Ottenwess v. Hawkeye-Security Ins. Co., HAWKEYE-SECURITY
| Decision Date | 20 June 1978 |
| Docket Number | HAWKEYE-SECURITY,Docket No. 77-2819 |
| Citation | 269 N.W.2d 570,84 Mich.App. 292 |
| Parties | Deborah OTTENWESS (Schroeder), Individually and as next friend of her minor children, Michael and Susan, Plaintiff-Appellant, v.INSURANCE CO., and Travelers Insurance Co., Defendants-Appellees. 84 Mich.App. 292, 269 N.W.2d 570 |
| Court | Court of Appeal of Michigan — District of US |
[84 MICHAPP 294] Hillman, Baxter & Hammond by Michael D. Wade, Grand Rapids, for plaintiff-appellant.
Linsey, Strain & Worsfold by Dale M. Strain and Donald Worsfold, Grand Rapids, for Hawkeye-Security Ins.
Wheeler, Upham, Bruant & Uhl by Robert H. Gillette and Susan Flakne, Grand Rapids, for Travelers Ins.
Before J. H. GILLIS, P. J., and R. B. BURNS and ALLEN, JJ.
Plaintiff, decedent's spouse, instituted suit to collect no-fault automobile insurance benefits from decedent's insurer, Hawkeye Security Insurance Company (Hawkeye), and decedent's employer's insurer, Travelers Insurance Company (Travelers). The trial court granted both defendants summary judgment on the authority of Mathis v. Interstate Motor Freight System, 73 Mich.App. 602, 252 N.W.2d 842 (1977), and plaintiff appeals.
The decedent, Michael Ottenwess, was an employee of Wickes Lumber Company. While examining or attempting to repair a malfunction in the mechanism of a company dump truck, Ottenwess was crushed to death when the dump box suddenly [84 MICHAPP 295] came down upon him, trapping him between the box and the frame of the truck. The malfunction came to Ottenwess's attention while he was making deliveries with the truck in the regular course of his employment. He had just exited the cab and was standing on or next to the dump box when the incident occurred. Following the accident, plaintiff and her two minor children received worker's compensation benefits from Wickes Lumber Company's compensation carrier.
Defendant Travelers asserts that the exclusive remedy provision of the Worker's Disability Compensation Act, M.C.L. § 418.131; M.S.A. § 17.237(131), prevents recovery by plaintiff, relying upon Mathis v. Interstate Motor Freight System, supra. Except for the fact that in that case the employer was self-insured, Mathis is identical to the situation before us as far as Travelers is concerned. There, plaintiff was injured while unloading freight from his employer's semi-trailer. He drew worker's compensation benefits and applied for benefits under the no-fault act. The trial judge held that worker's compensation benefits were plaintiff's exclusive remedy. In a single sentence this Court affirmed:
Mathis v. Interstate Motor Freight System, supra at 603, 252 N.W.2d at 842.
Plaintiff seeks to distinguish Mathis on the grounds that, there, the employer was a no-fault self-insurer and as such would pay no-fault benefits for an injury in tort, whereas in the instant case the employer is a contractual insurer for [84 MICHAPP 296] whom no-fault benefits are paid Ex contractu. Plaintiff's distinction is supported by the recent case of Hawkins v. Auto Owners Ins. Co., 83 Mich.App. 225, 268 N.W.2d 534, 535 (1978). That case was factually indistinguishable from the instant case, and the Court said:
We do not agree with the distinction made in Hawkins, because it conflicts with the no-fault act's provision that a self-insurer "has all the obligations and rights of an insurer under this chapter". M.C.L. § 500.3101(4); M.S.A. § 24.13101(4). The liabilities of self-insurers and insurers must be coextensive. Under Hawkins, the liability of insurers is greater than that of self-insurers. For the purpose of the application of the exclusive remedy provision of the Worker's Disability Compensation Act, an employer's no-fault insurer must be considered the alter ego of the employer.
