McClure v. General Motors Corp., Fisher Body Division, Fleetwood Plant

• Citation: 289 N.W.2d 631,408 Mich. 191
• Decision Date: 20 March 1980
• Docket Number: 2,Nos. 1,Docket Nos. 59625,60750,s. 1
• Parties: Carol McCLURE, Administratrix of the Estate of Gary McClure, Deceased, and Carol McClure, Widow of Gary McClure, Deceased, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, FISHER BODY DIVISION, FLEETWOOD PLANT, Defendant- Appellee. Kimberly Ann KROLCZYK, Plaintiff-Appellant, v. WOLVERINE MOVING & STORAGE COMPANY and Transportation Company, Defendant- Appellee. Calendar408 Mich. 191, 289 N.W.2d 631
• Court: Supreme Court of Michigan

Page 631

289 N.W.2d 631

Carol McCLURE, Administratrix of the Estate of Gary McClure,

Deceased, and Carol McClure, Widow of Gary

McClure, Deceased, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, FISHER BODY DIVISION, FLEETWOOD

PLANT, Defendant- Appellee.

Kimberly Ann KROLCZYK, Plaintiff-Appellant, v. WOLVERINE MOVING & STORAGE COMPANY and Transportation

Company, Defendant- Appellee.

Docket Nos. 59625, 60750.

Calendar Nos. 1, 2.

408 Mich. 191, 289 N.W.2d 631

Supreme Court of Michigan.

Argued Dec. 5, 1978.

Decided March 13, 1978.

Decided March 20, 1980.

Michael V. Marston, Marston & Marston, P. C., Detroit, for plaintiff-appellant.

Willard W. Wallace, Francis S. Jaworski, Detroit, A. Ronald Sirna, Jr., Flint, Vandeveer, Garzia, Tonkin, Kerr & Heaphy, P. C., Detroit, for defendants-appellees; Otis M. Smith, Gen. Counsel, Detroit, William J. Heaphy, Holland, of counsel.

RYAN, Justice.

We are confronted with the same issue in these cases which divided us in McClure v. General Motors Corp., 402 Mich. 392, 262 N.W.2d 829 (1978), viz.: whether in the circumstances extant in each case, auto accident injuries ¹ suffered by workers off the premises where their work was to be performed, and during a lunchtime break, are compensable under the Worker's Disability Compensation Act ² as occurring out of and in the course of their employment.

The facts in both cases are accurately set forth in the opinions of our colleagues and need no restatement here.

Following the earlier McClure opinion, three of our brothers, with citation to Howard v. Detroit, 377 Mich. 102, 139 N.W.2d 677 (1966), begin with the finding of fact that it was a "circumstance" of plaintiffs' respective employments that they "were where they were when the injuries befell them". From that premise it is further concluded that lunchtime activities are also a "circumstance" of one's employment and "incidental to the employment", and that a fortiori injuries suffered during those activities are compensable as arising out of and in the course of that employment, regardless of whether the injury occurs on or off the premises where the work is to be done. ³

We cannot subscribe to that combination of appellate fact-finding and reasoning.

Our brothers, writing for reversal of the Worker's Compensation Appeal Board decision and reaffirmance of McClure I, would add this case to a line of recent decisions in which this Court has expanded and broadened the sweep of workers' compensation coverage by judicial decision. ⁴

To follow that course here would see this Court effect more worker compensation law "reform" of its own, unchecked by burdensome legislative committee hearings, union and management testimonial expertise, cost analyses, consideration of the effect upon related social legislation and the risk of rejection following bicameral debate or of executive veto.

We decline to continue the ongoing dilution of the legislative requirement that, as a condition of compensability, an employee's injury must be suffered "out of and in the course of the employment" by first equating "circumstance of employment" with "out of and in the course of the employment", and finally substituting the newly created judicial standard for the longstanding legislative norm. We cannot agree with our colleagues that:

"The significant inquiry in the instant cases is not whether the employees were injured while carrying out duties absolutely required by their employment contracts, but whether the injuries occurred as a circumstance of the employment relationship."

We are of the view, of course, that neither of the stated alternatives is the "significant inquiry"; that the significant inquiry is whether the injuries arose "out of and in the course of the employment".

By this case, the Court is asked to extend the scope of workers' compensation coverage in three inter-related ways:

1. To that time segment of the worker's day historically and intentionally allocated to the employee for an interruption of and withdrawal from the service of the employer, traditionally understood to be mealtime,

2. To any activity whether performed "out of and in the course of his employment", or not, in which the employee may be engaged during that period, and

3. To any place in which the employee may be during that period.

Apparently unwilling to declare this requested extension of workers' compensation coverage to be the new law it is, three of our brothers claim merely to be following the lead of Howard v. Detroit, supra, stating that they "are still convinced of the soundness of (its) rationale".

