*1 129 COMPANY, BARNES v DOUBLE SEAL GLASS INC 1983, February Lansing. No. 63107. Submitted at Docket Decided 26, 1983. September appeal applied for. Leave Barnes, individually personal representative Wallace Barnes, deceased, brought Tim the estate of and Norma Barnes against Inc., Company, Seal an action Double Glass Edmund C. Roger Jackson, Stephen Coe, Mogford, and Robert Bolonke in the Genesee Circuit Court. Double Seal was em- decedent’s ployer individual were coem- decedent’s following ployees. Decedent died work-related accident. Plain- complaint alleged alleged I tiffs’ six counts. Count that defen- negligence alleged dants’ led to accident. Count II negligently by failing defendants acted after the accident give prompt medical which care would have saved alleged intentionally his life. Count III that defendants failed to thereby allowing injury, act after decedent’s Tim Barnes to die. alleged conspired Count IV that defendants to let decedent die because knew that workers’ death benefits radically payment disability were lower than benefits if lived, dependents. decedent had had because decedent no Counts V and VI that defendants inflicted upon plaintiffs directly, emotional distress as individuals. The court, Yeotis, J., granted summary judgment Thomas C. for I, II, V, summary defendants on Counts and VI and denied appealed Counts III IV. on Plaintiff and defen- cross-appealed. dants Held: negligence 1. Plaintiffs’ claims are barred remedy Disability Compensation of the Worker’s Act. 2. III and not Counts IV are barred provision. parents 3. may of a minor maintain an action for [5] [1] [2, [3] [4] Right Am38 6] 81 Am Jur Workmen’s 22 Am Jur 81 Am Jur Workmen’s 16A Am Jur or death covered workmen’s 81 Am Jur Jur maintain 2d, Fright, Shock, 2d, 2d, 2d, References 2d, 2d, Death 126. Constitutional Law Workmen’s direct § action for Compensation Compensation and Mental Disturbance 36.§ Points Compensation compensation. § in Headnotes 749. fellow § § 165. 230. §§ 67. ALR3d 845. Seal Glass Double Barnes v independent of an emotional distress infliction of acts resulted in where the intentional death action for of the minor. the death attacking social party in economic and a classification 4. A grounds heavy equal protection legislation has on welfare *2 demonstrating lacks a reason- that the classification of burden equal protection alleged but a violation basis. Plaintiffs able proof. of to meet their burden failed III, I, II, as to IV and reversed to Counts Affirmed as VI. Counts V and sepa- Burns, P.J., but wrote in the T. M. concurred result allegations clarify position of inten- rately that not his all remedy bar of the exclusive are outside the tional action bring employee may suit provision. that an He would hold remedy provision despite of against employer the exclusive an only Disability Compensation Act where the Worker’s itself, injury alleged not employer intended the to have is leading injury. merely the act Opinion of the Court Negligence — Compensation — Remedies. Gross 1. Workers’ employer, part allegation gross negligence an on the of An alone, injury standing otherwise to take an is insufficient Disability Compensation compensable Act under the Worker’s act; remedy scope the worker’s exclusive from the (MCL418.131; 17.237[131]). MSA remains under the act Conspiracy — Compensation — —Torts 2. Workers’ Intentional Remedies. against employer and co- Actions the estate of an alleging employees did in- the defendants acted tending defendants con- the decedent die and that spired illegally compensation liability reduce the workers’ allowing employer by the decedent to die are not barred Disability Com- of the Worker’s (MCL 418.131, 17.237[131], pensation 418.827[1]; MSA Act 17.237[827][1]). — — 3. Torts Distress Intentional Infliction of Emotional Wrongful Death. parents may for intentional of a minor maintain an action independent of an action for infliction of emotional distress in the death acts resulted death where the minor. 129 Opinion of the Court Compensation Illegal Employment. — — 4. Workers’ Infants illegally employed An Disability minor is covered the Worker’s Compensation Act. — — Equal 5. Constitutional Law Protection Statutes. attacking party A a classification in economic social welfare legislation equal protection grounds heavy on has a burden of demonstrating basis; that the classification lacks a reasonable if relationship a reasonable exists between the classification and a legitimate interest, equal protection state no denial of exists. T. M. P.J. — — Compensation — 6. Torts Intentional Torts Workers’ Reme- dies. employee may bring employer despite suit An remedy provision Disability Compen- of the Worker’s sation Act where the to have intended the itself, merely leading injury. not the act to the Roger Rapaport, (by Roger Rapaport), A. P.C. A. plaintiffs. *3 Poling (by Moore, Sills, Wooster, & P.C. James Prahler), M. dor defendant. Cy- P.J., and Allen Before: T. M. nar, JJ. Plaintiffs, J.
