Kuhlgert v. Mich. State Univ., s. 332442
| Decision Date | 21 May 2019 |
| Docket Number | No. 344533,338363,Nos. 332442,s. 332442,344533 |
| Citation | 328 Mich.App. 357,937 N.W.2d 716 |
| Parties | Sebastian KUHLGERT, Conservator of Elisabeth Ostendorf, Plaintiff-Appellee, v. MICHIGAN STATE UNIVERSITY, and Board of Trustees of Michigan State University, Defendants, and United Educators, Intervening Defendant-Appellant. Elisabeth Ostendorf, Plaintiff-Appellee, and United Educators, Intervening Plaintiff-Appellant, and State Farm Mutual Automobile Insurance Company, Intervening Plaintiff, v. Michigan State University, Defendant-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
Collins Einhorn Farrell PC, Southfield (by Michael J. Cook, Deborah A. Hebert, and Richard A. Joslin ) for United Educators in Docket No. 332442.
Fraser Trebilcock Davis & Dunlap, PC, Lansing (by Graham K. Crabtree ), Kitch Drutchas Wagner Valitutti & Sherbrook, Detroit (by Christina A. Ginter ), and Dawda Mann Mulcahy & Sadler PLC, Bloomfield Hills (by Adam Kutinsky ) for Michigan State University and the Board of Trustees of Michigan State University in Docket No. 332442.
Sinas, Dramis, Larkin, Graves & Waldman, PC, Lansing (by George T. Sinas, Michael E. Larkin, and Joel T. Finnell ) for Elisabeth Ostendorf.
Collins Einhorn Farrell PC, Southfield (by Michael J. Cook, Deborah A. Hebert, and Richard A. Joslin ) and Bursch Law PLLC, Caledonia (by John J. Bursch ) for United Educators in Docket No. 338363.
Collins Einhorn Farrell PC, Southfield (by Deborah A. Hebert and Richard A. Joslin ) and Bursch Law PLLC (by John J. Bursch ) for United Educators in Docket No. 344533.
Before: Swartzle, P.J., and Cavanagh and Cameron, JJ.
Cameron, J. Elisabeth Ostendorf, a German national, suffered injuries when a truck owned by Michigan State University (MSU) struck her as she was walking on campus; these consolidated appeals all concern whether the injuries triggered the exclusive-remedy provision of the Worker’s Disability Compensation Act (WDCA), MCL 418.101 et seq. See MCL 418.131(1) (). If not, then MSU’s no-fault insurer, State Farm Mutual Automobile Insurance Company, and its excess-liability insurer, United Educators (UE), are responsible for providing insurance coverage for her injuries. We affirm.
Ostendorf was a postdoctoral research associate at MSU and lead scientist on a project funded through a grant from the Advanced Research Projects Agency for the Department of Energy. She was in the United States on a J-1 visa as a participant in an exchange visitor program authorized under the Mutual Educational and Cultural Exchange Act (MECEA), 22 USC 2451 et seq. The goal of Ostendorf’s project was to screen plants for increased photosynthetic capacity. She began her work in 2012 for a one-year term, with the anticipation that the project could be renewed annually and last for three or more years. She was injured during her third term.
In October 2014, Ostendorf left the Food and Safety Toxicology Building where she worked and walked toward her vehicle, which was parked in a lot located elsewhere on the MSU campus. She had walked approximately 900 feet when, while completing a text message, she emerged from a sidewalk abutting a driveway at the same time as Cole Gibson was backing up his truck—an MSU vehicle—toward a loading dock. The truck struck Ostendorf, and she suffered severe injuries.
This case involves a lengthy, complicated procedural history. In March 2015, Ostendorf’s conservator, Sebastian Kuhlgert (plaintiff), commenced a negligence action in the Court of Claims against MSU and its Board of Trustees. Plaintiff did not file a claim for workers’ compensation benefits, and MSU did not report an injury to the workers’ compensation bureau. MSU had an excess-liability insurance policy through UE that did not provide coverage for any obligation for which MSU may have been held liable under any workers’ compensation law. Nearly a year after the complaint was filed, UE filed a motion to intervene in the action because it believed that MSU had failed to pursue the argument that plaintiff’s claims were barred by the exclusive-remedy provision in the WDCA. The Court of Claims held that the motion to intervene was untimely and that MSU had adequately represented UE’s interests by raising the exclusive-remedy provision in its affirmative defenses. The court further noted that the exclusive-remedy provision would not apply if, at the time of the impact, Ostendorf was not on the premises where her work was performed. We denied UE’s application for leave to appeal (Docket No. 332442), and UE filed an application for leave to appeal in the Michigan Supreme Court.
