Stimson v. Michigan Bell Tel. Co.

• Decision Date: 09 August 1977
• Docket Number: Docket No. 27474
• Citation: 258 N.W.2d 227,77 Mich.App. 361
• Parties: , 22 Fair Empl.Prac.Cas. (BNA) 1135 H. Richard STIMSON and Carol A. Stimson, his wife, Plaintiffs-Appellees, v. MICHIGAN BELL TELEPHONE COMPANY, a Michigan Corporation, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 227

258 N.W.2d 227

77 Mich.App. 361, 22 Fair Empl.Prac.Cas. (BNA) 1135

H. Richard STIMSON and Carol A. Stimson, his wife Plaintiffs-Appellees, v. MICHIGAN BELL TELEPHONE COMPANY, a Michigan Corporation Defendant-Appellant.

Docket No. 27474.

Court of Appeals of Michigan.

Aug. 9, 1977.

Released for Publication Oct. 17, 1977.

Butzel, Long, Gust, Klein & Van Zile by Donald B. Miller, Detroit, for defendant-appellant.

Philo, Cockrel, Spearman, Cooper, Rine, King & Atkinson by Linda Miller Atkinson, Detroit, for plaintiffs-appellees.

Before V. J. BRENNAN, P. J., and WALSH and O'BRIEN, ^* JJ.

PER CURIAM.

Defendant appeals from an order of the Wayne County Circuit Court denying its motion for partial summary judgment and/or to strike portions of plaintiffs' complaint.

On July 9, 1974, plaintiffs ¹ filed suit pursuant to the Michigan Fair Employment Practices Act, M.C.L.A. § 423.301 et seq.; M.S.A. § 17.458(1) et seq. (hereinafter, the "FEPA"), and the United States and Michigan Constitutions, charging defendant with discriminating against her, on the basis of sex, as to grade and wage promotions and her eventual discharge. Plaintiff alleged that because of such discrimination, she suffered an acute nervous breakdown, required hospitalization, was unable to secure employment, and experienced embarrassment, humiliation and a loss of esteem among her peers because of her inability to support herself. Mr. Stimson alleged that he suffered a loss of consortium due to his wife's injuries. Plaintiffs sought back pay, future pay and compensatory and punitive damages.

Plaintiff, on August 28, 1974, also filed a petition with the Bureau of Workmen's Compensation seeking relief for a "complete and acute nervous and mental breakdown".

On January 10, 1975, defendant moved for summary judgment on the basis that workers' disability benefits constituted plaintiff's sole remedy for the injuries alleged. The motion was denied. Thereafter, on May 15, 1975, defendant moved for partial summary judgment and/or to strike certain elements of damages for which recovery was sought. Defendant argued that claims for plaintiff's nervous breakdown, embarrassment, humiliation and loss of esteem among her peers, and Mr. Stimson's loss of consortium, were barred by the exclusive remedy provision of the Worker's Disability Compensation Act. M.C.L.A. § 418.131; M.S.A. § 17.237(131). The company further contended that neither compensatory damages for mental distress nor punitive damages were recoverable under the fair employment practices act. The motion was denied on October 17, 1975. In an order dated June 1, 1976, this Court granted leave to appeal. On appeal, defendant renews the claims made in its motion for partial summary judgment and/or to strike. ²

A motion for summary judgment brought pursuant to GCR 1963, 117.2(1) tests the legal sufficiency of the claim as determined by the pleadings alone. Every well-pleaded allegation in the complaint is assumed to be true. The motion is to be granted when the plaintiff's claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. Stewart v. Troutt, 73 Mich.App. 378, 251 N.W.2d 594 (1977), Mobil Oil Corp. v. Thorn, 67 Mich.App. 682, 242 N.W.2d 487 (1976), lv. granted 397 Mich. 889 (1976).

M.C.L.A. § 418.131; M.S.A. § 17.237(131) provides:

"The right to the recovery of benefits as provided in this act shall be the employee's exclusive remedy against the employer."

The right to compensation under the Worker's Disability Compensation Act is dependent upon proof of a "personal injury arising out of and in the course of employment by an employer who is subject to the provisions" of the act. M.C.L.A. § 418.301; M.S.A. § 17.237(301). Mental, as well as physical, injuries are encompassed within the terms of the act. Carter v. General Motors Corp., 361 Mich. 577, 106 N.W.2d 105 (1960).

In support of their contention that their complaint states a cause of action outside the scope of the Worker's Disability Compensation Act plaintiffs rely heavily on Moore v. Federal Department Stores, Inc., 33 Mich.App. 556, 190 N.W.2d 262, 46 A.L.R.3d 1275 (1971).

