Eversman v. Concrete Cutting & Breaking

• Decision Date: 27 July 2000
• Docket Number: Docket No. 109977, Calendar No. 3.
• Citation: 463 Mich. 86,614 N.W.2d 862
• Parties: Harry EVERSMAN, Plaintiff-Appellee, and Auto-Owners Insurance Company, Intervening Plaintiff-Appellee, v. CONCRETE CUTTING & BREAKING and Transamerica Insurance Group, Defendants-Appellants.
• Court: Michigan Supreme Court

614 N.W.2d 862

463 Mich. 86

Harry EVERSMAN, Plaintiff-Appellee, and Auto-Owners Insurance Company, Intervening Plaintiff-Appellee, v. CONCRETE CUTTING & BREAKING and Transamerica Insurance Group, Defendants-Appellants.

Docket No. 109977, Calendar No. 3.

Supreme Court of Michigan.

Argued March 7, 2000.

Decided July 27, 2000.

Wheeler Upham, P.C. (by Gary A. Maximiuk and Jack L. Hoffman), Grand Rapids, for intervening plaintiff-appellee Auto-Owners Insurance Company.

Lacey & Jones (by Gerald M. Marcinkoski), Birmingham, for defendants-appellants.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Mitchell J. Wood and Ray W. Cardew, Jr., Assistant Attorneys General, Lansing, for Second Injury Fund.

Martin L. Critchell, Detroit, for Michigan Manufacturers Association and Michigan Self-Insurers Association.

Opinion

WEAVER, C.J.

The question presented in this worker's compensation case is whether compensation for plaintiff's injury was barred by M.C.L. § 418.301(3); MSA 17.237(301)(3)¹ where plaintiff was struck by a car as he returned to his motel after spending six hours visiting bars, drinking alcoholic beverages, playing pool and eating a meal. We reverse the judgment of the Court of Appeals and reinstate the decision of the Worker's Compensation Appellate Commission denying plaintiff benefits.

FACTUAL AND PROCEDURAL BACKGROUND

Eversman worked for Concrete Cutting & Breaking² as a heavy equipment operator. Eversman's work often required him to travel to job sites outside Michigan. On July 11, 1990, Eversman and a co-worker traveled from Indiana to Pennsylvania for an assignment. The following day they reported to work at 7:00 A.M., but were unable to work because of rain. Eversman and his co-worker stayed at the job site for two hours, then left for the day.

At approximately 3:00 P.M., Eversman and his co-worker left their hotel and visited two bars, where they drank beer and played pool. They briefly returned to their motel room to eat food they had brought with them and drink more beer. Next, they went to a bar across the street from the motel, where they ate chicken wings and drank beer. When his co-worker went back to the motel room, Eversman stayed in the bar. At about 10:00 P.M., Eversman was hit by a car while crossing the divided highway that separates the motel from the bar. Eversman suffered a traumatic brain injury with various complicating injuries and fractures. A blood test administered at the hospital determined that Eversman had a blood alcohol level of 0.23.

Eversman filed a worker's compensation claim. The magistrate awarded benefits, concluding that because Eversman's work required him to travel to the area where the accident occurred, the injury arose out of and in the course of his employment. The WCAC reversed, holding that

plaintiff's activities on the day of his injury presented a deviation from the special mission so great that it dwarfed the business purpose of the mission and thus broke the nexus between plaintiff's employment and his subsequent injury. [1995 Mich. ACO 289, 295.]

The Court of Appeals held that M.C.L. § 418.301(3); MSA 17.237(301)(3) did not preclude benefits in this case,³ and reversed the Worker's Compensation Appellate Commission. The Court of Appeals found that Eversman was a "traveling employee" and that traveling employees "are considered to be continuously within the scope of their employment during their trip, except when a distinct departure for a personal errand can be shown." 224 Mich.App. 221, 225, 568 N.W.2d 387 (1997).

This Court denied defendant's motion for leave to appeal. 459 Mich. 919, 589 N.W.2d 774 (1998). On reconsideration, leave to appeal was granted. 461 Mich. 880, 603 N.W.2d 779 (1999).

ANALYSIS

Under the Worker's Disability Compensation Act,

[a]n employee, who receives a personal injury arising out of and in the course of employment by an employer who is subject to this act at the time of the injury, shall be paid compensation as provided in this act. [MCL 418.301(1); MSA 17.237(301)(1).]

It is well settled that an employee who seeks worker's compensation must show by competent evidence not only the fact of an injury, but also that the injury occurred in connection with his employment, arising out of and in the course of that employment. Calovecchi v. Michigan, 461 Mich. 616, 622, 611 N.W.2d 300 (2000); Hills v. Blair, 182 Mich. 20, 26, 148 N.W. 243 (1914).

