McQueer v. Perfect Fence Co., No. 153829

• Court: Supreme Court of Michigan
• Writing for the Court: Zahra, J.
• Citation: 502 Mich. 276,917 N.W.2d 584
• Parties: David J. MCQUEER, Plaintiff-Appellee, v. PERFECT FENCE COMPANY, Defendant-Appellant.
• Docket Number: No. 153829
• Decision Date: 10 July 2018

502 Mich. 276
917 N.W.2d 584

David J. MCQUEER, Plaintiff-Appellee,
v.
PERFECT FENCE COMPANY, Defendant-Appellant.

No. 153829

Supreme Court of Michigan.

Argued April 12, 2018
Decided July 10, 2018

917 N.W.2d 586

Mark Granzotto, PC (by Mark Granzotto ), Royal Oak, and Parsons Law Firm PLC (by Grant W. Parsons ), Traverse City, for plaintiff.

Garan Lucow Miller, PC (by John E. McSorley, David M. Shafer, Detroit, and Christian C. Huffman, Ann Arbor) for defendant.

Conklin Benham, PC (by Martin L. Critchell ), Bingham Farms, for amici curiae, the Inland Press Company.

Conklin Benham, PC (by Martin L. Critchell ), Bingham Farms, for amici curiae, the Michigan Self-Insurers’ Association.

BEFORE THE ENTIRE BENCH

Zahra, J.

502 Mich. 281

Plaintiff, David J. McQueer, was injured in the scope of his employment and is now receiving benefits pursuant to the Worker’s Disability Compensation Act (WDCA).¹ Plaintiff brought this action against Perfect Fence Company, his employer, to recover tort damages. Plaintiff maintains, among other things, that defendant is liable under MCL 418.171(4) because defendant used "coercion, intimidation, deceit, or other means to encourage [plaintiff] who would otherwise be considered [an] employee[ ] within the meaning of this act to pose as [a] contractor[ ] for the purpose of evading" liability under §§ 171 or 611 of the WDCA. The trial court dismissed plaintiff’s action, concluding that MCL 418.171(4) was not applicable to plaintiff’s claims. The Court of Appeals reversed, concluding that MCL 418.171(4) was applicable and that plaintiff had established a genuine question of material fact under that provision. We hold that MCL 418.171 does not apply in this case. In limited circumstances, § 171(4) provides a civil remedy to an employee of a contractor engaged by a principal. Because plaintiff is not the employee of a contractor engaged by defendant, he has no cause of action under MCL 418.171.

For this reason, as more fully explained in this opinion, we reverse the Court of Appeals judgment as to whether MCL 418.171 applies.²

917 N.W.2d 587

I. FACTS AND PROCEEDINGS

Plaintiff David McQueer worked intermittently as a laborer for defendant Perfect Fence Company.³ On

502 Mich. 282

January 14, 2014, plaintiff was injured on the job when he was struck in the head by the bucket of a Bobcat front-loader. Plaintiff was installing fence posts with a coworker and Mike Peterson.⁴ The proper method for installing fence posts is to use an auger or hand-digger to dig post holes to a depth of anywhere between 3 and 6 feet. Despite knowing this, Peterson decided to use the Bobcat bucket to hammer the fence posts into the frozen ground. Peterson and plaintiff had previously used the Bobcat bucket to hammer fence posts into the ground without injury.

Sometime before this accident, Bob Krumm, part-owner of defendant, learned that Peterson had used the Bobcat to hammer fence posts. Krumm became upset over this misuse of the Bobcat and informed Peterson and other employees that this extremely dangerous misuse of the Bobcat must cease immediately. During pretrial discovery, Krumm offered deposition testimony that when someone misuses a Bobcat to install fence posts in this manner he or she is "guaranteed to get hurt." Although plaintiff knew that Krumm did not want the Bobcat used to install fence posts, plaintiff felt compelled to "go along" with Peterson’s actions, presumably because he was a senior employee to plaintiff. At the time of the Bobcat accident, plaintiff sat underneath the bucket, was not wearing a hard hat, and was talking on his cell phone. Plaintiff explained that Peterson had "miscalculated" in lowering the bucket, resulting in the fence post going farther into the ground than anticipated. According

502 Mich. 283

to plaintiff, the fence post hit a water pocket, which caused the post to go into the ground deeper than anticipated, causing the bucket to lower with some degree of force onto his head. Plaintiff testified in a deposition that Peterson did not intentionally injure him with the Bobcat. Plaintiff further stated in the deposition that he did not foresee this injury occurring through the misuse of the Bobcat.