In Moore, the plaintiff, a department store sales clerk, was unjustly accused of taking money from a register by store officials and was detained for questioning. She subsequently commenced an action against her employer for false imprisonment, seeking, in part, to recover damages for humiliation, embarrassment and emotional stress. The defendant moved for summary judgment arguing that workers' compensation constituted the plaintiff's sole remedy. The motion was granted, plaintiff appealed and this Court reversed, stating:

"It is plaintiff's claim that her humiliation, embarrassment, and deprivation of personal liberty are not the type of 'personal injury' contemplated in the above-quoted section. We agree.

"The Act has been interpreted to encompass physical and mental injuries which arise out of and in the course of one's employment. However, the gist of an action for false imprisonment is unlawful detention irrespective of any physical or mental harm. See Carr v. National Discount Corporation (C.A. 6, 1949), 172 F.2d 899, cert. den. 338 U.S. 817, 70 S.Ct. 59, 94 L.Ed. 495). We do not feel, therefore, that the plaintiff has suffered the type of personal injury covered under the Act." Moore v. Federal Department Stores, Inc., supra, 33 Mich.App. at 559, 190 N.W.2d at 264. (Footnotes omitted.)

Defendant argues that Moore is distinguishable from the case at bar because the essence of plaintiffs' suit is the mental injury suffered by Mrs. Stimson which injury is compensable under the act. Plaintiffs contend that the rationale of our earlier decision directly controls the present case. This Court finds the distinction noted by the defendant to be a valid one.

Generally, non-physical torts, such as false imprisonment or sex discrimination, ³ fall outside the scope of an exclusive- remedy provision. 2A Larson, Workmen's Compensation Law, § 68.30, pp. 13.31-13.32. Certain elements of damages in an action for a non-physical tort may nevertheless be barred in this state because the type of damages claimed are those for which workers' compensation is provided.

In Milton v. Oakland County, 50 Mich.App. 279, 213 N.W.2d 250 (1973), the plaintiff commenced suit against his employer alleging physical and mental injuries and damages resulting from the defendant's breach of the employment contract. The defendant moved for summary judgment on the basis of the exclusive-remedy provision which motion was granted. On appeal, this Court held that while workers' compensation constituted the plaintiff's exclusive remedy for his mental and physical injuries, he was entitled to a trial on the breach of contract claim.

"Our courts have found the exclusive-remedy bar inapplicable when the challenged injury is not sustained in the course of the employment or the injury is not compensable under the act. Crawley v. General Motors Truck Corp., 259 Mich. 503, 244 N.W. 143 (1932); Byrne v. Clark Equipment Co., 302 Mich. 167, 4 N.W.2d 509 (1942); and Moore v. Federal Department Stores, Inc., 33 Mich.App. 556, 190 N.W.2d 262 (1971); Panagos v. North Detroit General Hospital, 35 Mich.App. 554, 192 N.W.2d 542 (1971)." Milton v. Oakland County, supra, 50 Mich.App. at 284, 213 N.W.2d at 252.

Also, Haddad v. Justice, 64 Mich.App. 74, 235 N.W.2d 159 (1975).

Admittedly, plaintiffs in the present case, like the plaintiff in Moore, state a cause of action which exists irrespective of mental or physical injury. The elements of the tort, however, do not alone control the issue of whether a separate civil action against an employer is permissible or the extent to which damages may be recovered.

In analyzing the Moore decision, Professor Larson comments:

"If all the cases were as 'pure' in their facts as this Michigan case, there would be little controversy to discuss. What complicates this category of cases is that personal injury is sometimes alleged as one of the consequences of the false imprisonment. In this type of case, unless the court can . . . find true intentional wrongdoing on the part of the employer, the controlling argument must be that the essence of the tort is not physical injury but deprivation of liberty, and that the physical or mental harm is incidental, and is not an indispensable ingredient of the tort." 2A Larson, Workmen's Compensation Law, § 68.31, p. 13.21. (Footnote omitted.)

Professor Larson theorizes, however, that where an employee suffers a physical and mental breakdown as the result of being falsely imprisoned, which imprisonment is accidental insofar as the employer is concerned, a civil action based on the incident is barred. The essence of the action is no longer humiliation but physical disability, the type of injury with which compensation laws are concerned.

Subsequently, in discussing the tort of intentional infliction of emotional distress, a tort closely related to a discrimination charge, see, e. g., Gray v. Serruto Builders, Inc., 110 N.J.Super. 297, 265 A.2d 404 (1970), Larson states that not only must the elements of the tort be examined in order to determine whether suit is barred by the exclusive-remedy provision, but also the damages claimed. "If the essence of the tort, in law, is non-physical, and if the injuries are of the usual non-physical sort, with physical injury being at most added to the list of injuries as a makeweight, the suit should not be barred. But if the essence of the action is recovery for physical injury or death, the action should be barred even if it can be cast in the form of a normally non-physical tort." 2A Larson, Workmen's Compensation Law, § 68.34, pp. 13.31-13.32.

See, also, 46 A.L.R.3d 1279, 1283-1284.

As previously noted, the courts of this state do not bar a civil action against an employer completely because...