Nor do we agree with plaintiff's tort-contract distinction. Applicability of the exclusive remedy [84 MICHAPP 297] provision of the Worker's Disability Compensation Act turns not upon the characterization of the asserted cause of action as tort or contract, but upon whether the employee has a right to recover benefits under the act. M.C.L. § 418.131; M.S.A. § 17.237(131). An employee has a right to compensation where he "receives a personal injury arising out of and in the course of his employment". M.C.L. § 418.301; M.S.A. § 17.237(301).
Suit is not barred against employers for all tort, Crawley v. General Motors Truck Corp., 259 Mich. 503, 244 N.W. 143 (1932), Panagos v. North Detroit General Hospital, 35 Mich.App. 554, 192 N.W.2d 542 (1971), Moore v. Federal Department Stores, Inc., 33 Mich.App. 556, 190 N.W.2d 262 (1971), or all contract, Milton v. Oakland County, 50 Mich.App. 279, 213 N.W.2d 250 (1973), damages, but where the above criteria for recovery of worker's compensation are applicable, suit is barred even on a contract theory, Neal v. Roura Iron Works, Inc., 66 Mich.App. 273, 238 N.W.2d 837 (1975), Milton v. Oakland County, supra. Since plaintiff was entitled to, and did in fact receive, worker's compensation, further recovery cannot be had by labeling the asserted right thereto "contract".
Mathis is therefore not distinguishable as to Travelers' alleged liability, and controls the resolution of this issue. However, plaintiff has advanced arguments that the exclusivity provision of the Worker's Disability Compensation Act does not bar recovery under the no-fault act. These arguments are not met by the brief opinion in Mathis. We have therefore reexamined the issue, and determine that Mathis was correctly decided.
The worker's compensation exclusivity provision does not itself contain an exception to permit recovery of no-fault benefits. M.C.L. § 418.131; M.S.A. § [84 MICHAPP 298] 17.237(131), nor does the no-fault act contain an express partial repeal of the worker's compensation exclusivity provision.
Couvelis v. Michigan Bell Telephone Co., 281 Mich. 223, 225, 274 N.W. 771, 772 (1937).
Attorney General, ex rel. Owen v. Joyce, 233 Mich. 619, 623, 207 N.W. 863, 864 (1926).
It is plaintiff's theory that subsection 3114(3) of the no-fault act clearly contemplates recovery by an employee of both worker's compensation and no-fault benefits. This subsection provides:
"An employee, his spouse, or a relative of either domiciled in the same household, who suffers accidental bodily injury while an occupant of a motor vehicle owned or registered by the employer shall receive personal protection insurance benefits to which the employee is entitled from the insurer of the furnished vehicle." M.C.L. § 500.3114(3); M.S.A. § 24.13114(3).
Section 3114 is a priority provision, dictating which of several insurers will be liable in various circumstances. That subsection 3114(3) is only a priority provision, and was not intended to create additional substantive rights to recover, is apparent from the qualifying words "to which he is entitled". Plaintiff is not entitled to recover because[84 MICHAPP 299] such recovery is barred by the exclusivity provision of the Worker's Disability Compensation Act.
It is asserted that the use of the words "to which he is entitled" is an obscure way for the Legislature to indicate that it did not intend recovery by an employee against his employer's no-fault insurer where he is entitled to worker's compensation. However, the exclusivity provision is a clear expression of such intent. The exclusivity provision was amended October 30, 1972, and the no-fault act was passed October 31, 1972. The Legislature was surely aware of the potential overlap of the two acts, and had it intended to effectuate a partial repeal of the exclusivity provision, it would have done so explicitly.
It is also asserted that if subsection 3114(3) is interpreted so as to apply only where an employee is using a company vehicle for personal business, not in the course of his employment, the subsection will apply to a situation which occurs so infrequently that it is illogical to assume the Legislature would have included the provision within the act. We are sure that thousands of employees have access to company vehicles for personal use. That the Legislature anticipated injuries arising in such situation is apparent from its inclusion of the employee's spouse, and relatives domiciled within the household, within the subsection, for how many employees have their spouses and relatives riding with them in company vehicles...
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