The primary purpose of the worker's compensation act is to provide benefits to the victims of work-related injuries by allocating the burden of these payments to the employer, and, therefore, ultimately, to consumers. Simkins v. General Motors Corp. (After Remand), 453 Mich. 703, 711, 556 N.W.2d 839 (1996). An employee who suffers an injury arising out of and in the course of his employment will be eligible for compensation regardless of whether the employer was at fault. In return, the employer is immunized from tort liability because the worker's compensation act, under M.C.L. § 418.131(1); MSA 17.237(131)(1), provides that this compensation is the exclusive remedy for a personal injury, except for an injury resulting from an intentional tort. Simkins, supra at 711, 556 N.W.2d 839.

A

Eversman has urged this Court to adopt the rule that employees traveling on business trips are deemed to be continuously within the scope of their employment during the trip, except when a distinct departure for a personal errand can be shown, citing Larson, Workers' Compensation Law. In the instant case it is not necessary for us to decide whether to adopt the traveling employee doctrine. For the purposes of this appeal, we assume that Eversman was within the scope of his employment on the trip to Philadelphia. Regardless of whether Eversman was on a special mission or working as a traveling employee, his recovery is precluded under the plain language of M.C.L. § 418.301(3); MSA 17.237(301)(3).

B

The relevant portion of M.C.L. § 418.301(3); MSA 17.237(301)(3) was enacted by 1980 PA 357, effective January 1, 1982.⁴ In 1981, the Legislature amended the language of the second and third sentences of subsection 301(3) to its current form:

Notwithstanding this presumption, an injury incurred in the pursuit of an activity the major purpose of which is social or recreational is not covered under this act. Any cause of action brought for such an injury is not subject to section 131.

This Court has never addressed the second and third sentences of subsection 301(3).⁵ The Court of Appeals has applied the "social or recreational" test of subsection 301(3) in only two⁶ published cases: Nock v. M & G Convoy, Inc. (On Remand), 204 Mich.App. 116, 514 N.W.2d 200 (1994), and Angel v. Jahm, Inc., 232 Mich.App. 340, 591 N.W.2d 64 (1998).

In Nock, supra, a Pittsburgh truck driver went to a bar in Detroit with fellow truck drivers, and was injured in a fight outside the bar. Although the driver was required by his employer to stay overnight in Detroit, the Court of Appeals held that the plaintiff's injury arose out of a social or recreational activity. Id. at 121, 514 N.W.2d 200. The Court of Appeals affirmed the WCAC's denial of benefits.

In Angel, supra, the plaintiff was on an educational cruise sponsored by his employer. He was injured while riding a rented motorbike around the island of Martinique during his free time. The Court of Appeals held that there plaintiff was not engaged in "an activity the major purpose of which is social or recreational" when he was injured, and reversed the WCAC's grant of benefits. Id. at 344, 591 N.W.2d 64.

In applying the social or recreational test of subsection 301(3),⁷ the Court does not need to examine the purpose of the special mission, the work-day's activities, or the out-of-town trip, but rather must consider the major purpose of the activity in which the plaintiff was engaged at the time of the injury.⁸

The Nock panel was correct in holding that when the plaintiff was injured in a fight outside a bar, his injury occurred during the pursuit of an activity whose main purpose was "recreational or social." We question the Court of Appeals discussion of subsection 301(3) in Angel, and its conclusion that the plaintiff was not engaged in "an activity the major purpose of which is social or recreational" when he was riding a rented motorbike around the island of Martinique during his free time. Although the cruise itself was work-related, renting and riding the motorbike during free time appears to be a social or recreational activity.⁹

Determining the "major purpose" of an activity can often be a difficult exercise. Here, however, there can be no question that the major purpose of Eversman's activities was social or recreational. At the time of the accident Eversman was ending a six-hour span of visiting bars, drinking beer, and playing pool. There is some dispute over whether Eversman's intoxication contributed to his injuries. However, intoxicated or not, the major purpose of Eversman's activities was social or recreational. Eversman was given the day off. No work-related activities were expected of him; his time was his own. He played pool and drank beer, visiting several bars in the process. Eversman argues that because it was necessary for him to eat dinner, the visit to the bar for chicken wings and beer was not a social or recreational activity. We disagree. Examining the totality of circumstances surrounding Eversman's activities during the six-hour episode, we conclude that his conduct fell within the exception set forth in subsection 301(3).

C

The plaintiff urges us to read subsection 301(3) as requiring the deviation analysis set forth in Bush v. Parmenter, Forsythe, Rude, & Dethmers, 413 Mich. 444, 320 N.W.2d 858 (1982).¹⁰ In Bush, this Court addressed an employee's deviation from his employment where, at the end of an out-of-town business trip, the employee had spent seven hours dancing and drinking at various...