Cynar, Barnes, Wallace and Norma individually commenced this action and Wallace personal representative Barnes as of the estate of Barnes, Tim son, their their son’s em- ployer coemployees. filed a motion Defendants judgment ground plain- for accelerated on the tiffs’ suit provision was barred Disability Compensation of the Worker’s (WDCA). granted Act The lower court accelerated
judgment I, II, on V, Counts and VI and denied appeal the motion on Counts III and IV. Plaintiffs right judgment as of from the accelerated on I, II, V, Counts and VI. Defendants filed cross- Barnes v Double Seal Glass Opinion op the .Court appeal, arguing that accelerated should granted also have been on Counts III and IV. complaint alleges following Plaintiffs’ facts. Decedent, Barnes, Tim 16-years-old, was illegally without a work employed permit by defendant Double Seal Glass in Genesee Company County. 2, 1978, Coe, On October defendant a foreman at Seal, glass Double ordered three to load employees onto an A-frame cart and then it to move another area. allege Plaintiffs the wheels of the car could each withstand only pounds pressure of and that the employees loaded improperly the cart edge so that the left front weighed the cart 2,460 pounds. loaded, After the cart was Coe and employees three tried unsuccessfully push cart. employees, including decedent, Other upon were called to help push the cart. The cart was immovable because the wheel underneath heaviest load was turned perpendicular to the line During travel. a final attempt push cart, the wheel shattered and the entire load of glass fell glass onto decedent. The part sheared off skull, skull, decedent’s crushed his and tore major arteries.
Several employees became ill violently at sight gruesome injuries. after Immediately event, Coe went into his office for to 20 himself, minutes to compose leaving bleeding under glass. shattered Plaintiffs al- lege that no one called for an ambulance or at- tempted to give decedent medical aid though even emergency help was only about four mintues away. Decedent was put later into the back of an *4 open pickup truck and Joseph’s driven to St. Hos- pital in Flint.
Decedent was admitted to St. Joseph’s Hospital at 10:58 a.m. on October and listed in 129 Opinion of the Court hospital listed decedent as The
critical condition. Ed- Double Seal’s President Doe” because "John hospi- employees Mogford told the other mond they personnel the side that found decedent tal him. one from did not know No of the road and or Norma Barnes Seal notified Wallace Double pronounced dead Decedent was the accident. about at 11:35 killed 2, 1978. Decedent was a.m. on October 1) multiple by: fractures extensive 2) sinus; off frontal lobe above the skull; sheared 3) parietal displacements of frontal bone bone. hospital, at defen- decedent was left
After police up site so that dants cleaned the accident accurately investigate would not be able complaint alleges plaintiffs’ I Count accident. negligence to the accident. defendants’ led that Count negligently alleges II that defendants acted failing give decedent the after the accident prompt have medical care which would saved alleges intentionally III that life. Count failed to act after decedent’s ing defendants
injury, thereby allow- alleges Tim Barnes to die. Count IV that conspired let because decedent die death bene- knew workers’ radically payment fits lower than of disabil- were ity lived, if benefits decedent had because allege dependents. had no defendants Counts V and VI dis- inflicted emotional upon plaintiffs directly, tress individuals. principal issue is whether all of the counts plaintiffs’ complaint are barred remedy provision of the WDCA. wrongful
An action under the death statute1 resulting person in death "Whenever the death or act, default, neglect shall be or and the caused would, neglect or default is such as if death had not have ensued^damages, party injured entitled the to maintain an action and recover *5 71 Barnes v Seal Glass Double Opinion op the Court Co, v derivative. Maiuri Sinacola Construction Supreme the parents Court held that the of a son killed while working for his were barred from bring- wrongful a ing death suit because the son would bringing have been barred from a civil suit be- cause of the remedy provision exclusive of the WDCA: proper plaintiff "Since the cause of action of a under
the death act is a derivative one in that the personal representative of the deceased stands in his required shoes and is to show that the deceased could ensued, have maintained the action if death had not since, case, and in this the decedent would have been from injuries resulting barred because of the exclusive an action for in death remedy provisions of the work- men’s the trial court did not err in granting an accelerated for the defendant.” Maiuri, p supra, 396. Accordingly, presented central issue in this case is whether could have brought civil tort against action if he had sur- vived.
