Wittenberg v. Bulldog Onsite Sols.
| Decision Date | 16 February 2023 |
| Docket Number | 359424 |
| Parties | SCOTT WITTENBERG, Plaintiff-Appellant, v. BULLDOG ONSITE SOLUTIONS, LLC, Defendant-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
Macomb Circuit Court LC No. 2020-001594-NO
Before: HOOD, P.J., and CAMERON and GARRETT, JJ.
Plaintiff Scott Wittenberg (Wittenberg), appeals as of right the trial court order granting summary disposition in favor of defendant, Bulldog Onsite Solutions, LLC (Bulldog), in this negligence suit arising out of a workplace injury. The trial court applied the wrong standards to determine if Wittenberg was an employee within the meaning of the Worker's Disability and Compensation Act, MCL (WDCA), MCL 418.101 et seq. We, therefore, reverse and remand for proceedings consistent with this opinion.
This case started with a workplace injury in June 2017, where Wittenberg fell approximately 30 feet while working as a rigger for Bulldog. Wittenberg worked in the rigging business, which involves, at least here, moving heavy industrial equipment. The process involves attaching workloads to cranes or structures using cables, pulleys, and winches. Bulldog is a rigging business. It helps move heavy equipment for its industrial customers. Bulldog employs riggers, a skilled trade that helps move the heavy equipment.
Bulldog's founder, Jason Eelbode, interviewed and hired Wittenberg in or around May 2016. He believed that Wittenberg worked for Bulldog continuously from May 2016 until his injury in June 2017. While working for Bulldog, Bulldog directed Wittenberg's work duties, paid his wages, and could discipline and fire him. It also provided Wittenberg with his equipment and tools. Wittenberg claimed that he held himself out as an independent contractor, working at other jobsites for other employers. He also appears to have been paid as a 1099 contractor.
On June 5, 2017, and June 6, 2017, Wittenberg worked for Bulldog, with others, to prepare, disassemble, and load two large hydraulic presses onto trucks at a plant in Chesterfield, Michigan, belonging to one of Bulldog's customers. Wittenberg learned of the job from Richard Bunting, Bulldog's director of operations. On June 5, 2017, Wittenberg and others moved the first press without incident. On June 6, 2017, however, Wittenberg was injured. Wittenberg was on a raised "scissor lift" overseeing the moving of the second press when the crane lifting the press hit the scissor lift. Wittenberg fell approximately 30 feet and hit his head on the cement floor.
Following his injury, Wittenberg received worker's compensation benefits from Bulldog's insurer. Bulldog's notice of compensation payments, and its insurer's "Workers Compensation Detailed Loss Report" both show payments for Wittenberg's benefit from mid-June 2017 until at least August 2017. The loss report indicated that as of the end of September 2017, the insurer paid $22,177 related to Wittenberg's injuries.
In late April 2020, Wittenberg sued Bulldog, raising two claims: (1) negligence, and (2) gross negligence. Bulldog moved for summary disposition under MCR 2.116(C)(10), arguing that the exclusive-remedy provision of the WDCA, MCL 418.131(1), barred Wittenberg's negligence and gross negligence claims. Bulldog argued that Wittenberg qualified as an employee under the economic-reality test. It also argued that his receipt of worker's compensation benefits brought him into the exclusive-remedy provision of the act, and to hold otherwise would subvert the purpose of the WDCA. Wittenberg responded, agreeing that the economic-reality test informs a worker's employment status, but arguing that under that test, he qualified as an independent contractor. In his response, Wittenberg cited testimony from Eelbode and Bunting that supported his position that he held himself out as an independent contractor for other work.
Following a hearing, the trial court granted Bulldog's motion for summary disposition on two bases. First, the court found that Wittenberg's acceptance of worker compensation benefits barred his negligence and gross negligence claims. It concluded that his acceptance of benefits made Wittenberg an employee subject to the exclusive-remedy provision of the WDCA. Second, the court applied the economic-reality test to find that Wittenberg was an employee. It noted it was "a close call" because there were "factors weighing in favor of both parties." Critically, the court acknowledged that Wittenberg, Bunting, and Eelbode all testified that Wittenberg held himself out to the public for hire as a rigger, which it found weighed "slightly more toward him being an independent contractor." The court nonetheless concluded that the factors weighed in Bulldog's favor and granted the motion.
