Howard v. Dundee Mfg. Co., Inc.

• Decision Date: 09 September 1992
• Docket Number: Docket No. 133027
• Citation: 196 Mich.App. 38,492 N.W.2d 478
• Parties: William B. HOWARD, Plaintiff-Appellant, v. DUNDEE MANUFACTURING COMPANY, INC., Defendant-Appellee, and Yeck Manufacturing Company, Intercole Bolling Corporation, and Loopco Industries, Inc., Defendants.
• Court: Court of Appeal of Michigan — District of US

Page 478

492 N.W.2d 478

196 Mich.App. 38

William B. HOWARD, Plaintiff-Appellant, v. DUNDEE MANUFACTURING COMPANY, INC., Defendant-Appellee and Yeck Manufacturing Company, Intercole Bolling Corporation and Loopco Industries, Inc., Defendants.

Docket No. 133027.

Court of Appeals of Michigan.

Submitted July 7, 1992, at Detroit.

Decided Sept. 9, 1992, at 9:15 a.m.

Released for Publication: Dec. 21, 1992.

Philo, Atkinson, Steinberg, White & Keenan by Stanley L. White and David D. Whitaker, Detroit, for plaintiff-appellant.

Cummings, McClorey, Davis & Acho, P.C. by Gail P. Massad, Livonia, for defendant-appellee.

Before MURPHY, P.J., and SHEPHERD and EVELAND, ^* JJ.

PER CURIAM.

Plaintiff, William B. Howard, appeals as of right from an order of summary disposition in favor of defendant Dundee Manufacturing Company, Inc.

On July 22, 1987, plaintiff was severely injured when his hand got caught in a machine he was operating while employed by Ladapa Die & Tool, Inc. Ladapa and Dundee are sister corporations that are involved in sheet metal stamping. They share the same building, personnel, and equipment. As a result of his injury, plaintiff filed products liability actions against defendants Yeck Manufacturing Company, Yoder Company, and Intercole Bolling Corporation, successor-in-interest to Yoder. On April 27, 1988, plaintiff filed an amended complaint naming Dundee as an additional defendant. ¹ Plaintiff alleged that Dundee, as the "owner and/or seller" of the machine, was negligent and breached its duties by failing to adequately instruct users on the safe operation of the machine, failing to provide and install proper safety devices and warnings, and failing to supervise use of the machine. With the exception of Dundee, all the parties named in the action either reached a settlement with plaintiff or entered into a stipulation to dismiss. Consequently, Dundee is the only defendant on appeal.

On May 1, 1989, Dundee moved for summary disposition under MCR 2.116(C)(8) and (10), claiming that, under the economic reality test, plaintiff was an employee of both Dundee and Ladapa and that plaintiff's exclusive remedy against Dundee rested in the Workers' Disability Compensation Act pursuant to M.C.L. Sec. 418.131; M.S.A. Sec. 17.237(131). On October 16, 1989, the trial court granted Dundee's motion.

Plaintiff argues that the trial court erred in granting summary disposition in favor of Dundee under the economic reality test because he was not an employee of Dundee at the time of his injury.

The exclusive remedy provision of the Workers' Disability Compensation Act, M.C.L. Sec. 418.131; M.S.A. Sec. 17.237(131), provides:

The right to the recovery of benefits as provided in this act shall be the employee's exclusive remedy against the employer.

In Tucker v. Newaygo Co., 189 Mich.App. 637, 639-640, 473 N.W.2d 706 (1991), this Court, quoting from Derigiotis v. J.M. Feighery Co., 185 Mich.App. 90, 94-95, 460 N.W.2d 235 (1990), set forth the standard of review and legal principles to be applied in such cases:

In Kenyon v. Second Precinct Lounge, 177 Mich.App. 492, 497; 442 N.W.2d 696 (1989), a panel of this Court enunciated the standard for deciding motions for summary disposition on the issue whether a company is the employer of a worker under the WDCA:

"Whether a company is a particular worker's 'employer,' as that term is used in the workers' compensation act, is a question of law for the courts to decide if the evidence on the matter is reasonably susceptible of but a single inference. Nichol v. Billot, 406 Mich. 284, 302-303; 279 N.W.2d 761 (1979) (quoting Flick v. Crouch, 434 P.2d 256 [Okla, 1967] ). Only where the evidence bearing on the company's status is disputed, or where conflicting inferences may reasonably be drawn from the known facts, is the issue one for the trier of fact to decide. Id."

The appropriate test for determining whether defendant ... was plaintiff's employer is the economic reality test. Wells v Firestone Tire & Rubber Co, 421 Mich 641, 647; 364 N.W.2d 670 (1984). The economic reality test looks to the totality of the circumstances surrounding performed work. The relevant factors considered under the test have been summarized as: (1) control of a worker's duties, (2) payment of wages, (3) right to hire, fire and discipline, and (4) performance of the duties as an integral part of the employer's business toward the accomplishment of a common goal. Askew v Macomber, 398 Mich 212, 217-218; 247 NW2d 288 (1976); Andriacchi v Cleveland Cliffs Iron Co, 174 Mich App 600, 605; 436 NW2d 707 (1989), lv den 433 Mich 879 (1989); Parkkonen v Cleveland Cliffs Iron Co, 153 Mich App 204, 209; 395 NW2d 289 (1986), lv den 428 Mich 859 (1987); Lambard v Saga Food Service, Inc, 127 Mich App 262, 270; 338 NW2d 207 (1983), lv den 419 Mich 958 (1984). Under this test, all of the factors are viewed as a whole and no single factor is controlling. Farrell v Dearborn Mfg Co, 416 Mich 267, 276; 330 NW2d 397 (1982).

In the present case, after reviewing all the factors as a whole, we do not believe that...