Maki v. Copper Range Co.

• Decision Date: 24 January 1983
• Docket Number: 60662,Docket Nos. 60661
• Citation: 121 Mich.App. 518,328 N.W.2d 430
• Parties: Roger M. MAKI, Plaintiff-Appellant, v. COPPER RANGE COMPANY, Defendant-Appellee. Carl W. SODERSTROM and Phyllis J. Soderstrom, Plaintiffs-Appellants, v. COPPER RANGE COMPANY, Defendant-Appellee. 121 Mich.App. 518, 328 N.W.2d 430
• Court: Court of Appeal of Michigan — District of US

Page 430

328 N.W.2d 430

Roger M. MAKI, Plaintiff-Appellant, v. COPPER RANGE COMPANY, Defendant-Appellee.

Carl W. SODERSTROM and Phyllis J. Soderstrom, Plaintiffs-Appellants, v. COPPER RANGE COMPANY, Defendant-Appellee.

Docket Nos. 60661, 60662.

121 Mich.App. 518, 328 N.W.2d 430

Court of Appeals of Michigan.

Submitted Oct. 13, 1982.

Decided Nov. 18, 1982.

Released for Publication Jan. 24, 1983.

[121 MICHAPP 520] Wisti & Jaaskelainen, P.C. by Michael E. Makinen, Hancock, for plaintiffs-appellants.

Weis, Cossi, Geissler & Dean, P.C. by Timothy M. Dean, Ironwood, for defendant-appellee.

Before WALSH, P.J., and ALLEN and CAVANAGH, JJ.

PER CURIAM.

Plaintiffs appeal as of right from [121 MICHAPP 521] orders granting summary judgments to defendant. These cases, which are two of three causes filed against defendant as the parent corporation of White Pine Copper Company, were consolidated by this Court for hearing and decision. The third case is Savela v. Westinghouse Electric Corp. (Docket No. 61057, decided November 30, 1982 [unreported] ).

Plaintiffs Roger Maki and Carl Soderstrom were injured during the course of their employment with White Pine Copper Company (White Pine). Plaintiff Maki fell from a ladder January 21, 1977, breaking both legs. Carl Soderstrom also fell from a ladder in an unrelated incident August 18, 1977, and has suffered dizziness, double vision, nausea, headaches and a hernia as a result of the fall. Plaintiffs Roger Maki and Carl Soderstrom received workers' compensation benefits from defendant Copper Range Company (Copper Range), in its capacity of insurer for White Pine.

Each plaintiff sued Copper Range, as the parent corporation of White Pine, in tort for personal injuries. Plaintiffs alleged that Copper Range, by failing to implement safety programs and by failing to insist upon reasonable safety precautions for its employees, was guilty of negligence. After the taking of depositions, Copper Range moved for summary judgment in both actions pursuant to GCR 1963, 117.2(1) and (3), arguing (1) Copper Range was not liable for torts of its wholly-owned subsidiary, and (2) if it was liable for its subsidiary's tort, plaintiffs' actions were barred by the exclusive remedy provisions of the workers' compensation act 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).

Upon stipulation of the parties involved, Copper Range's motions for summary judgment against [121 MICHAPP 522] plaintiffs Maki and the Soderstroms, and against Savela in No. 61057, were resolved in a single hearing. The parties further stipulated that the depositions taken in all three cases could be reviewed by the trial court in ruling on the motions. On October 5, 1981, the court issued its opinion and on October 17, 1981, orders were entered granting summary judgments to Copper Range, apparently based on the absence of a genuine issue of material fact, GCR 1963, 117.2(3). The court found that the pleadings and depositions failed to indicate any type of control "as would fit within the definition of retained control in the Signs v. Detroit Edison case [93 Mich.App. 626, 287 N.W.2d 292 (1979) ]". The court also stated, that, were it to find that defendant retained control of White Pine, it would be constrained to rule that defendant would be in a position of an employer and, therefore, immune under the provisions of Michigan's workers' compensation law.

A motion for summary judgment grounded on the absence of a genuine issue as to any material fact is designed to test whether there is factual support for a claim. Crowther v. Ross Chemical & Mfg. Co., 42 Mich.App. 426, 202 N.W.2d 577 (1972). In passing on a motion under this subrule, the court must consider the pleadings, affidavits, depositions, admissions and other documentary evidence then available to it. Rizzo v. Kretschmer, 389 Mich. 363, 207 N.W.2d 316 (1973). Before judgment may be granted, the court must be satisfied that it is impossible for the claim asserted to be supported by evidence at trial. The motion has the limited function of determining whether a material issue of fact exists. Partrich v. Muscat, 84 Mich.App. 724, 270 N.W.2d 506 (1978). In reviewing the record, liberality should be exercised in finding a genuine [121 MICHAPP 523] issue of material fact, and the benefit of any reasonable doubt should be given to the party opposing summary judgment. Rizzo, supra, 389 Mich. at p. 372, 207 N.W.2d 316.

Throughout the proceedings, plaintiffs have predicated liability on the "retained control" doctrine as developed in Funk v. General Motors Corp., 392 Mich. 91, 220 N.W.2d 641 (1974), and Signs v. The Detroit Edison Co., 93 Mich.App. 626, 287 N.W.2d 292 (1979). Plaintiffs argue that Copper Range owes a duty of due care to the employees of White Pine because it has retained control over on-the-job safety and working conditions of the employees. As evidence in support of its allegation of retained control, plaintiffs cite the exchange of personnel between Copper Range and White Pine, the presence of officers and top management employees who hold positions in both companies, disbursements which have been made by Copper Range for White Pine, Copper Range's use of White Pine's offices and property, and Copper Range's monitoring of the performance of departments of White Pine.

We believe that the trial court correctly found that the retained control doctrine is inapplicable to the facts of the present case. Retained control is a term used by Michigan courts to describe conduct which may subject a landowner or general contractor to liability for injuries to employees of an independent contractor or subcontractor on a construction project.

"Ordinarily a landowner is not responsible for injuries caused by a carefully selected contractor to whom he has delegated the task of erecting a structure. Most every rule has its exceptions. This rule is distinguished by the variety of its exceptions.

"An owner is responsible if he does not truly delegate--if he retains 'control' of the work--or if,...