In Howard, a municipal bus driver was required on the day in question to work a split shift. He drove his bus from 7:05 a m. until 8:45 a. m., and was scheduled to drive again from 1:25 p. m. to 7:54 p. m. During the five-hour interval for which he was paid his hourly wages, and as a consequence of which he was paid an overtime rate at the end of his day, the driver left the terminal, conducted some personal business, went home for lunch and, while returning to the terminal in his car, was injured in an auto accident. With heavy reliance upon the earlier case of Bisdom v. Kerbrat, 251 Mich. 316, 232 N.W. 408 (1930), a divided court reversed an appeal board denial of benefits, stating:

"In (Bisdom v. Kerbrat ), plaintiff was en route to his dinner, rather than returning thereafter, but the special circumstance was created by a specific requirement of his employment on that day. It resulted from a direct order from his employer and had no application to any other day. The essential point abides. The circumstance was a deviation from his regular normal working schedule. It was for his employer's benefit and was an incident of his contract of employment. Thus it was that a circumstance of his employment placed him where he was at the time of his accidental injury. So too, it was a circumstance of his employment that placed plaintiff in this case where he was when he was accidentally injured.

"In this case, also, plaintiff had not finished his day's work. We agree with the dissenting opinion (of the WCAB) that the facts presented in Bisdom are sufficiently analogous to warrant its application here." (Emphasis added.)

Bisdom and Howard, properly read, are cases standing for the proposition that when on a given day an employee, in obedience to the employer's direction to deviate from "the regular normal working schedule" and to enter upon an interrupted and irregular schedule, including a mandatory period of "swing run" inactivity, is injured, his injuries are suffered "out of and in the course of the employment".

The significance of the Howard court's statement that "it was a circumstance of his employment that placed plaintiff in this case where he was when he was accidentally injured" is in the context of employer-ordered departure from a normal work schedule of uninterrupted service.

The facts in Bisdom and Howard, which the Howard court said were "sufficiently analogous to warrant" the same result, are totally distinguishable from those in McClure and Krolczyk. In neither of the cases before us did the lunchtime activities involve an employer-directed deviation from the worker's regular normal working schedules.

Ignoring the difference, our colleagues lift the "circumstance of his employment" language from the "deviation from his regular normal working schedule" context of Howard and Bisdom and apply it to the off-premises injuries suffered by Mr. McClure and Ms. Krolczyk during their regularly scheduled normal workday lunch hour break to create a "circumstance" by which there is entitlement to benefits.

We reject that approach because it ignores the legislative requirement that, to be compensable, the injury must occur "out of and in the course of" the worker's employment.

It may indeed have been a "circumstance" of Mr. McClure's employment that he was in the middle of Fort Street, and of Ms. Krolczyk's that she was driving a car a half-mile away from work during the lunch period, but the Legislature has not yet seen fit to provide compensation for injuries suffered by workers during off-premises lunch-hour activity of a purely personal character. Perhaps it ought to have done so long ago but it has not, and we are not constitutionally free to do so in its place. Like it or not, the test for entitlement to compensation benefits remains "out of and in the course of" employment.

The rationale employed by the New Jersey court in Wyatt v. Metropolitan Maintenance Co., 74 N.J. 167, 376 A.2d 1222 (1977), and Hornyak v. The Great Atlantic & Pacific Tea Co., 63 N.J. 99, 305 A.2d 65 (1973), upon which our colleagues rely, is even less persuasive than what we perceive to be the misapplication of the "circumstance of employment" language of Howard. We share the concern expressed by Professor Larson ⁵ in his critique of the Hornyak case and adopt his argument as having signal applicability to today's decision:

"Let us assume the case of an ordinary office worker in a downtown Newark office building, with an hour off for lunch, during normal daytime work. The worker sets out on foot, and a half-hour later is found somewhere in Newark, beaten and robbed in an amusement arcade, a pool room, a porno movie, or a massage parlor. Has the New Jersey court prepared itself now for the prospect of explaining how this was 'reasonably incidental' to the employment? If not, what stands between it and the necessity of calling these cases compensable? Will it resort to a case-by-case attempt to label some such excursions deviations? On what principle? In its opinion it quotes a Hawaii case, Dependents of Pacheco v. Orchids of Hawaii (54 Hawaii (Haw.) 66, 502 P.2d 1399 (1972)). 'An employer may derive substantial benefits from an employee who is allowed time away from the job to accomplish pressing personal business.' Thus, if an employee on the way to lunch deviated a block to buy a record, the New...