Genson v. Bofors-Lakeway, Inc.

• Decision Date: 06 May 1983
• Docket Number: INC,Docket No. 58285,BOFORS-LAKEWA
• Citation: 332 N.W.2d 507,122 Mich.App. 470
• Parties: Richard and Bonnie M. GENSON, Frank and Jacquelyn Rahn, Richard and Sandra Sue Lasser, Robert and Gertrude L. Townsend, Harold and Carol A. Splitstone, Plaintiffs- Appellants, v., Defendant-Appellee. 122 Mich.App. 470, 332 N.W.2d 507
• Court: Court of Appeal of Michigan — District of US

Page 507

332 N.W.2d 507

Richard and Bonnie M. GENSON, Frank and Jacquelyn Rahn Richard and Sandra Sue Lasser, Robert and Gertrude L. Townsend, Harold and Carol A Splitstone Plaintiffs- Appellants, v. BOFORS-LAKEWAY, INC., Defendant-Appellee.

Docket No. 58285.

122 Mich.App. 470, 332 N.W.2d 507

Court of Appeals of Michigan.

Submitted April 9, 1982.

Decided Jan. 19, 1983.

Released for Publication May 6, 1983.

[122 MICHAPP 472] Marcus, Ruck, Flynn & Wells, P.C. by David M. Wells, Muskegon, for plaintiffs-appellants.

[122 MICHAPP 473] Baxter & Hammond by Joel M. Boyden and W. Stevens Vanderploeg, Grand Rapids, for defendant-appellee on appeal.

Before MacKENZIE, P.J., and HOLBROOK and DeWITT ^*, JJ.

MacKENZIE, Presiding Judge.

It is alleged and admitted that the male plaintiffs are employees of defendant within the meaning of the Worker's Disability Compensation Act, M.C.L. Sec. 418.131; M.S.A. Sec. 17.237(131). The male plaintiffs have alleged that they were exposed in the course of their employment to large quantities of the chemical benzidine and that, as a result, they developed cancer of the bladder. Plaintiffs alleged that defendant knew that benzidine caused cancer of the bladder but that defendant "maliciously, intentionally, and wantonly" assured plaintiffs that exposure to benzidine would not harm them. The circuit judge granted accelerated judgment for defendant pursuant to GCR 1963, 116.1(2) on the ground that plaintiffs' claim was barred by the exclusive remedy provision of the Worker's Disability Compensation Act, M.C.L. Sec. 418.131; M.S.A. Sec. 17.237(131). Plaintiffs appeal by right.

Plaintiffs argue that the exclusive remedy provision does not bar an action for an intentional tort and that, alternately, plaintiffs' action was not barred because the male plaintiffs are suffering from a condition which is not presently disabling and therefore is not compensable under the act. Defendant argues that plaintiffs' action presented questions concerning compensation over which the [122 MICHAPP 474] Bureau of Workers' Compensation has exclusive jurisdiction.

In Neal v. Roura Iron Works, Inc., 66 Mich.App. 273, 275, 238 N.W.2d 837 (1975), the Court said:

"[I]n order to decide that plaintiff's present action is precluded by the exclusive remedy provision of the Workmen's Compensation Act, we must answer the following three questions in the affirmative- : (1) Were the 'conditions of liability under the act' present at the time of plaintiff's injury?, (2) Is plaintiff seeking to recover damages for personal injuries?, and (3) Is plaintiff's suit based upon the employer-employee relationship?"

See also Peoples v. Chrysler Corp., 98 Mich.App. 277, 281-282, 296 N.W.2d 237 (1980), and Bourassa v. ATO Corp., 113 Mich.App. 517, 519-520, 317 N.W.2d 669 (1982). We will examine the three questions posed by Neal in reverse order.

Issues concerning injuries and whether they grew out of and in the course of the employment relationship must be initially submitted to the Bureau of Workers' Compensation for determination as to jurisdiction and liability. Szydlowski v. General Motors Corp., 397 Mich. 356, 245 N.W.2d 26 (1976); Herman v. Theis, 10 Mich.App. 684, 160 N.W.2d 365 (1968); Bednarski v. General Motors Corp., 88 Mich.App. 482, 276 N.W.2d 624 (1979); Dixon v. Sype, 92 Mich.App. 144, 284 N.W.2d 514 (1979); Sewell v. Bathey Mfg. Co., 103 Mich.App. 732, 303 N.W.2d 876 (1981); Johnson v. Arby's, Inc., 116 Mich.App. 425, 323 N.W.2d 427 (1982). Only cases which are based on a different relationship between the parties and in which it is clear that the employer-employee relationship between the parties is unrelated to the cause of action may be commenced in circuit court without an initial [122 MICHAPP 475] determination by the bureau. Compare Panagos v. North Detroit General Hospital, 35 Mich.App. 554, 192 N.W.2d 542 (1971), with Neal, supra. The cause of action alleged here was not so clearly unrelated to the employer-employee relationship as to fall within the Panagos exception.

