Sewell v. Bathey Mfg. Co.

• Decision Date: 17 February 1981
• Docket Number: Docket No. 47699
• Citation: 303 N.W.2d 876,103 Mich.App. 732
• Parties: Jon SEWELL, Plaintiff-Appellant, v. BATHEY MANUFACTURING COMPANY, a Michigan Corporation, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 876

303 N.W.2d 876

103 Mich.App. 732

Jon SEWELL, Plaintiff-Appellant, v. BATHEY MANUFACTURING COMPANY, a Michigan Corporation Defendant-Appellee.

Docket No. 47699.

Court of Appeals of Michigan.

Feb. 17, 1981.

Released for Publication April 15, 1981.

John A. Ashton, Plymouth, for plaintiff-appellant.

Dennis M. Day, Detroit, for defendant-appellee.

Before KAUFMAN, P. J., and CYNAR and TOWNSEND, ^* JJ.

CYNAR, Judge.

On May 8, 1979, plaintiff filed a complaint against defendant in Wayne County Circuit Court, which complaint averred, inter alia, that plaintiff was injured in a work-related incident caused by the defendant-employer's gross negligence. Defendant filed a motion for accelerated judgment, ¹ contending that jurisdiction in this action was vested exclusively in the Bureau of Workmen's Compensation. In support of this position, defendant cited M.C.L. §§ 418.131, 418.841; M.S.A. §§ 17.237(131), 17.237(841). On September 18, 1979, the trial court entered an order granting defendant's motion for accelerated judgment. On October 5, 1979, plaintiff timely filed a claim of appeal from the judgment so entered and now appeals as of right.

On February 8, 1980, plaintiff submitted his brief on appeal to this Court. Subsequent thereto, this case was duly placed for argument on the June 1980 case call. On June 2, 1980, after this action was docketed for argument, plaintiff deposed an employee of defendant relative to a companion case arising out of the same work-related injuries sustained by plaintiff. It is alleged that, during the course of that deposition, the employee claimed that defendant had been intentionally removing safety guards from a punch press machine in which plaintiff received his injuries. It is further contended that the deponent also testified that defendant had received information in advance from MIOSHA ² personnel regarding impending inspections. According to the deponent, defendant temporarily would reinstall the guards only for inspection purposes.

Following oral argument on the merits of the issue raised in plaintiff's original brief on appeal and on the question of whether plaintiff should be allowed to file a supplemental brief dealing with alleged complicity between defendant and MIOSHA personnel in circumventing the act, this Court granted plaintiff's motion for leave to file a supplemental brief on August 27, 1980. It is in this posture that the case sub judice is before this Court on appeal.

It is beyond question that, when an injury is sustained which is compensable under the Worker's Disability Compensation Act of 1969, the exclusive-remedy provision of the act ³ bars any common-law tort cause of action by an employee against his employer arising therefrom. Milton v. Oakland County, 50 Mich.App. 279, 283, 213 N.W.2d 250 (1973), Broaddus v. Ferndale Fastener Division, Ring Screw Works, 84 Mich.App. 593, 597-598, 269 N.W.2d 689 (1978), lv. den. 403 Mich. 850 (1978). An injury which is "a personal injury arising out of and in the course of (an injured party's) employment is compensable under the act. M.C.L. § 418.301; M.S.A. § 17.237(301), Kissinger v. Mannor, 92 Mich.App. 572, 575, 285 N.W.2d 214 (1979). Personal injuries for which the act provides a remedy include both physical and mental injuries suffered on account of employment. Deziel v. Difco Laboratories, Inc. (After Remand), 403 Mich. 1, 268 N.W.2d 1 (1978), Kissinger, supra, 575, 285 N.W.2d 214.

It is also beyond peradventure that the question of whether the act applies to a particular injury, i. e., whether an injury arose out of and in the course of a worker's employment (and thus is compensable under the act), is a question to be resolved in the first instance exclusively by the Bureau of Workmen's Compensation. Szydlowski v General Motors Corp., 397 Mich. 356, 358-359, 245 N.W.2d 26 (1976), St. Paul Fire & Marine Ins. Co. v. Littky, 60 Mich.App. 375, 377-378, 230 N.W.2d 440 (1975), M.C.L. § 418.841; M.S.A. § 17.237(841). Such being the case, it would appear that the trial court properly dismissed the instant suit pursuant to GCR 116.1(2), and this Court could predicate an affirmance solely upon this ground of decision. However, because of the importance of the other issues raised by plaintiff and the fact that they are apparently questions of first impression in Michigan we choose to review the merits of those contentions.

First, we deal with plaintiff's claim that because gross negligence on the part of the employer is alleged the exclusive-remedy provision of the act is not applicable. The clear weight of authority is against plaintiff's position. See 101 CJS Workmen's Compensation § 927, p. 382. Moreover, in ruling on an identical claim under the precursor of the exclusive-remedy provision in the present act, the United States Court of Appeals for the Sixth Circuit concluded that a worker's exclusive remedy was under the act. Pfeifer v. GMC Truck & Coach Division, 255 F.2d 40, 41 (C.A.6, 1958). The court properly found that the statute does not differentiate among the common-law actions which were previously available. So too, the court in Pfeifer inferred that the correct focus is on whether the injuries themselves fell within the purview of the act, irrespective of the nature of the employer's acts. We are persuaded that the rule announced in Pfeifer is an accurate statement of Michigan law under the present act, and, therefore, we hold that an allegation of gross negligence, standing alone, is insufficient to take an injury resulting therefrom outside the scope of the act. Moreover, we note that plaintiff concedes that his injuries arose out of an in the course of his employment. ⁴

Next, we confront plaintiff's argument that the exclusive-remedy provision as applied to the facts alleged in his complaint (gross negligence on the part of his employer) results in an unconstitutional deprivation of property without due process because it abolishes a common-law right of recovery without creating a commensurate remedy. The short answer to this is that the Legislature need not provide an adequate substitute remedy before abolishing a common-law cause of action in tort. Shavers v. Attorney General, 402 Mich. 554, 620, 267 N.W.2d 72 (1978). The abolition of a common-law remedy is measured by the traditional due process test, viz., whether the legislation bears a reasonable relationship to a permissible legislative objective. Shavers, supra, 620-621, 267 N.W.2d 72. The Worker's Disability Compensation Act of 1969 already has been found to satisfy this standard. McAvoy v. H. B. Sherman Co., 401 Mich. 419, 437, 258 N.W.2d 414 (1977). Plaintiff's claim in this regard thus fails for want of merit.

It remains for us to decide what effect, if any, plaintiff's allegations regarding violations of MIOSHA have on our ruling that the exclusive remedy provision bars his suit for damages. Prefatorily, we note again that it is undisputed that plaintiff's injuries fall under the language of M.C.L. § 418.301(1); M.S.A. § 17.237(301)(1), regarding injuries remediable under the act. In this last argument, plaintiff again chooses to focus on his employer's conduct in urging us to allow him to pursue a common-law action against defendant.

Our starting point for analysis of this final issue is M.C.L. § 408.1002; M.S.A. § 17.50(2), § 2 of MIOSHA, which provides in relevant part:

"(2) Nothing in this act shall be construed to supersede or in any manner affect any workers' compensation law, or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment."

This section indicates that even intentional acts of an employer, including those which would subject said employer to civil or criminal sanctions under MIOSHA, in no way affect the application of the exclusive-remedy provision to the injuries sustained in the...