Harrison v. Ford Motor Co., 47-8

• Decision Date: 17 July 1963
• Docket Number: No. 47-8,A,47-8
• Citation: 370 Mich. 683,122 N.W.2d 680
• Parties: Samuel HARRISON, Jr., Plaintiff, v. FORD MOTOR COMPANY, a Delaware corporation, and Michigan Foundation Company, Inc., a Michigan corporation, jointly and severally, Defendants. ARTHUR G. McKEE & COMPANY, for the use and benefit of General Accident Assurance Corporation, Plaintiff, v. FORD MOTOR COMPANY, a Delaware corporation, and Michigan Foundation Company, Inc., a Michigan corporation, jointly and severally, Defendants. pril Term.
• Court: Michigan Supreme Court

Page 680

122 N.W.2d 680

370 Mich. 683

Samuel HARRISON, Jr., Plaintiff, v. FORD MOTOR COMPANY, a Delaware corporation, and Michigan

Foundation Company, Inc., a Michigan corporation,

jointly and severally, Defendants.

ARTHUR G. McKEE & COMPANY, for the use and benefit of

General Accident Assurance Corporation, Plaintiff, v. FORD MOTOR COMPANY, a Delaware corporation, and Michigan

Foundation Company, Inc., a Michigan corporation,

jointly and severally, Defendants.

No. 47-8, April Term.

Supreme Court of Michigan.

July 17, 1963.

Glenn M. Taub, Detroit, for appellants.

Goodman, Crockett, Eden, Robb & Philo, by Ernest Goodman, Detroit, for plaintiff and appellee; Norman L. Zemke, Detroit, of counsel.

Before the Entire Bench.

DETHMERS, Justice.

The two cases here consolidated for appeal arise out of the same factual background. Plaintiff in the first suit, Samuel Harrison, Jr., hereinafter called the plaintiff, was injured in the employ of Arthur G. McKee & Company on a contract job being performed by the latter for Ford Motor Company, defendant in both suits. General Accident Assurance Corporation, hereinafter called the insurer, was the workmen's compensation insurer of plaintiff's employer, the McKee Company. It also insured Ford Motor Company against loss for injuries to plaintiff, if contributed to by the negligence of the McKee Company. After the injury the insurer paid plaintiff's medical bills and paid him weekly compensation.

Thereafter plaintiff sued Ford Motor Company as a third party tort feasor under C.L.1948, § 413.15 (Stat.Ann.1960 Rev. § 17.189). Under that same section the insurer filed a motion to intervene in the cause as party plaintiff. Later, on its behalf, its assured, the McKee Company, also filed a separate suit, under that same section, against the same defendants to enforce the same claim urged in the insurer's motion to intervene in the first suit, namely, to recover insurer's workmen's compensation payments to or for plaintiff.

The insurer's motion to intervene as party plaintiff in the plaintiff's suit was denied by one of the Wayne county circuit judges. Another judge of that circuit granted defendant Ford Motor Company's motion to dismiss insurer's suit on the ground that it involved the same cause of action as that in plaintiff's suit and that the insurer's remedy, according to the statute, was by intervention in that suit. Insurer appeals in both cases.

May the insurer maintain its separate action after plaintiff has already filed his suit? The statute provides that if the employee does not start suit within 1 year after the injury, then the employer or its insurer may commence action. Here plaintiff did not sue within the 1 year. However, he did start suit before the insurer did. We think the meaning of the statutory language is that the employer or insurer may not start suit within the 1 year, but may do so thereafter if the employee has not done so. Plaintiff, here, having begun suit, the door was no longer open to suit by the employer or insurer, but intervention by them in the employee's suit, according to the language of the statute, alone remained to them. This legislative intent seems evident, further, from the statutory provision that, in the employee's suit, damages recovered are to be applied on the insurer's payments and future liability, while suit by the employer or its insurer is to be brought in the employee's name, indicating that there is but one cause of action. Muskegon Hardware & Supply Co. v. Green, 343 Mich. 340, 72 N.W.2d 52. The order dismissing insurer's suit was, therefore, proper

Should insurer have been permitted to intervene as party plaintiff in the plaintiff employee's suit? That the insurer is a real party in interest is manifest. Muskegon Hardware & Supply Co. v. Green, supra. As such, the statute permits it 'to join said suit'. Does that mean it may, under any and every circumstance, intervene and participate in the trial of the suit as a party plaintiff?

By its own action insurer has put itself on both sides of the fence in this matter. It has an ostensible interest in recovering from defendant Ford Motor Company, as third party tort feasor, the workmen's compensation payments it has made or in the future may be called upon to make to or for plaintiff under its policy of workmen's compensation insurance covering the McKee Company. On the other hand, its insurance contract with Ford makes it liable for Ford's loss on account of injuries to plaintiff if McKee Company's negligence contributed thereto. Thus, if recovery in plaintiff's suit should equal or be less than the amount paid or to be paid by insurer on its workmen's compensation policy covering plaintiff's employer, would the result be anything other than insurer's collection from Ford of the money it then would be obligated to reimburse Ford under the contract between them? This has the earmarks of an idle process whereby insurer puts into one of its pockets what it has taken from another of its own pockets. What is the...