Holody v. City of Detroit, 58946

• Decision Date: 01 September 1982
• Docket Number: No. 58946,58946
• Citation: 117 Mich.App. 76,323 N.W.2d 599
• Parties: Thomas D. HOLODY and Sylvia Holody, Plaintiffs-Appellants, v. CITY OF DETROIT, a municipal corporation, Adam Hagen, Michael Hunt, Dennis Klimek and David Knox, jointly and severally, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 599

323 N.W.2d 599

117 Mich.App. 76

Thomas D. HOLODY and Sylvia Holody, Plaintiffs-Appellants, v. CITY OF DETROIT, a municipal corporation, Adam Hagen Michael Hunt, Dennis Klimek and David Knox jointly and severally, Defendants-Appellees.

No. 58946.

Court of Appeals of Michigan.

Submitted April 19, 1982.

Decided June 9, 1982.

Released for Publication Sept. 1, 1982.

Frank R. Langton & Associates, P. C. by Barry Sigman, Warren, for plaintiffs-appellants.

Tyler & Canham, P. C. by Michael J. Walter and Robert E. Graziani, Detroit, for defendants-appellees.

Before BRONSON, P. J., and WALSH and C. W. SIMON, ^* JJ.

WALSH, Judge.

Plaintiffs Thomas and Sylvia Holody appeal the circuit court's entry of summary judgment in favor of defendants City of Detroit, Adam Hagen, Michael Hunt, Dennis Klimek and David Knox. GCR 1963, 117.2(1).

On April 17, 1978, plaintiff Thomas Holody, a City of Detroit police officer, was driving a police car which collided with a Detroit fire truck which had allegedly failed to heed a stop sign. The fire truck was allegedly being driven by defendant Adam Hagen, a Detroit firefighter. The remaining individual defendants, also Detroit firefighters, were passengers in the fire truck.

Plaintiffs filed this lawsuit seeking compensation for personal injuries and loss of consortium. The trial court found that plaintiffs' suit was barred against all defendants by the exclusive remedy and co-employee provisions of the Worker's Disability Compensation Act (WDCA). M.C.L. Sec. 418.131; M.S.A. Sec. 17.237(131), M.C.L. Sec. 418.827(1); M.S.A. Sec. 17.237(827)(1).

Plaintiffs argue that they are not barred by the exclusive remedy provision of the WDCA, M.C.L. Sec. 418.131; M.S.A. Sec. 17.237(131), because, pursuant to MCL 418.161(1)(a); MSA 17.237(161)(1)(a), ¹ Mr. Holody waived his right to receive workers' compensation benefits and, in lieu thereof, has received "like benefits" under the Detroit City Charter. Even accepting plaintiffs' argument that the charter benefits are "like benefits", ² we reject plaintiffs' theory that receipt of such benefits rendered inapplicable, as to them, the prohibition against pursuit of a common law tort action against Mr. Holody's employer.

In a case involving a Detroit firefighter's attempt to sue the City of Detroit for injuries sustained in the course of his employment, the Supreme Court rejected the notion that receipt of benefits under a city ordinance in lieu of compensation under the workers' compensation statute gave rise to a right on the part of the employee to sue his employer.

"We cannot accept this theory as a basis of recovery. The plaintiff was bound by the provisions of the act. So was the city, his employer. When he waived his right to compensation for the purpose of securing a pension, he did not thereby release himself from other provisions of the act. Prior to accepting the pension, he had two remedies, each for the same wrong. He had a right to compensation or to a pension. He could not have both. He could not maintain a common-law action for damages against his employer, for his right to maintain such action was taken from him by the statute, 2 Comp. Laws 1929, Sec. 8410. Having elected to be bound by the statute, he is not entitled to a remedy which it has abolished." Bross v. Detroit, 262 Mich. 447, 449, 247 N.W. 714 (1933).

On the authority of Bross, we hold that Mr. Holody's receipt of benefits under the Detroit City Charter did not give him the right to sue his employer in tort.