When an is injury compensable under WDCA, exclusive remedy any bars common-law tort action employee 2 Sewell employer. Mfg Bathey Mich thereof, respect case, who, every person then and in such or corporation liable, the ensued, which would have been if death had not damages, notwithstanding shall be liable to an action for person injured, death caused under actions for only although the death shall have been felony. such circumstances as amount in law to All death, death, injuries resulting brought such or shall be 27A.2922(1). 600.2922(1); under this section.” MCL MSA right recovery provided "The to of benefits as in this act shall employee’s remedy against employer. be the used in As 'employee’ person this section and his injured, section 827 includes the personal representatives any person other to whom a claim injury accrues employee, reason of the to or death of the 'employer’ insurer, agent includes his a service to a self-insured Opinion Court (1981). An 732, 736; personal arising out of and "who receives to com- in the course of is entitled employment” 418.301(1); under the act. MCL MSA pensation 17.237(301X1). argue remedy provi-
Plaintiffs
plaintiffs
not
where
applicable
sion of the act
torts. This Court has
have
*6
bring
that an
a civil
recognized
employee may
for
injuries
action
which
employment
arose out of his
but are not covered
Stores, Inc,
Dep’t
the act. See Moore v Federal
lv den 385
556;
(1971),
App
33 Mich
furnish, safety inspections safety advisory or incident services providing workmen’s insurance or to a incident self- employer’s liability servicing 418.131; insured contract.” MCL MSA 17.237(131). Barnes v Double Seal Glass Opinion op the Court Broaddus upon focus whether primarily the es- alleged sence of the tort or physical nonphysical. McKinley panel focused on the nature of alleged Legislature tort and whether intended remedy provision preclude su- McKinley, employee’s recovery. common-law Sewell, pra, 165. In this p recognized Court as "whether inquiry themselves fall purview irrespective of the of the within Sewell, supra, employer’s nature of the acts”. pp 737-738. This approach recognized was recently Slayton and Genson: with, agree begin
"To we with the defendants applicability exclusive-remedy provision of the upon the act turns not the characterization upon asserted cause of action but whether the employee right Stimson, has a to recover benefits under the act. Therefore, supra, p 367. plaintiffs the fact that the suit is based on a discrimination dispositive claim is not which forum should hear the case. A civil suit damages upon based plain- violation of the right tiffs in employment without sex discrimination is and, such, the nature of the tort action concerns a personal Stimson, plaintiff. to the supra, p *7 fn 3. resulting provides compensation The act for disabilities personal from a injury suffered an em- ployee during the course of or employment. her Thus, certain damages elements of in a sex discrimina- may tion suit be barred exclusive-remedy act’s provision, although generally nonphysical tort such as sex discrimination scope falls outside the the act. Stimson, supra, p 366.” Slayton, supra, pp 415-416.
Counts I II plaintiffs’ and complaint allege a cause of action for the negligence of defendants prior to and after the accident. The trial court ruled that these counts were barred by the exclu- Sewell, sive remedy provision. allegation gross negligence was not to sufficient take a result- op Opinion the Court
ing scope outside the of the act. Nowhere do injury plaintiffs argue our that decedent’s did not injury during the course of his employ- arise out of ment. Plaintiffs are barred the exclusive rem- of the WDCA raising from these edy claims in a civil suit. The individual coemployees are also from exempt of decedent under liability 17.237(827X1). Herndon v 418.827(1); MSA MCL Local No UAW lv den case, present
In the Count III states: "55. That defendants their inaction after Barnes, death; Tim proximatley to caused his and, "56. That defendants’ inaction was intentional therefore, allowed Tim Barnes to die.” Count IV states: accident, foreman, "57. Stephen That after minutes, Coe went into his for 10-20 allegedly office himself,
compose thereby intentionally allowing Tim die; Barnes "58. Mogford, Stephen That neither Edmund nor Coe dié; called an ambulance so Tim Barnes would "59. Mogford That Edmund employees three Barnes, drove Tim shock, who bleeding profusely was in hospital to the open pickup the back of an truck, chilly on a morning, October to let Tim Barnes die; management "60. That ordered employ- Double Seal ees to clean the area of the destroy accident police evidence investigators arrived; before "61. That conspired to let Tim Barnes die because knew workers’ death bene- radically fits were less than disability benefits this dependents. case as decedent had no "62. That defendants contributed to the Tim death of purposes Barnes for of business and with callous disre- gard being.” for decedent’s life and well *8 Double Seal Glass Barnes v Opinion of Court plaintiffs’ complaint allege III and IV of Counts defendants, after the injury, did Tim to die thereby allowing not Barnes let him die because workers’ benefits leaving depen- be much less if he died no would dents. Sewell, supra,
In had been remov- ing guards punch press from a machine in safety received his plaintiff injury. Allegations which alone, gross negligence, standing were held insuffi- injury resulting cient to take the therefrom out- Sewell, scope side the act. as in the us, intentional; matter before the action was it this case is also the result was intentional.
