Harris v. Vernier, Docket No. 208750.

• Decision Date: 18 October 2000
• Docket Number: Docket No. 208750.
• Citation: 617 N.W.2d 764,242 Mich. App. 306
• Parties: Alice HARRIS, Plaintiff-Appellant, v. John Derick VERNIER, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

617 N.W.2d 764

242 Mich. App. 306

Alice HARRIS, Plaintiff-Appellant, v. John Derick VERNIER, Defendant-Appellee.

Docket No. 208750.

Court of Appeals of Michigan.

Submitted December 7, 1999, at Detroit.

Decided August 22, 2000, at 9:20 a.m.

Released for Publication October 18, 2000.

Dib and Fagan, P.C. (by Cara L. Cunningham), Detroit, for the plaintiff.

Vandeveer Garzia, P.C. (by Hal O. Carroll, James A. Sullivan, and Laurie S. Raab), Detroit, for the defendant.

Before: SMOLENSKI, P.J. and WHITBECK and ZAHRA, JJ.

ZAHRA, J.

Plaintiff appeals as of right from the trial court's order granting summary disposition for defendant pursuant to MCR 2.116(C)(4) (lack of subject-matter jurisdiction) and dismissing plaintiff's third-party no-fault claim. We affirm.

The essential facts are not in dispute. In the early morning of September 22, 1995, the parties were driving separate vehicles when they were involved in a collision in the parking lot of a Ford Motor Company plant. Plaintiff and defendant were employees of Ford, both having finished their shifts at the plant just before the collision. Plaintiff brought suit, alleging defendant's negligence in operating his vehicle caused her serious impairment of body function. See M.C.L. § 500.3135(1); MSA 24.13135(1).¹ Defendant brought his first motion for summary disposition pursuant to MCR 2.116(C)(10), arguing any injury is compensable only under the Worker's Disability Compensation Act (WDCA), M.C.L. § 418.101 et seq.; MSA 17.237(101) et seq., because the parties were employees present on their employer's premises when the collision occurred. As such, defendant argued, plaintiff's suit is barred by the exclusive remedy provision of the WDCA, M.C.L. § 418.131; MSA 17.237(131). Plaintiff argued, in response, that defendant had failed to assert the affirmative defense of "immunity granted by law" under MCR 2.111(F)(3)(a) or (b) in his first responsive pleading and, thus, pursuant to MCR 2.111(F)(2), waived any defense based on the exclusive remedy provision of the WDCA. The trial court initially agreed that defendant's assertion of the exclusive remedy provision constituted an affirmative defense and ruled that defendant waived the defense when he failed to raise it in his answer to plaintiff's complaint or through amendment. The trial court also denied defendant's request to amend his answer to include a WDCA defense given the late stage of the proceedings. Thereafter, defendant brought a motion for reconsideration and a second motion for summary disposition pursuant to MCR 2.116(C)(4), arguing the trial court lacks subject-matter jurisdiction over plaintiff's claim. Defendant asserted that the suit should be characterized as a workplace injury claim that falls within the exclusive jurisdiction of the Bureau of Worker's Compensation. Plaintiff argued, in response, that the case involves a personal injury claim arising from an automobile accident over which the trial court has subject-matter jurisdiction. The trial court reversed its prior ruling and granted summary disposition for defendant, ruling that the Bureau of Worker's Compensation has exclusive subject-matter jurisdiction over plaintiff's claim.

On appeal, plaintiff argues that the trial court erred in concluding that the exclusive remedy provision of the WDCA, when asserted as a defense to a third-party no-fault claim brought in the circuit court, constitutes a challenge to the court's subject-matter jurisdiction over the claim. Plaintiff claims that defendant's assertion of the exclusive remedy provision is more properly characterized as a waivable affirmative defense based on immunity granted by law. We review a trial court's decision on a motion for summary disposition based on MCR 2.116(C)(4) de novo to determine if the moving party was entitled to judgment as a matter of law, or if affidavits or other proofs demonstrate there is an issue of material fact. MCR 2.116(I)(1); Herbolsheimer v. SMS Holding Co., Inc., 239 Mich.App. 236, 240, 608 N.W.2d 487 (2000). Further, whether a trial court had subject-matter jurisdiction over a claim is a question of law that is reviewed de novo. Specht v. Citizens Ins. Co. of America, 234 Mich.App. 292, 294, 593 N.W.2d 670 (1999).

The exclusive remedy provision of the WDCA includes, in pertinent part:

(1) The right to the recovery of benefits as provided in this act shall be the employee's exclusive remedy against the employer for a personal injury or occupational disease. The only exception to this exclusive remedy is an intentional tort. [MCL 418.131(1); MSA 17.237(131)(1).]

