Jordan v. Solventol Chemical Products, Inc., AG-TEC

• Decision Date: 03 March 1977
• Docket Number: AG-TEC,Docket No. 28687
• Citation: 74 Mich.App. 113,253 N.W.2d 676
• Parties: Melvin JORDAN and Mary Jordan, Plaintiffs, v. SOLVENTOL CHEMICAL PRODUCTS, INC., a Michigan Corporation, Defendant and Third-Party Plaintiff-Appellant, v.CHEMICAL COMPANY, Third-Party Defendant, and Crown Packing Company, Third-Party Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 676

253 N.W.2d 676

74 Mich.App. 113

Melvin JORDAN and Mary Jordan, Plaintiffs, v. SOLVENTOL CHEMICAL PRODUCTS, INC., a Michigan Corporation, Defendant and Third-Party Plaintiff-Appellant, v. AG-TEC CHEMICAL COMPANY, Third-Party Defendant, and Crown Packing Company, Third-Party Defendant-Appellee.

Docket No. 28687.

Court of Appeals of Michigan.

March 3, 1977.

Released for Publication June 2, 1977.

E. R. Whinham, Jr., Detroit, for Solventol.

Stuart H. Brickner, West Bloomfield, for Jordans.

Sommers, Schwartz, Silver, Schwartz & Tyler by David M. Tyler, Detroit, for Crown.

Alvin L. Levine, Pontiac, for Ag-Tec.

Before BRONSON, P. J., and BASHARA and HORN, ^* JJ.

BASHARA, Judge.

The plaintiff, Melvin Jordan, was injured at work while using a drain cleaner manufactured by the appellant. He and his wife brought an action against the appellant alleging negligence, breach of warranty, and improper labeling of a hazardous product.

The appellant brought a third-party action, GCR 1963, 204, against the appellee, the employer of the plaintiff, for contribution and indemnification. The appellee moved for summary judgment on the third-party complaint for failure to state a claim upon which relief could be granted, GCR 1963, 117.2(1), and the motion was granted. Appellant seeks review.

Our first consideration is whether the exclusive remedy provision of the Workmen's Compensation Act, M.C.L.A. § 418.131; M.S.A. § 17.237(131) ¹, as amended by 1972 P.A. 285, § 1, removed the bar against a third-party impleader action for contribution against an employer, which was previously recognized to exist in Husted v. Consumers Power Co., 376 Mich. 41, 135 N.W.2d 370 (1965).

At the time Husted was decided the exclusive remedy provision of the Workmen's Compensation Act provided:

"Where the conditions of liability under this act exist, the right to the recovery of compensation benefits as herein provided, shall be the exclusive remedy against the employer." (Emphasis supplied.) 1943 P.A. 245, § 4.

It appeared to the Supreme Court that the intent of the Legislature, by this provision and its predecessors, was to grant an employer "outright and absolute immunity from liability (except as provided in the act) stemming from each compensable injury". Husted v. Consumers Power Co., supra, at 53, 135 N.W.2d at 375. Consequently, the Court held that this section destroyed a third party's claim for contribution. Husted v. Consumers Power Co., supra, at 54, 135 N.W.2d 370.

By 1969 P.A. 317, § 898 the Legislature repealed 1943 P.A. 245, § 4, and enacted a new Workmen's Compensation Act, Ray v. Transamerica Insurance Co., 46 Mich.App. 647, 652, 208 N.W.2d 610 (1973), which adopted substantially the same exclusive remedy provision. 1969 P.A. 317, § 131, M.C.L.A. § 418.131; M.S.A. § 17.237(131) ². Subsequently, the exclusive remedy provision was amended by 1972 P.A. 285, § 1, which states:

"The right to the recovery of benefits as provided in this act shall be the employee's exclusive remedy against the employer. As used in this section and section 827 'employee' includes the person injured, his personal representatives and any other person to whom a claim accrues by reason of the injury to or death of the employee, and 'employer' includes his insurer, a service agent to a self-insured employer, and the accident fund insofar as they furnish, or fail to furnish, safety inspections or safety advisory services incident to providing workmen's compensation insurance or incident to a self-insured employer's liability servicing contract." (Emphasis supplied.)

The appellant asserts that since it is not an employee, it is not barred from seeking contribution.

We need not answer that contention. The decision in Husted v. Consumers Power Co., supra, 376 Mich. at 54-56, 135 N.W.2d 370, not only premised its decision on 1943 P.A. 245, § 4, but also concluded that the clear weight of authority prohibited contribution where there was no common liability between the third party and the employer.

The substantive rights and liabilities of all present parties are determined according to the law at the time the plaintiffs' claims accrued on May 3, 1973. Husted v. Consumers Power Co., supra, at 47, 135 N.W.2d 370. A right to contribution between joint tortfeasors existed at the time this action accrued pursuant to 1961 P.A. 236, § 2925(1). ³ Parties are not joint tortfeasors if their acts are different and separate, and neither party has control or influence over the acts of others. Geib v. Slater, 320 Mich. 316, 320, 31 N.W.2d 65 (1948). It is apparent that the appellant and appellee are not joint tortfeasors for the purposes of contribution under 1961 P.A. 236, § 2925(1).

In Moyses v. Spartan Asphalt Paving Co., 383 Mich. 314, 334, 174 N.W.2d 797 (1970), the Supreme Court overruled what was left of Michigan's common-law bar to contribution between nonintentional wrongdoers. To be entitled to contribution under these rules, it is required that the wrongdoers owe a "common liability" to the plaintiff. Caldwell v. Fox, 394 Mich. 401, 420, 231 N.W.2d 46 (1975); Moyses v. Spartan Asphalt Paving Co., supra, 383 Mich. at 330, 174 N.W.2d 797.

The Court in Husted found the decision of Baltimore Transit Co. v. State, 183 Md. 674, 679, 39 A.2d 858, 860 (1944), most valuable to its analysis. That case discussed common liability as follows:

"We think these provisions make it clear that the Act is only applicable to a situation where there is a common liability to an injured person in tort. Such liability may be joint or several, but there can be no contribution where the injured person has no right of action against the third party defendant. The right of contribution is a derivative right and not a new cause of action."

In the case at bar the appellee's liability is purely statutory pursuant to the Workmen's Compensation Act, and is not dependent upon culpability. The appellant's liability, on the other hand, is grounded upon plaintiffs' allegations of negligence, breach of warranty, and improper labeling of a hazardous product. There is no common liability. See 18 Am.Jur.2d, Contribution, § 48 pp. 69-70. ⁴

Moreover, the appellant's right of contribution is derivative of the plaintiffs' rights. Since the plaintiffs cannot sue the appellant, neither can the...