Accepting allegations reading as true and light plaintiffs, them most favorable to trial court denied the motion correctly for acceler- ated on III Although Counts and IV. counts are ambiguous, somewhat in fact al- lege First, plaintiffs two intentional torts. allege that defendants as they acted did intending and, second, to die conspired defendants to illegally reduce the workers’ compensation lia- bility by allowing Tim Barnes to die.
Counts V plaintiffs’ and VI of complaint allege a cause of action on their own individually behalf infliction emotional distress. Michigan recognized has inten tional infliction of emotional distress a separate cause of action. Holmes v Allstate Ins Led App (1982); Mich singer Burmeister, 12, 17; Mich (1982); NW2d 558 Warren v June’s Mobile Home Village Sales, Inc, &
NW2d 380 The trial court erroneously plain- assumed that *9 op Opinion the Court un- to decedent’s claim claim was derivative tiffs’ claim for death act. Plaintiffs’ wrongful der the is made of emotional distress infliction behalf, own for a injuries, for their on their own at their son. The at them rather than tort directed and is not covered wrongful death claim is not death MCL 2922 of by § 27A.2922, 600.2922; or the MSA WDCA, 418.131; MSA MCL 17.237(131). ac- by granting The trial court erred and VI. on Counts V celerated 17-18, Ledsinger, supra, pp Court, This and in Warren, supra, p adopted has the standards Torts, 2d, 46, 71-72: pp in 1 set forth Restatement § "(1) outrageous conduct who extreme and One intentionally recklessly causes severe emotional dis- or subject liability is to for such emotional tress to another distress, it, bodily if harm to the other results from and bodily for such harm. "(2) person, conduct is directed at a third Where such subject liability if he or
the actor is recklessly causes severe emotional distress "(a) person’s family to a of such immediate member time, present at the or not such distress who results whether harm, bodily in or
"(b) time, any person present if other who is at the bodily such distress results in harm.” d, Section comment 73 of the Restatement p states: enough "It has not been defendant has acted criminal,
with an intent which is tortious or even that he has or or distress, to inflict intended emotional even that ice’, 'mal- his conduct has been characterized degree aggravation or a which would entitle Liability plaintiff has been outrageous punitive damages tort. for another only has found where the conduct been so character, degree, in extreme in as to and so Seal Glass v Double Barnes Opinion of the Court decency, and to be possible all bounds go beyond atrocious, utterly intolerable regarded the case is one which Generally, community. civilized the average an member the facts to recitation of his resentment community would arouse exclaim, 'Outrageous’. actor, lead him to insults, not extend to mere liability clearly does "The oppressions, or threats, petty annoyances, indignities, other trivialities.” cause of independent VI state
Counts V and dis- of emotional infliction for intentional action is outside the is not derivative tress which *10 act and the WDCA. wrongful death scope granted as improperly was judgment Accelerated VI. Counts V and to that are entitled argue also
Plaintiffs because, as an action bring an minor, should have illegally employed of care from higher standard entitled to been Plaintiffs cite average worker. than Allossery In proposition. for this authority no Service, Inc, App 88 Mich Employers Temporary lv den (1979), 406 Mich 277 NW2d illegally employed that an this Court held and, therefore, was covered WDCA minor compensation. his exclusive was workers’ 17.237(161). 418.161; MCL MSA denies argue further that the WDCA Plaintiffs fatal who suffer equal protection employees dependents no work-related but leave their es- death claims barring civil first for the argument this tates. Plaintiffs raise chal- a constitutional appeal. Ordinarily, time on first for the not be raised lenge may to a statute State Valley v Grand Drewes appeal. time on 776, 788; 308 NW2d Colleges, 106 Mich (1981). However, respond briefly. we T.M. P.J. chal equal protection with an
When confronted legislation, lenge to economic or social welfare heavy bears the bur attacking statute party a rea showing that the classification lacks den of Drewes, supra, p 785. "If a reason basis. sonable governmental between the relationship able exists interest, state no legitimate and a classification results.” Forest v Par equal protection denial (1978). malee, 348, 356; purpose provide of the WDCA is to primary work prompt injured and certain regardless of traditional dependents ers and their depen the worker and his liability tort "so (literally) catastrophe dents survive which may necessary cessation of income occa temporary v H B Sherman McAvoy sions”. 258 NW2d Plaintiffs have failed to showing burden heavy
sustain classification lacks a reasonable basis. was summary, judgment properly accelerated I and II.
