial of the case would entail the determination of whether plaintiff's injury occurred in the course of her employment, a question which, the court concluded, lies within the exclusive jurisdiction of the Workmen's Compensation Bureau.

Section 131 of the Worker's Disability Compensation Act, M.C.L. § 418.131; M.S.A. § 17.237(131), provides that "benefits as provided in this act shall be the employee's exclusive remedy against the employer". Section 827 of the Act preserves the employee's right of action against a tortfeasor "other than a natural person in the same employ or the employer", M.C.L. § 418.827; M.S.A. § 17.237(827). These sections of the statute have been interpreted to bar an action by the injured employee against a fellow employee whose negligence caused the injury,[92 MICHAPP 147] where both were acting in the course of their employment at the time the injury occurred. See Herndon v. UAW Local No. 3, 56 Mich.App. 435, 224 N.W.2d 334 (1974), Wilson v. Al-Huribi, 55 Mich.App. 95, 222 N.W.2d 49 (1974). Where either party was not acting in the course of employment, however, the statutory bar does not apply, see Herndon, supra, and Wilson, supra.

Section 841 of the Act provides:

"Any controversy concerning compensation shall be submitted to the bureau and All questions arising under this act shall be determined by the bureau." (Emphasis added.) M.C.L. § 418.841; M.S.A. § 17.237(841).

Interpreting the predecessor of the above-quoted section, this Court said in Herman v. Theis, 10 Mich.App. 684, 689, 160 N.W.2d 365 (1968):

"Issues concerning injuries and whether they grew 'out of and in the course of the employment relationship' are to be exclusively within the purview of the Workmen's Compensation Department, and the merits of such a claim are to be first evaluated by the department."

The principle that jurisdiction over questions of the applicability of the 1969 act and exclusiveness of its remedy is vested in the Workmen's Compensation Bureau has been clearly established in cases arising under the new act, Szydlowski v. General Motors Corp., 397 Mich. 356, 245 N.W.2d 26 (1976). Jurisdiction is not limited to claims for compensation or to controversies between employee and employer. See St. Paul Fire & Marine Ins. Co. v. Littky, 60 Mich.App. 375, 230 N.W.2d 440 (1975), holding that the question whether an insurance policy issued by plaintiff covered an injury to defendant's employee was for the bureau and not [92 MICHAPP 148] for circuit court to decide. See also Maglaughlin v. Liberty Mutual Ins. Co., 82 Mich.App. 708, 267 N.W.2d 160 (1978).

Plaintiff seeks to distinguish Herman v. Theis, supra, on grounds that her action is not against her employer and that she did not allege an employer-employee relationship in her pleading. We note, however, that the exclusive remedies provision applies to actions against coemployees as well as employers, see Herndon v. UAW Local No. 3, supra, and Wilson v. Al-Huribi,supra. As to the omission from the pleadings of the fact that plaintiff and defendant were fellow employees, we note that "(t)he 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)." Bednarski v. General Motors Corp., 88 Mich.App. 482, 485, 276 N.W.2d 624 (1979).

Plaintiff cites several cases for the proposition that the employment status of an employee is a jury question. Only one of the cited cases, however presents the issue now before us. In Bugg v. Fairview Farms, Inc., 385 Mich. 338, 189 N.W.2d 291 (1971), plaintiff's decedent was killed in an automobile accident. Plaintiff filed both a workmen's compensation claim and a wrongful death action against decedent's employer and fellow employee. The workmen's compensation claim was redeemed, the parties expressly reserving the question whether the death occurred in the course of employment for litigation in the wrongful death action. The Supreme Court reversed the trial court's dismissal of the wrongful death action on the grounds that it was barred by the exclusive remedy[92 MICHAPP 149] provision, holding that defendants were estopped to raise the statutory bar by reason of their agreement to reserve the question whether the injuries occurred in the course of employment for litigation in the wrongful death action. We do not read this case as establishing that the issue stated may be presented to a jury as an alternative to a determination by the Workmen's Compensation Bureau. To the extent that the Bugg case does so hold, we are of the opinion that its validity is questionable in light of the Supreme Court's decision in Szydlowski v. General Motors...