This appeal followed.
This Court reviews de novo a trial court's decision on a motion for summary disposition. El-Khalil v Oakwood Healthcare Inc, 504 Mich. 152, 159; 934 N.W.2d 665 (2019). A motion under MCR 2.116(C)(10) "tests the factual sufficiency of a claim." Id. at 160 (citation and emphasis omitted). In considering a motion under MCR 2.116(C)(10), the trial court "must consider all evidence submitted by the parties in the light most favorable to the party opposing the motion." Id. (citation omitted). Such a motion "may only be granted when there is no genuine issue of material fact." Id. (citation omitted). "A genuine issue of material fact exists when the record leaves open an issue upon which reasonable minds might differ." Id. (quotation marks and citation omitted).
"We also review de novo underlying issues of statutory interpretation." Drob v SEK 15, Inc, 334 Mich.App. 607, 617; 965 N.W.2d 683 (2020) (citation omitted). "Whether an individual is an employee as defined by the WDCA presents a question of law subject to review de novo." Id. (quotation marks and citation omitted).
The WDCA is Michigan's worker's compensation statute. Ideally, the dual purpose of the WDCA is to streamline the payment and receipt of benefits for workers who are injured on the job and to limit employers' exposure to individual lawsuits by injured workers. See Reed v Yackell, 473 Mich. 520, 529-530; 703 N.W.2d 1 (2005) (opinion by TAYLOR, C.J.). An employee, who falls within the WDCA's framework, is subject to the exclusive-remedy provision of the act, MCL 418.131(1). See id. This means, with the exception of certain intentional torts, an employee subject to the exclusive-remedy provision cannot sue their employer for a workplace injury except to recover WDCA benefits. See id.; MCL 418.131(1). As with many worker's compensation cases, the threshold question is whether Wittenberg was an "employee" under the definitions in the WDCA.
Wittenberg argues that the trial court erroneously applied the economic-reality test to determine whether Wittenberg constitutes Bulldog's employee and that, instead, the court should have looked to the explicit definition of "employee" under MCL 418.161 of the WDCA. We agree. Instead of applying the economic-reality test, the trial court should have considered whether Wittenberg constituted an "employee" for purposes of the exclusive-remedy provision by evaluating MCL 418.161(1)(l) and (n). See Drob, 334 Mich.App. at 617-619.
The issue here is not whether Bulldog is an employer; rather, the critical inquiry is whether Wittenberg is an employee. The WDCA does not explicitly define the term "employer,"[1] so courts "regularly appl[y] the 'economic realities test' to determine whether an employment relationship exists for purposes of the exclusive remedy provision, and thus whether an individual or entity is the 'employer' of a given employee." Clark v United Technologies Auto, Inc, 459 Mich. 681, 687; 594 N.W.2d 447 (1999). See also id. at 687 n 5 (indicating that the Legislature had not further defined "employer" but recognizing the Supreme Court's decision in Hoste v Shanty Creek Mgt, Inc, 459 Mich. 561, 572; 592 N.W.2d 360 (1999), in which the Court noted that MCL 418.161 defined "employee" and superseded the economic realities test by legislative enactment). The economic-reality test does not, however, apply to the determination of whether a person is an employee. Luster v Five Star Carpet Installations, Inc, 239 Mich.App. 719, 726; 609 N.W.2d 859 (2000).
Instead, a person qualifies as an "employee" if they meet the definition of that term as legislatively defined in MCL 418.161. In Drob, this Court held that whether an individual is an "employee" subject to the exclusive-remedy provision of the WDCA requires satisfaction of the criteria under MCL 418.161(1). Drob, 334 Mich.App. at 618-620. As in Drob, the relevant subsections here are MCL 418.161(1)(l) and (n). Those provisions provide, in relevant part:
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