Hoffman v. National Mach. Co.

• Decision Date: 31 March 1982
• Docket Number: Docket No. 54554
• Citation: 317 N.W.2d 289,113 Mich.App. 66
• Parties: Sadie Kidd HOFFMAN, Plaintiff-Appellant, v. NATIONAL MACHINE COMPANY, Defendant, and Fabristeel, Inc., Defendant-Appellee. 113 Mich.App. 66, 317 N.W.2d 289
• Court: Court of Appeal of Michigan — District of US

Page 289

317 N.W.2d 289

Sadie Kidd HOFFMAN, Plaintiff-Appellant, v. NATIONAL MACHINE COMPANY, Defendant, and Fabristeel, Inc., Defendant-Appellee.

Docket No. 54554.

113 Mich.App. 66, 317 N.W.2d 289

Court of Appeals of Michigan.

Submitted Oct. 12, 1981.

Decided Feb. 2, 1982.

Released for Publication March 31, 1982.

[113 MICHAPP 67] Lopatin, Miller, Freedman, Bluestone, Erlich & Rosen, Detroit (by Steven G. Silverman, Detroit), for plaintiff-appellant.

Wilson, Portnoy, Basso & Leader, P. C., Bloomfield Hills (by Robert P. Roth, Bloomfield Hills), for defendant.

Before MacKENZIE, P. J., and BRONSON and BEASLEY, JJ.

MacKENZIE, Presiding Justice.

This case presents a tort claim arising out of an industrial accident. Plaintiff was [113 MICHAPP 68] assigned to work for defendant Fabristeel, Inc., through "Somebody Sometime", a labor broker. Plaintiff was injured in the course of her work at defendant Fabristeel's plant when her hair became caught in a machine. Plaintiff's products liability claim against defendant National Machine Company is not at issue in this appeal.

Defendant Fabristeel moved for summary judgment pursuant to GCR 1963, 117.2(3) on the ground that there was no genuine issue of material fact and that plaintiff's claim was barred as a matter of law 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). In support of this motion, defendant filed an affidavit which stated:

"1. That I, David W. Sickels, am presently employed by Fabristeel Products, Inc. as plant manager and was so employed on August 15, 1977.

"2. That Fabristeel Products, Inc. is a corporation which manufactures pierce nuts which are special, system fed fasteners used in the manufacturer [sic ] of automobiles.

"3. That an integral part of our manufacturing business involves the use of a 'tapper machine' which is a machine used to cut the spiral threads in the pierce nut.

"4. That an operator of a tapper machine such as that function performed by Sadie Kidd Hoffman in August, 1977, is an integral part of the manufacturing process performed at Fabristeel Products, Inc.

"5. That the training of Mrs. Hoffman was supplied by one or more of her co-workers in the tapping department followed by assignment to work alongside an experienced operator for one week prior to operating a tapping machine herself.

"6. That during the performance of her functions, Mrs. Hoffman would be observed and critiqued as necessary by her immediate supervisor, [113 MICHAPP 69] the foreman on the afternoon shift. Mrs. Hoffman's immediate supervisor, the foreman on that shift, had the authority to discipline her as well as other employees under his supervision.

"7. Fabristeel Products, Inc., through the actions of the plant manager, myself, has the authority to fire an employee including Mrs. Hoffman.

"8. The sum paid to 'Somebody Sometime' the temporary employment agency, paid for the services of Mrs. Hoffman were calculated on an hourly rate in excess to that of one on the Fabristeel payroll as an employee doing the same function. In turn, the rate paid to Sadie Kidd Hoffman by 'Somebody Sometime' was less than the rate paid to a Fabristeel employee by Fabristeel Products, Inc.

"9. If called upon to testify in the above-entitled matter, I will testify the same as set forth above."

Plaintiff did not file a counter-affidavit. The circuit judge granted defendant's motion, and plaintiff appeals by right.

The standard applied by the circuit judge was derived from Renfroe v. Higgins Rack Coating & Manufacturing Co., Inc., 17 Mich.App. 259, 264-267, 169 N.W.2d 326 (1969), a case which also involved a plaintiff assigned by a labor broker to work for another company:

"It has long been the law in this State that one who is in the general employ of one employer may become the special employee of another under certain circumstances. Janik v. Ford Motor Co. (1914), 180 Mich. 557 ; Arnett v. Hayes Wheel Co. (1918), 201 Mich. 67 ; Wing v. Clark Equipment Co. (1938), 286 Mich. 343 . But the Michigan Supreme Court has recently revised the criteria which are to be used to determine whether employment exists for purposes of 'social remedial legislation' such as workmen's compensation and employment security. Tata v. Muskovitz (1959), 354 Mich. 695 , adopting Justice TALBOT SMITH's dissent in Powell v. Employment Security Commission (1956), 345 Mich. 455, 462 ; [113 MICHAPP 70] Schulte v. American Box Board Company (1959), 358 Mich. 21 ; Goodchild v. Erickson (1965), 375 Mich. 289 . These cases de-emphasize the old touchstone concept of 'control' in favor of the broader test of 'economic reality'. In assessing this economic reality, control is now just one of the factors to be considered.

* * *

"The economic reality of this case is that both ETS and Higgins Co. were employers of Roy Renfroe, each in a different way. It is not necessary to make fine semantic distinctions as to types of degrees of control, et cetera. It is enough to say that either could be liable under the workmen's compensation act, therefore, both are protected by it."

Under the circumstances presented here, the question of the existence of an employer-employee relationship was properly resolved by the court. See Nichol v. Billot, 406 Mich. 284, 302-303, 279 N.W.2d 761 (1979), quoting approvingly from Flick v. Crouch, 434 P.2d 256 (Okl.1967):

" 'When a defendant's status forms a material issue in an evidentiary proceeding, * * * which has for its object to determine whether the action sought to be prosecuted is one abrogated or taken away by the Workmen's Compensation Law, * * * or "reserved" to the workman (or his widow) * * * the rule to be applied by the trial court should be the same as that which governs at the trial: if the evidence concerning the status of a party defendant is reasonably susceptible of but a single inference, the question is one purely of law to be decided by the court * * * but where the facts bearing on such issue are either disputed, or conflicting inferences may be reasonably drawn from the known facts, it is error to withhold the issue from the determination of the jury.' "

On appeal, plaintiff does not argue that an issue of material fact existed; rather, plaintiff argues [113 MICHAPP 71] that the trial judge applied an erroneous legal standard. According to plaintiff, the correct standard is to be found in 1C Larson, Workmen's Compensation Law, Sec. 48.00:

"When a general employer lends an employee to a special employer, the special employer becomes liable for workmen's compensation only if

"(a) the employee has made a contract of hire, express or implied, with the special employer;

"(b) the work being done is essentially that of the special employer; and

"(c) the special employer has the right to control the details of the work.

"When all three of the above conditions are satisfied in relation to both employers, both employers are liable for workmen's compensation.

"Employment may also be 'dual,' in the sense that, while the employee is under contract of hire with two different employers, his activities on behalf of each employer are separate and can be identified with one employer or the other. When this separate identification can clearly be made, the particular employer whose work was being done...