The underlying rationale for limiting an employee's remedies is as follows:

Under the WDCA, employers provide compensation to employees for injuries suffered in the course of employment, regardless of fault. "In return for this almost automatic liability, employees are limited in the amount of compensation they may collect from their employer, and, except in limited circumstances, may not bring a tort action against the employer." [Herbolsheimer, supra at 240, 608 N.W.2d 487 (citations omitted).]

The exclusive remedy provision limits an employee's recovery when the employee "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." MCL 418.301(1); MSA 17.237(301)(1).² It is well settled that the exclusive remedy provision applies when an employee is injured by the negligent acts of his employer or by the negligent acts of a coemployee. Berger v. Mead, 127 Mich.App. 209, 213-214, 338 N.W.2d 919 (1983); citing Holody v. Detroit, 117 Mich.App. 76, 80-82, 323 N.W.2d 599 (1982), and Dixon v. Sype, 92 Mich.App. 144, 148, 284 N.W.2d 514 (1979); see Farrell v. Dearborn Mfg. Co., 416 Mich. 267, 275-278, 330 N.W.2d 397 (1982).

In the present case, plaintiff contends defendant waived the defense that plaintiff's automobile negligence claim is barred by the exclusive remedy provision of the WDCA because he failed to raise it as an affirmative defense. MCR 2.111(F) provides, in part:

(F) Defenses; Requirement That Defense Be Pleaded.

* * *

(2) Defenses Must Be Pleaded; Exceptions. A party against whom a cause of action has been asserted by complaint, cross-claim, counterclaim, or third-party claim must assert in a responsive pleading the defenses the party has against the claim. A defense not asserted in the responsive pleading or by motion as provided by these rules is waived, except for the defenses of lack of jurisdiction over the subject matter of the action, and failure to state a claim on which relief can be granted.

* * *

(3) Affirmative Defenses. Affirmative defenses must be stated in a party's responsive pleading, either as originally filed or as amended in accordance with MCR 2.118. Under a separate and distinct heading, a party must state the facts constituting

(a) an affirmative defense, such as contributory negligence; the existence of an agreement to arbitrate; assumption of risk; payment; release; satisfaction; discharge; license; fraud; duress; estoppel; statute of frauds; statute of limitations; immunity granted by law; want or failure of consideration; or that an instrument or transaction is void, voidable, or cannot be recovered on by reason of statute or nondelivery;

(b) a defense that by reason of other affirmative matter seeks to avoid the legal effect of or defeat the claim of the opposing party, in whole or in part;

(c) a ground of defense that, if not raised in the pleading, would be likely to take the adverse party by surprise.

A party that fails to raise an affirmative defense as required by MCR 2.111(F) waives the defense. Travelers Ins. Co. v. Detroit Edison Co., 237 Mich.App. 485, 494-495, 603 N.W.2d 317 (1999).

Michigan courts have failed to address specifically the issue whether a party's assertion of the exclusive remedy provision of the WDCA constitutes a challenge to a court's power to decide a claim in light of the Bureau of Worker's Compensation exclusive subject-matter jurisdiction over worker's compensation claims or whether the defense is more properly characterized as a grant of immunity or other type of waivable affirmative defense. We conclude that defendant did not waive any defense based on the exclusive remedy provision when he did not raise it in his responsive pleading. We hold that a party's assertion of the exclusive remedy provision of the WDCA is a direct challenge to the trial court's subject-matter jurisdiction, not within the scope of the waiver rule in MCR 2.111(F).

As previously stated, the exclusive remedy provision limits an employee's right to recover against his employer or a coemployee for a personal injury arising out of the course of his employment to the benefits available under the WDCA. M.C.L. § 418.131; MSA 17.237(131), M.C.L. § 418.301; MSA 17.237(301). Significantly, M.C.L. § 418.841(1); MSA 17.237(841)(1) confers exclusive jurisdiction of claims under the WDCA on the Bureau of Worker's Compensation.³ Because the Bureau of Worker's Compensation is granted exclusive jurisdiction over the only remedy available as a result of the exclusive remedy provision, we hold that a party's assertion of the exclusive remedy provision as a defense to a claim necessarily constitutes a challenge to the trial court's subject-matter jurisdiction over the claim. There are numerous opinions that analyze whether a trial court had subject-matter jurisdiction over a claim in light of a defendant's assertion of a defense based on the exclusive remedy provision. See Adams v. Nat'l Bank of Detroit, 444 Mich. 329, 370, 383, 508 N.W.2d 464 (1993) (Brickley, J.); Herbolsheimer, supra; James v. Commercial Carriers, Inc., 230 Mich.App. 533, 536, 583 N.W.2d 913 (1998); Winters v. Dalton, 207 Mich.App. 76, 78-79, 523 N.W.2d 636 (1994); Schefsky v. Evening News Ass'n, 169 Mich.App. 223, 225-226, 228, 425 N.W.2d 768 (1988). Indeed, this Court has stated, "We review...