Whaley v. McClain

• Decision Date: 14 May 1987
• Docket Number: Docket No. 90202
• Citation: 405 N.W.2d 187,158 Mich.App. 533
• Parties: Fred WHALEY and Wilhelmina Whaley, Plaintiff-Appellant, v. Frank McCLAIN, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 187

405 N.W.2d 187

158 Mich.App. 533

Fred WHALEY and Wilhelmina Whaley, Plaintiff-Appellant, v. Frank McCLAIN, Defendant-Appellee.

Docket No. 90202.

Court of Appeals of Michigan.

Submitted Oct. 22, 1986.

Decided March 16, 1987.

Released For Publication May 14, 1987.

Sablich, Ryan, Clinton & Zolkowski, P.C. by Dan J. Zolkowski, Lansing, for plaintiff-appellant.

Abood, Abood & Rheaume, P.C. by Michael J. Otis, Lansing, for defendant-appellee.

Before SULLIVAN, P.J., and SHEPHERD and SHUSTER, ^* JJ.

PER CURIAM.

FACTS

Plaintiff Fred Whaley and defendant were both Oldsmobile employees, working at one of the Lansing plants. One day, while they were both driving fork trucks, they got into an argument, allegedly about driving through a certain door. Defendant got out of his truck, walked over to plaintiff Fred Whaley, grabbed him by the collar, pulled him off the truck, and struck him. Plaintiff Fred Whaley was hospitalized five days for his injuries and began receiving workers' compensation benefits.

Plaintiffs, Fred Whaley and his wife, filed this action seeking damages for assault and battery. The Ingham Circuit Court granted defendant's motion for summary disposition, ruling that plaintiffs' claim was based on personal injuries so the exclusive remedy provision of the Workers' Disability Compensation Act barred this action.

ISSUE

Is a claim against a fellow employee alleging an intentional tort barred by the Workers' Disability Compensation Act?

ANSWER

Based on the Supreme Court's construction of the workers' compensation act, that it was never meant to apply to intentional torts, we do not believe the workers' compensation act provides a defense to an action against a coemployee alleging an intentional tort.

ANALYSIS

The workers' compensation act provides, in Sec. 131, that an injured employee's "exclusive remedy against the employer" is the right to recover benefits under the workers' compensation act. M.C.L. Sec. 418.131; M.S.A. Sec. 17.237(131).

In Sec. 827, the act states that an injured employee may not accept workers' compensation benefits and also sue the employer for damages. However, Sec. 827 also precludes an employee who has accepted workers' compensation benefits from suing a coemployee for damages:

"Where the injury for which compensation is payable under this act was caused under circumstances creating a legal liability in some person other than a natural person in the same employ or the employer to pay damages in respect thereof, the acceptance of compensation benefits ... shall not act as an election of remedies but the injured employee ... may also proceed to enforce the liability of the third party for damages in accordance with the provisions of this section." M.C.L. Sec. 418.827(1); M.S.A. Sec. 17.237(827)(1).

The Supreme Court determined in Sergeant v. Kennedy, 352 Mich. 494, 498, 90 N.W.2d 447 (1958), that the phrase "a natural person in the same employ," which was added in 1952 to what is now Sec. 827, served "to bar all suits against coemployees by employees for injuries sustained in circumstances otherwise compensable under the act." Justice Voelker, writing for the majority, questioned the wisdom of this legislation, quoting: Larson, Workmen's Compensation, 1952 ed., Sec. 72.50. "There is no logical reason for cutting off immunity at the plant door." Id., 499, 90 N.W.2d 447. Justice Voelker concluded:

"It must be remembered that in interpretating [sic] statutes even appellate courts must occasionally ruefully find themselves murmuring, to paraphrase a portion of Tennyson's--Charge of the Light Brigade--'ours is not to reason why.' " Id., 499-500, 90 N.W.2d 447.

Michigan courts have continued to hold that an action against a coemployee for personal injuries is barred if both employees were acting in the course of their employment at the time the injury occurred. See, e.g., Nichol v. Billot, 406 Mich. 284, 279 N.W.2d 761 (1979), Schwartz v. Golden, 126 Mich.App. 790, 793, 338 N.W.2d 218 (1983). Cases in which the plaintiff sued a coemployee alleging an intentional tort have turned on whether the coemployee was acting in the course of his employment and did not reach the question of whether the allegation of an intentional tort placed The Michigan Supreme Court recently reviewed the workers' compensation act in Beauchamp v. Dow Chemical Co., 427 Mich. 1, 6, 398 N.W.2d 882 (1986), and concluded that the Legislature never intended the exclusive remedy provision to extend to intentional torts.

                the case outside of the act.  Schwartz v. Golden, supra (one furniture salesman punched another while competing over a customer);   Johnson v. Arby's, Inc., 116 Mich.App. 425, 323 N.W.2d 427 (1982) (one employee shot another at company picnic);   Herndon v. UAW Local No. 3, 56 Mich.App. 435, 224 N.W.2d 334 (1974) (union steward assaulted employee).  The parties in this case do not dispute that this altercation arose during the course of their employment
                

"The origin and evolution of the workers' compensation act indicates that the legislation, including the exclusive remedy provision, was designed to provide an alternative compensation system respecting accidental and not intentional injuries."

The Court observed that the words "accident" and "accidental" were deleted from the act only to allow extension of coverage to occupational diseases, not...