While the application for leave was pending in our Supreme Court, UE and State Farm each filed an Application for Mediation or Hearing-Petition to Intervene in a separate proceeding with the Workers’ Compensation Board of Magistrates. At issue in the separate proceeding was not the extent to which Ostendorf was engaged in her employment with MSU at the moment of impact, but rather whether she was precluded from workers’ compensation coverage because of an exemption from the definition of "employee" set forth in MCL 418.161(1)(b) for "[n]ationals of foreign countries employed pursuant to section 102(a)(1)[1 ] of the mutual educational and cultural exchange act of 1961 ...."
In November 2016, our Supreme Court remanded the Court of Claims case to this Court for consideration as on leave granted with instructions to address the exclusive-remedy provision of the WDCA and whether UE could intervene:
The Court of Appeals shall consider: (1) whether the plaintiff’s claims are barred by the exclusive remedy provision of the [WDCA], see MCL 418.131(1) ; Sewell v. Clearing Machine Corp. , 419 Mich. 56, 62, 347 N.W.2d 447 (1984) ; and if not, (2) whether the Court of Claims erred by denying [UE’s] motion to intervene. [ Kuhlgert v. Michigan State Univ. , 500 Mich. 890, 890, 886 N.W.2d 724 (2016).]
In February 2017, UE moved this Court to stay the appeal pending the outcome of the workers’ compensation proceedings. We granted UE’s request and agreed to hold the appeal in abeyance until the workers’ compensation magistrate issued a decision.
In the Workers’ Compensation Board of Magistrates proceeding, the magistrate examined the text and history of the pertinent legislation, along with the documents relating to Ostendorf’s status as a foreign national in the United States. However, before the magistrate issued its opinion, plaintiff sought relief from the Court of Claims, asking the Court of Claims to consider the issue that was currently before the magistrate—whether Ostendorf’s employment status itself exempted her from the definition of "employee" for purposes of the WDCA. UE requested that the Court of Claims decline to address the issue in deference to the workers’ compensation proceedings and again sought to intervene so that it could challenge Ostendorf’s status as being exempt from coverage under the WDCA should the court elect to decide that issue.
Before the Court of Claims could render a decision, the WDCA magistrate issued an opinion in which it concluded that Ostendorf "was a research scholar employed by MSU pursuant to ... the MECEA and therefore considered not to be an employee pursuant to MCL 418.161(1)(b)." In March 2017, UE filed a claim for review with the Michigan Compensation Appellate Commission (MCAC). In April 2017, the Court of Claims again denied UE’s motion to intervene. UE then filed an application for leave to appeal that decision in May 2017 (Docket No. 338363). After the appeal was filed, the Court of Claims issued another opinion and order holding that "[t]he errand that took Dr. Ostendorf to the accident site was purely personal and in no way related to her employment at MSU" and that Ostendorf "was employed by MSU under the United States J-1 Visa program and as such was not eligible for workers [sic] compensation." We granted leave to appeal, consolidated the appeals in Docket Nos. 332442 and 338363, and ultimately stayed the proceedings pending the outcome of the proceedings before the MCAC.2
The MCAC issued its opinion and order on June 6, 2018, noting the lack of factual disputes in the case and adopting in full the magistrate’s legal conclusion that "Ostendorf shall not be considered (an) employee [of Michigan State University] under the Worker’s Disability Compensation Act" because of her employment status under the MECEA. UE filed its application for leave to appeal in this Court on July 5, 2018 (Docket No. 344533). This Court granted leave and consolidated the appeal with those in Docket Nos. 332442 and 338363. Ostendorf v. Mich. State Univ. , unpublished order of the Court of Appeals, entered September 6, 2018 (Docket No. 344533).
Our Supreme Court has directed this Court to determine whether plaintiff’s claims are barred by the exclusive-remedy provision of the WDCA and, if not, whether the Court of Claims erred by denying UE’s motion to intervene.
UE argues that the Court of Claims erred in two ways when it concluded that compensation under the WDCA was not Ostendorf’s exclusive remedy for her injuries. First, UE argues that Ostendorf is not exempted as a foreign national under MCL 418.161(1)(b) of the WDCA. Second, UE argues that Ostendorf’s injuries occurred while in the course of her employment, and that therefore, workers’ compensation is her exclusive remedy.
UE first argues that ...
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