Moore v. Prestige Painting

• Decision Date: 08 December 2004
• Docket Number: Docket No. 249924.
• Citation: 264 Mich. App. 123,689 N.W.2d 758
• Parties: Scott R. MOORE, deceased, and Jessica Douglas, Plaintiffs-Appellants, v. PRESTIGE PAINTING and Construction Association of Michigan, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

689 N.W.2d 758

264 Mich. App. 123

Scott R. MOORE, deceased, and Jessica Douglas, Plaintiffs-Appellants, v. PRESTIGE PAINTING and Construction Association of Michigan, Defendants-Appellees.

Docket No. 249924.

Court of Appeals of Michigan.

Submitted October 6, 2004, at Detroit.

Decided October 12, 2004, at 9:15 a.m.

Released for Publication December 8, 2004.

Sommers, Schwartz, Silver & Schwartz, P.C. (by James N. McNally), Southfield, for the plaintiff.

Law Office of Robert W. Macy, P.C. (by Robert W. Macy), Clinton Township, and Daryl C. Royal, Dearborn, for the defendants.

Before: MARK J. CAVANAGH, P.J., and FITZGERALD and METER, JJ.

PER CURIAM.

Plaintiff-appellant Jessica Douglas appeals by leave granted from the order of the Worker's Compensation Appellate Commission (WCAC) reversing a magistrate's decision to award plaintiff five hundred weeks of benefits for the use and benefit of decedent's minor daughter Jamie Douglas. We reverse and reinstate the award of benefits. It is undisputed that, in September 1998, decedent Scott Moore was killed in an incident that arose out of and in the course of his employment with Prestige Painting. The sole relevant issue before the WCAC was whether Jamie Douglas, born in April 1998, was entitled to benefits as decedent's dependent child.

Plaintiff testified that before Jamie's birth plaintiff had an exclusive romantic relationship with decedent and that decedent was Jamie's father. Jamie currently receives Social Security and military survivor's benefits as decedent's child. Plaintiff lived with decedent off and on during and after her pregnancy. Although plaintiff testified that decedent did not support his daughter, plaintiff and Jamie lived with decedent until approximately six weeks before he was killed. Plaintiff has married twice following decedent's death. Neither plaintiff's husband nor her ex-husband adopted Jamie Douglas.

Decedent filed a paternity action before his death. Pursuant to a court order in August 1998, blood was drawn from plaintiff, Jamie, and decedent and submitted for paternity testing.¹ The procedures used for the test were described in the deposition testimony of Marco Scarpetta, Ph.D., a biochemist and the director of Orchid Genescreen, formerly National Legal Laboratories. Scarpetta testified that Orchid Genescreen routinely performed genetic paternity testing on blood samples pursuant to court orders. While Scarpetta did not personally draw blood from the subjects, he described his laboratory's standard procedure to ensure the identity of the samples. At the time the blood is drawn, the parents identify each other. Each party presents his or her driver's license for identification and has his or her thumbprint taken. These procedures are followed to ensure that only authenticated samples are tested. Once the samples are taken, each sample is given an identification number. The testing is performed by the facility, and the results are sent to Scarpetta for review. Dr. Scarpetta reviewed the raw data and determined that there was a 99.96 percent that probability that decedent was the father of Jamie Douglas.

The evidence presented at trial before the magistrate consisted of plaintiff's testimony, Dr. Scarpetta's deposition, the death certificate, and the police report regarding decedent's death. Defendants argued that Jamie should not be considered a dependent because she was not economically dependent on decedent. Defendants objected to the admission of Scarpetta's entire deposition on the grounds that it was hearsay, arguing that the blood was collected at one location and tested at another, with only the final results being reviewed by Scarpetta. The magistrate took defendants' objection under advisement and ultimately relied on the objected-to testimony without directly addressing the objection.

The magistrate found that decedent was the father of Jamie Douglas, noting that decedent had filed a paternity action, that blood samples were taken from the relevant parties, and that the blood test results indicated that decedent was Jamie's father. The magistrate's written opinion states:

Mario [sic] Scarpetta, Ph.D., performed DNA testing on the specimens on September 3, 1998, establishing Scott Moore could not be excluded as the biological father of Jamie Douglas and the probability that he was her father was 99.96%. According to Ms. Douglas, Mr. Moore died five days before there was to be a trial on the paternity issue. I find the testimony of Dr. Scarpetta sufficient to establish that Jamie Douglas is the daughter of Mr. Moore even though the issue was not adjudicated by the Circuit Court.

With regard to dependency, the magistrate noted that, under M.C.L. § 418.331(b), a child under the age of sixteen is conclusively presumed to be dependent on a parent. Citing this Court's opinion in Bettelon v. Metalock Repair Service, 137 Mich.App. 448, 452-453, 358 N.W.2d 608 (1984), the magistrate noted that the conclusive presumption of dependency applied to both legitimate and illegitimate children. The magistrate rejected defendants' argument that Jamie Douglas was not a dependent of decedent because she did not live with her father or receive support from him before his death, pointing out that the Bettelon case failed to distinguish between the rights of posthumously born illegitimate children and those born before the death of a parent. The magistrate found that plaintiff was entitled to five hundred weeks of benefits for the use and benefit of Jamie Douglas as decedent's daughter.

Defendants appealed to the WCAC, raising two arguments: (1) the magistrate erred in admitting Dr. Scarpetta's deposition because the testimony did not set forth an adequate foundation for the admission of the paternity test and was based purely on hearsay, and (2) the magistrate committed an error of law by finding that Jamie Douglas would automatically be decedent's dependent if she was proven to be his child.

The commission addressed defendants' second argument first. Citing M.C.L. § 418.353(1)(a)(ii), the WCAC found that only children under sixteen living with the employee at the time of his death are conclusively presumed to be dependents. Since Jamie was not living with decedent at the time he was killed, and Jessica Douglas testified that she received no support from decedent, the commission concluded that Jamie was neither a presumed dependent nor a factual dependent. On the basis of this finding, the commission reversed the award of benefits.

Although its resolution of the dependency issue rendered defendants' first issue moot, the commission addressed that argument "for the sake of judicial economy." The WCAC noted that the magistrate never addressed defendants' objections to the admission of Scarpetta's testimony. The WCAC concluded that the magistrate erroneously found that Scarpetta performed deoxyribonucleic acid (DNA) testing on the blood samples when Scarpetta merely reviewed the tests results and reached a decision regarding the data provided him. The commission noted that Scarpetta said that he could not be absolutely sure whether the samples provided by the laboratory were those of decedent, plaintiff, and Jamie Douglas. The commission's written opinion states:

We are persuaded and agree with defendant that the magistrate erroneously stated that Dr. Scarpetta "performed DNA testing on the specimens on September 3, 1998 establishing Scott Moore could not be excluded as the biological father of Jamie Douglas...." We are further persuaded that the magistrate's belief and reliance on that statement is not supported by competent, material, and substantial evidence on the whole record.

Despite that finding, the WCAC did not expressly reverse the magistrate's finding of paternity, but instead reversed the award of benefits on the basis of its analysis of the dependency issue, writing as follows:

We carefully examined the record and while duly cognizant of the deference to be given to the decision of the magistrate find grounds for reversal upon application of M.C.L. § 418.353 to the found facts in this case.

Plaintiff raises two arguments on appeal. First, plaintiff argues that Jamie, as a child under sixteen years of age, is conclusively presumed to be decedent's dependent under the Worker's Disability Compensation Act, M.C.L. § 418.101 et seq., and that the WCAC committed an error of law by applying the wrong section of the act. Second, plaintiff argues that the WCAC committed an error of law by...