The testimony diverges regarding what happened after the accident. According to plaintiff, as he was being transported to the hospital, Peterson told him not to tell anyone at the hospital that he was injured while working for defendant because he was "not on the books" and there were no workers’ compensation benefits for him. After his release from the hospital, plaintiff claims that Krumm and defendant’s accountant visited him at home and told him that he was not covered under defendant’s workers’ compensation plan. Krumm and defendant’s accountant denied any such conversation. Regardless, it is undisputed that defendant had workers’ compensation insurance that covered plaintiff’s injuries. And, in fact, plaintiff is receiving ongoing workers’ compensation benefits through defendant’s workers’ compensation insurer.

Plaintiff brought suit against defendant, alleging multiple claims based on negligence. Defendant moved for summary disposition on the ground that the WDCA’s

917 N.W.2d 588

exclusive-remedy provision barred plaintiff’s civil action. Plaintiff responded in opposition that his civil action was not barred under the WDCA because defendant had violated MCL 418.611 by failing to procure workers’ compensation coverage for him and had violated MCL 418.171 by encouraging him to pose as a nonemployee. Plaintiff additionally moved to amend his complaint to add claims of intentional tort and

502 Mich. 284

breach of an employment contract. Plaintiff argued that the evidence raised a question of fact about whether defendant intended to injure him in a way that brought plaintiff’s claim within the scope of the intentional-tort exception to the exclusive-remedy provision of the WDCA.

The trial court granted defendant’s motion for summary disposition under MCR 2.116(C)(10), concluding that defendant had not violated MCL 418.611 because defendant had provided workers’ compensation coverage. The court also ruled that MCL 418.171 was not applicable to plaintiff’s claims. The court denied plaintiff’s motion to amend his complaint, concluding that amendment would be futile because the undisputed facts did not demonstrate that defendant intended to injure plaintiff.⁵ Plaintiff appealed.

The Court of Appeals reversed the trial court’s grant of summary disposition and denial of plaintiff’s motion to amend his complaint.⁶ The panel agreed with the trial court that defendant had not violated MCL 418.611.⁷ The panel, however, concluded that plaintiff established a question of fact regarding whether defendant under MCL 418.171(4) used " ‘coercion, intimidation, deceit, or other means to encourage persons who

502 Mich. 285

would otherwise be considered employees within the meaning of this act to pose as contractors for the purpose of evading’ liability under sections 171 or 611 of the WDCA."⁸ The panel also concluded that plaintiff had presented sufficient evidence to create a question of fact regarding whether an intentional tort had occurred under the judicially created "continuously operative dangerous condition" exception to the WDCA’s exclusive-remedy provision.⁹ Thus, the panel determined that the trial court abused its discretion by not allowing plaintiff to amend his complaint.¹⁰

Defendant sought leave to appeal in this Court. We directed the Clerk of this Court to schedule oral argument on whether to grant the application or take other action, ordering the parties to address the following issues:

(1) whether the statutory employer provision of MCL 418.171 is applicable to the plaintiff’s claims; and (2) if so, whether the plaintiff has established a genuine issue of material fact sufficient to avoid summary disposition; and (3) whether the Court of Appeals erred by

917 N.W.2d 589

reversing the Grand Traverse Circuit Court’s order denying, on the basis of futility, the plaintiff’s motion to amend his complaint to add an intentional tort claim.^{[11 ]}

II. STANDARD OF REVIEW

We review de novo questions of law in a workers’ compensation case.¹² Questions of statutory interpretation

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are likewise reviewed de novo.¹³ We also review de novo a trial court’s grant of summary disposition under MCR 2.116(C)(10).¹⁴

III. ANALYSIS

The dispositive question before this Court is whether the statutory-employer provision under MCL 418.171 is applicable to the facts developed in this case.¹⁵ All matters of statutory interpretation begin with an examination of the language of the statute.¹⁶ "The primary rule of statutory construction is...