Schefsky v. Evening News Ass'n

• Citation: 425 N.W.2d 768,169 Mich.App. 223
• Decision Date: 18 July 1988
• Docket Number: Docket No. 96517
• Parties: Frederick W. SCHEFSKY, Jr. and Lea Schefsky, Plaintiffs-Appellants, v. The EVENING NEWS ASSOCIATION, Defendant-Appellee, and North American Chemical Co., Flint Inc. Corp., Quality Control Litho Products, Dilan Corp., Rycoline Products, Inc., Zep Manufacturing Company, Pioneer Chemical, Hughes Chemical, Tokyo Kikai Seisakusho, Ltd. and Tesco, Inc., Defendants.
• Court: Court of Appeal of Michigan (US)

Page 768

425 N.W.2d 768

169 Mich.App. 223

Frederick W. SCHEFSKY, Jr. and Lea Schefsky, Plaintiffs-Appellants, v. The EVENING NEWS ASSOCIATION, Defendant-Appellee and North American Chemical Co., Flint Inc. Corp., Quality Control Litho Products, Dilan Corp., Rycoline Products Inc., Zep Manufacturing Company, Pioneer Chemical, Hughes Chemical, Tokyo Kikai Seisakusho, Ltd. and Tesco, Inc., Defendants.

Docket No. 96517.

Court of Appeals of Michigan.

Submitted March 17, 1988.

Decided June 7, 1988.

Released for Publication July 18, 1988.

Lopatin, Miller, Freedman, Bluestone, Erlich, Rosen & Bartnik by Richard E. Shaw, Detroit, for plaintiffs-appellants.

Butzel, Long, Gust, Klein & Van Zile by Daniel P. Malone and Darlene M. Domanik, Detroit, for defendant-appellee.

Before WAHLS, P.J., and MAHER and ALLEN, ^* JJ.

WAHLS, Presiding Judge.

Plaintiffs, Frederick W. Schefsky, Jr., and his wife, Lea Schefsky, appeal as of right from an October 21, 1986, order of the Wayne Circuit Court granting summary disposition under MCR 2.116(C)(4) in favor of defendant The Evening News Association (ENA). We affirm.

The record reveals that on April 1, 1986, plaintiffs filed suit against ENA and ten other companies for injuries suffered by Frederick W. Schefsky, Jr. (plaintiff), alleged to have been caused by the inhalation of toxic chemical fumes while at work. Specifically, plaintiff, employed as a pressman for ENA, claimed to have sustained chemical asthma as a result of having used certain solvents during the course of his employment while attempting to clean printing presses. Plaintiffs asserted in their complaint that defendant knew these solvents were dangerous, especially when used in confined areas, but withheld this information from plaintiff by removing the solvents from their original containers, to which were attached pertinent warning labels.

On June 27, 1986, ENA moved for summary disposition under MCR 2.116(C)(4)--lack of subject matter jurisdiction--on the basis that the exclusive remedy provision of the Workers' Disability Compensation Act (WDCA), M.C.L. Sec. 418.131; M.S.A. Sec. 17.237 (131), protected it from liability for plaintiff's injuries. On August 26 1986, plaintiffs moved to amend their complaint to "conform with [their] new discovery" that certain of "defendant's acts were extreme and outrageous thereby contributing [sic] an intentional tort" and to allege a breach of contract based on ENA's failure to have provided safe working conditions. ENA asserted, in response, that any amendment to plaintiffs' complaint would be futile because "all of plaintiff's pending theories of recovery ... fall squarely within the scope of the [exclusive remedy provision of the] WDCA." Hearings on ENA's motion were conducted on October 3 and 17, 1986. At the first hearing, the trial court granted summary disposition in favor of ENA regarding plaintiffs' original complaint. At the second hearing, the court granted plaintiffs' motion to amend their complaint, and then granted summary disposition in favor of ENA regarding plaintiffs' amended complaint. An order reflecting the court's action at these hearings was entered on October 21, 1986, and plaintiffs filed the instant appeal.

On appeal, plaintiffs first argue that the trial court erred in finding that their claim of intentional tort against ENA was barred by the exclusive remedy provision of the WDCA. That provision states that "[t]he right to the recovery of benefits as provided in this act shall be the employee's exclusive remedy against the employer." In an opinion released on December 23, 1986, the Supreme Court held that the exclusive remedy provision of the WDCA does not bar an action by an employee for an intentional tort by an employer and that whether a tort was intentional should be determined by applying a "substantial certainty" standard, i.e., by discerning whether the employer intended the act that caused the injury and knew that the injury was substantially certain to occur. Beauchamp v. Dow Chemical Co., 427 Mich. 1, 398 N.W.2d 882 (1986). Plaintiffs, in their brief on appeal, maintain that they successfully pleaded facts in fulfillment of the Beauchamp standard.

After Beauchamp was decided, the Legislature amended the exclusive remedy provision of the WDCA in 1987 P.A. 28, which was approved and filed on May 14, 1987, and ordered to take immediate effect. The amended provision, which specifically includes an exception for the intentional torts of employers, states:

"The right to the recovery of benefits as provided in this act shall be the employee's exclusive remedy against the employer for a personal injury or occupational disease. The only exception to this exclusive remedy is an intentional tort. An intentional tort shall exist only when an employee is injured as a result of a deliberate act of the employer and the employer specifically intended an injury. An employer shall be deemed to have intended to injure if the employer had actual knowledge that an injury was certain to occur and willfully disregarded that knowledge. The issue of whether an act was an intentional tort shall be a question of law for the court. This subsection shall not enlarge or reduce rights under law."

ENA, in its brief on appeal, asserts, as a threshold matter, that the amended statutory language is retrospectively applicable in this case because it is both remedial and procedural in nature. We agree that the amendment should be applied in this case because it is remedial or procedural in nature. The amendatory language was apparently enacted to clarify the legislative intent on a matter which, prior to Beauchamp, had created controversy at the appellate level of the judiciary in this state. See Beauchamp, supra, at p. 11, 398 N.W.2d 882, and cases cited therein. It is apparent to us that the amendatory language was prompted by the desire to correct or clarify the existing uncertainty regarding the original act. See Nelson v. Roscommon Co. Road Comm, 117 Mich.App. 125, 130, 323 N.W.2d 621 (1982); Romein v. General Motors Corp., 168 Mich.App. 444, 425 N.W.2d 174 (1988). Moreover, the amended statute, by its own terms, specifies that "[t]his subsection shall not enlarge or reduce rights under law," suggesting that the amendment is procedural in nature. A statute which operates in furtherance of a remedy already existing and which neither creates new rights nor destroys existing rights is held to operate retroactively unless a contrary legislative intent is manifested. Allstate Ins. Co. v. Faulhaber, 157 Mich.App. 164, 167, 403 N.W.2d 527 (1987); Joe Dwyer, Inc. v. Jaguar Cars, Inc., 167 Mich.App. 672, 681, 423 N.W.2d 311 (1988).

Applying the amendatory language to the case at bar, we find that the trial court did not err in granting summary disposition in favor of ENA because plaintiffs did not plead that ENA specifically intended to injure plaintiff, i.e., that ENA had actual knowledge that an injury was certain to occur. Indeed, in their brief on appeal, plaintiffs concede that "[d]efendant [ENA] may not have specifically intended plaintiff's illness." Nor do plaintiffs assert that ENA had actual knowledge that an injury, such as chemical asthma or any other serious or permanent respiratory disease, was certain to occur...