LaDuke v. Ziebart Corp., Docket No. 156036

• Decision Date: 23 May 1995
• Docket Number: Docket No. 156036
• Citation: 211 Mich.App. 169,535 N.W.2d 201
• Parties: Robert LaDUKE, Personal Representative of the Estate of Michael LaDuke, deceased, Plaintiff-Appellee, v. ZIEBART CORPORATION, a/k/a Ziebart International Corporation a/k/a Ziebart, Defendant-Appellant, and Robert Anthony Zielin, Defendant.
• Court: Court of Appeal of Michigan — District of US

Page 201

535 N.W.2d 201

211 Mich.App. 169

Robert LaDUKE, Personal Representative of the Estate of Michael LaDuke, deceased, Plaintiff-Appellee, v. ZIEBART CORPORATION, a/k/a Ziebart International Corporation a/k/a Ziebart, Defendant-Appellant, and Robert Anthony Zielin, Defendant.

Docket No. 156036.

Court of Appeals of Michigan.

Submitted Jan. 18, 1995, at Detroit.

Decided April 6, 1995.

Approved for Publication

May 23, 1995, at 9:30 a.m.

Released for Publication Aug. 3, 1995.

Paul B. Molenda, P.C. by Paul B. Molenda, Clinton Tp. (John A. Lydick, of counsel), Detroit, for plaintiff.

May, Simpson & Strote, P.C. by John A. Forrest, Bloomfield Hills, for Ziebart Corp.

Before CORRIGAN, P.J., and O'CONNELL and ALLEN, ^* JJ.

PER CURIAM.

Defendant Ziebart Corporation appeals as of right the denial of its motions for summary disposition pursuant to MCR 2.116(C)(8) and (10), a directed verdict, judgment notwithstanding the verdict (JNOV), and a new trial. We reverse.

Plaintiff's decedent, Michael LaDuke, was a branch operations manager of various Ziebart locations in Michigan, Illinois, and Missouri, including the Westland, Michigan, branch, where individual defendant Robert Zielin worked. In April 1989, Zielin managed the Westland branch and LaDuke was his immediate supervisor. At a meeting held on Friday, April 21, 1989, LaDuke and two other company officials decided to terminate Zielin's employment the following Monday because of his poor work performance. Apparently, Zielin received word of his fate and asked to meet with LaDuke on Saturday, April 22, 1989, at the Westland store. LaDuke then spoke with Ziebart management. They agreed to terminate Zielin on Saturday instead of Monday. LaDuke went to the store to meet Zielin. Shortly after LaDuke fired Zielin, Zielin shot and killed LaDuke.

Plaintiff, the personal representative of LaDuke's estate, filed a wrongful death action against codefendants Ziebart and Zielin. ¹ Ziebart moved for summary disposition on the basis that the exclusive remedy provision of the Worker's Disability Compensation Act (WDCA), M.C.L. § 418.131; M.S.A. § 17.237(131), barred plaintiff's claim. The trial court ruled that plaintiff's complaint stated a claim that fell within the intentional tort exception to § 131 of the WDCA and denied Ziebart's motion. The trial court later denied Ziebart's motion for a directed verdict. After the jury rendered its verdict for plaintiff, Ziebart moved for JNOV or a new trial. The trial court again denied the motions. It held that Zielin's knowledge of his own propensity for violence could be imputed to Ziebart. Thus, Ziebart's actions were held to constitute an intentional tort under the WDCA.

On appeal, Ziebart argues that the trial court erred in denying its various motions as a matter of law. We agree.

Ziebart's claims of error turn on whether this case falls within the intentional tort exception to the exclusive remedy provision of the WDCA. Under M.C.L. § 418.131; M.S.A. § 17.237(131), worker's compensation is an employee's exclusive remedy against an employer, unless the employee suffers an injury as a result of an intentional tort. Benson v. Callahan Mining Corp., 191 Mich.App. 443, 446, 479 N.W.2d 12 (1991). M.C.L. § 418.131; M.S.A. § 17.237(131) provides in relevant part:

An intentional tort shall exist only when an employee is injured as a result of a deliberate act of the employer and the employer specifically intended an injury. An employer shall be deemed to have intended to injure if the employer had actual knowledge that an injury was certain to occur and willfully disregarded that knowledge. The issue of whether an act was an intentional tort shall be a question of law for the court.

In his complaint, plaintiff alleged that Ziebart intentionally instructed LaDuke to fire Zielin with knowledge of Zielin's history of violence. Ziebart contended that plaintiff could not show that Ziebart had actual knowledge that LaDuke would suffer certain injury when he terminated Zielin. In denying Ziebart's motion for summary disposition, the court acknowledged that Ziebart could not have known that Zielin would harm LaDuke, but nevertheless concluded that Ziebart committed an intentional tort under the WDCA. The court reasoned that the WDCA does not require plaintiff to show that Ziebart had actual knowledge that plaintiff would suffer certain injury. We disagree.

The trial court erred as a matter of law in determining that Ziebart committed an intentional tort under § 131 of the WDCA. The intentional tort exception requires a plaintiff to show that the defendant had actual knowledge that the plaintiff would suffer a specific injury and that the defendant disregarded that knowledge. Agee v. Ford Motor Co., 208 Mich.App. 363, 528 N.W.2d 768 (1995); Smith v. Mirror Lite Co., 196 Mich.App. 190, 192-193, 492 N.W.2d 744 (1992). It is not enough to show that a risk of injury existed or...