A second argument advanced by plaintiffs in support of their contention that they are not precluded from pursuing their common law tort action against Mr. Holody's employer is premised on the assertion that their cause of action is not based on Mr. Holody's employment.

An action in tort against one's employer is precluded by the exclusive remedy provision of the WDCA if it seeks recovery for personal injury arising out of and in the course of employment and if the cause of action is based on the employment relationship. M.C.L. Sec. 418.301(1); M.S.A. Sec. 17.237(301)(1), M.C.L. Sec. 418.131, M.S.A. Sec. 17.237(131), Bourassa v. ATO Corp., 113 Mich.App. 517, 317 N.W.2d 669 (1982), Bushbacher v. Great Lakes Steel Corp., 114 Mich.App. 833, 319 N.W.2d 691 (1982).

In this case, plaintiffs admit that Mr. Holody is seeking damages for personal injuries which he suffered during working hours and while he was engaged in the usual duties of his employment as a Detroit police officer. ³ Mr. Holody's presence in the accident vehicle was a "routine and integral part of" his employment. See Peoples v. Chrysler Corp., 98 Mich.App. 277, 283, 296 N.W.2d 237 (1980). We are not persuaded that Mr. Holody's status as employee was unrelated to or merely incidental to plaintiffs' cause of action. The exclusive remedy provision of the WDCA, therefore, bars plaintiffs' suit against the city. Compare Panagos v. North Detroit General Hospital, 35 Mich.App. 554, 192 N.W.2d 542 (1971).

Nor are we persuaded by plaintiffs' argument that they are not suing Mr. Holody's employer but rather the employer of the occupants of the fire truck. A similar attempt to treat separate agencies of the City of Detroit as separate employers for purposes of the WDCA was rejected by the Supreme Court in Bross v. Detroit, supra.

With respect to the individual defendants, plaintiffs argue that they were not co-employees of Mr. Holody and that these defendants, therefore, are not immune from suit under M.C.L. Sec. 418.131, M.S.A. Sec. 17.237(131), and M.C.L. Sec. 418.827(1); M.S.A. Sec. 17.237(827)(1), the exclusive remedy and co-employee provisions of the WDCA. Plaintiffs acknowledge that both Mr. Holody and the individual defendants were employed by the City of Detroit. Plaintiffs claim, however, that the firefighters worked for "different unrelated departments" within the city, and argue that the co-employee provision is, therefore, inapplicable. ⁴

In Jones v. Bouza, 381 Mich. 299, 160 N.W.2d 881 (1968), the Supreme Court held that an assembly line employee of Ford Motor Company was precluded from suing a Ford staff physician for malpractice. The result was dictated by the plain words of the WDCA, which abolishes an injured employee's common law right of action against all "natural person[s] in the same employ" for job-related injuries. M.C.L. Sec. 418.827(1), M.S.A. Sec. 17.237(827)(1). As this Court noted in its decision in Jones, to qualify as a co-employee, a person need not be working on the same job or in the same department. He need only be working for the same employer. Jones v. Bouza, 7 Mich.App. 561, 565, 152 N.W.2d 393 (1967), Pettaway v. McConaghy, 367 Mich. 651, 655, 116 N.W.2d 789 (1962).

It is not disputed that the individual defendants were acting in the course of their employment at the time of the collision. Robards v. Estate of Leopold J. Kantzler, 98 Mich.App. 414, 419, 296 N.W.2d 265 (1980). These defendants were employed by the City of Detroit, as was Mr. Holody. The trial court's ruling that the co-employee provision of the WDCA bars this suit against them was proper.

Because Mr. Holody's claims for personal injuries are barred, Mrs. Holody's derivative claim for loss of consortium is also barred. Bourassa v. ATO Corp., supra.

Affirmed. Costs to appellees.

* Charles W. Simon, Jr., 8th Judicial Circuit Judge, sitting on Court of Appeals by assignment pursuant to Const. 1963, Art. 6, Sec. 23, as amended 1968.

1 "Police officers, firefighters, or employees of the police or fire departments, or their dependents, in municipalities or villages of this state having charter provisions prescribing like benefits, may waive the provisions of this act and accept like...