Various panels of this Court have relied on either the nature of the cause of action stated or the type of injury alleged to hold that plaintiff was not seeking to recover damages for personal injuries. See Moore v. Federal Dep't Stores, Inc., 33 Mich.App. 556, 190 N.W.2d 262 (1971) (claim for damages for humiliation, embarrassment, and deprivation of personal liberty arising out of false imprisonment), Milton v. Oakland County, 50 Mich.App. 279, 213 N.W.2d 250 (1973) (claim for damages for breach of contract, including damages for physical and mental injuries arising out of breach), Stimson v. Michigan Bell Telephone Co., 77 Mich.App. 361, 258 N.W.2d 227 (1977) (claim for damages for sex discrimination; damages for mental injuries culminating in disablement held not recoverable), Broaddus v. Ferndale Fastener Division, Ring Screw Works, 84 Mich.App. 593, 269 N.W.2d 689 (1978) (claim for damages for intentional infliction of emotional distress through wrongful denial of compensation benefits; damages for compensable physical injuries held not recoverable), and Pacheco v. Clifton, 109 Mich.App. 563, 311 N.W.2d 801 (1981) (claim for damages for discrimination based on national origin, including damages for mental injuries culminating in disablement). These cases are not consistent in all respects; compare Milton and Pacheco with Stimson and Broaddus. However, they clearly show that damages such as plaintiffs seek to recover here are damages for personal injuries and so are within the act.

[122 MICHAPP 476] Plaintiffs point out that they have claimed damages for mental injuries such as humiliation, loss of quality of life, and, in the case of plaintiff wives, loss of spousal companionship. Since these claims derive from plaintiff husbands' claimed physical injuries, they do not support a conclusion that plaintiffs' action was not one to recover damages for personal injuries. Cole v. Dow Chemical Co., 112 Mich. 198, 206, 315 N.W.2d 565 (1982).

Plaintiffs suggest that intentional torts are outside the scope of the exclusive remedy provision regardless of whether they involve damages for personal injuries. Plaintiffs place considerable reliance on decisions from other jurisdictions. These and similar decisions are discussed in 2A Larson, Workmen's Compensation Law, Sec. 68.11, pp. 13-1--13-2:

"Several legal theories have been advanced to support this result. The best is that the employer will not be heard to allege that the injury was 'accidental' and therefore was under the exclusive provisions of the Workmen's Compensation Act, when he himself intentionally committed the act. A second is that the employer severed the employment relation by his act of violence. Unless the facts show that the parties did indeed treat the relation as terminated from that time on, this argument is rather fictitious, especially when, as sometimes happens, the employee continues on the same job after the assault. The most fictitious theory of all is that the assault does not arise out of the employment; for if it is a work-connected assault, it is no less so because the assailant happens to be the employer. The nonaccidental theory, then, is the most satisfactory; but the others may be put to work in jurisdictions which do not require that the injury be accidental." (Footnotes omitted.)

The first theory, which Larson regards as the most satisfactory, is inapplicable in Michigan because[122 MICHAPP 477] our statute contains no requirement of accidental injury. As we have shown, Michigan allows an action for damages which, as a matter of fact, did not arise out of the employer-employee relationship, but except in clear cases, such a claim must be submitted to the Bureau of Workers' Compensation for initial determination. Plaintiffs would have us go beyond this rule, either by holding that as a matter of law intentional torts do not arise out of the employer-employee relationship by adopting one of the "fictions" discussed by Larson or by holding that the drafters of Michigan's statute intended that actions for intentional torts, like actions in which plaintiff is not seeking to recover damages for personal injuries, fall outside the exclusive remedy provision.

Some Michigan authority supports such a result. In Kissinger v. Mannor, 92 Mich.App. 572, 577, 285 N.W.2d 214 (1979), the Court said:

"The Legislature could not have intended that the exclusive remedy section of the act be construed to preclude a plaintiff's recovery for injuries suffered in an intentional tort such as the one before us."

However, this statement has little precedential value because it is expressly limited to an intentional tort such as the one then before the Court and because the Court was careful to point out that the case fell within other exceptions to the exclusive remedy provision. The Court noted that plaintiff's injuries had not resulted in a disabling condition for which compensation under the act was available and that plaintiff's injuries did not arise out of the employer-employee relationship and occurred irrespective of the fact that plaintiff happened to be employed at the time.

In McKinley v. Holiday Inn, 115 Mich.App. 160, [122 MICHAPP 478] 165, 320 N.W.2d 329 (1982), the Court relied on Professor Marcus Plant, Torts, 19 Wayne L.Rev. 703, 748-749 (1973), to conclude that the Legislature did not intend the exclusive remedy provision to bar an action for intentional tort. However, this conclusion was also dicta because the Court held that plaintiff's complaint was grounded solely in negligence.

The exceptions to the exclusive remedy provision for actions which did not arise out of the employer-employee relationship and for actions in which plaintiff is not seeking to recover...