granted judg- as to Counts Accelerated III properly ment was denied as to Counts and IV. granted as improperly Accelerated was part to Counts V and VI. We affirm in and reverse in part.
Allen, J., concurred. *11 Burns,
T. M. (concurring). P.J. I fully concur However, the result I by reached feel majority. it is to comment further whether necessary upon torts are covered under the Worker’s Act, Disability Compensation thereby barring separate tort action. that, quite
The
rules
where
majority
correctly
an injury
scope
is within the
of the Worker’s
Act,
Disability Compensation
compensa-
workers’
against
tion benefits are the
both
Double Seal Glass
79
Barnes v
by
T. M.
P.J.
v
coemployes. Szydlowski
employer
Corp,
General Motors
356;
397 Mich
245
26
NW2d
Detroit,
76;
Holody v
(1976);
App
117 Mich
323
(1982). However,
injuries alleged
599
not all
NW2d
covered
necessarily
are
employer
sometimes still allowed to sue
act.
In Moore v Federal Dep’t
court.
Stores,
lv
(1971),
556;
33
80
App
Burns,
T. M.
Concurrence
P.J.
automatically
tort, he is not therefore
outside the
Burgess Holloway
act. In both
v
Construction
App
(1983),
123
505;
Mich
Genson dealt with another
of the inten-
alleged
There,
tional
that
ally
tort issue.
had
workers
employer
"maliciously,
their
had
intention-
wantonly”
withheld from them informa-
concerning
"maliciously,
tion
benzidine and had
wantonly”
assured them that
However,
benzidine would not harm them.
most
everything one
allege an
does is intentional.
order to
tort
outside
plaintiff
allege
must
intended
merely
activity
itself and not
lead-
ing
injury.1
words,
In other
the intentional
governmental
immunity
This same distinction has been made in
government
law. If an intentional
tort
and the
cannot
actions,
justify
governmental
immunity
apply.
its
does not
Smith v
(1983).
Michigan,
App 340;
However,
Artonio v 939; 3 App Div 2d 163 NYS2d (1957), 489 illustrates the distinction that is made. There, that the employer the worker had sealed and made deliberately inoper- presses ative locks on certain steel that the safety plaintiff on. a consequence, worked As the em- ployee injured. though alleges was Even it allegation intentional such an is insuffi- activity, cient by itself to overcome the exclusvie case, provision. this Professor Larson analyzing said: strict,
"If
decision
rather
one must re-
[this
seems]
2
recognized
recovery
Genson
that
the act
is not
limited to
injuries.
coemployee,
accidental
Even if the worker is assaulted
Ballou,
Crilly
he can
recover under the act.
353 Mich
NW2d
(1958);
556, 559;
Corp,
Andrews v General Motors
happen, 2A jab left the chin.” comparable to an intentional Law, 68.13, Larson, Compensation p 13-27. Workmen’s § Larson rule concern- Earlier Professor states torts as ing intentional follows: per- inflicted "Intentional may of a subject son on be made *14 that, damages the in theory for on common-law action action, employer say the will not be heard to such an injury and his intentional act was an 'accidental’ that provisions so under the exclusive * * * But the intentional is committed act. when co-employee the better rule is that an action damages merely not lie be- will occupied supervisory co-employee cause status Id., 68, p 13-1. to the claimant.” relation § Certainly Disability Compensation the Worker’s Act should inten- encourage not be construed to tional torts. which, "It permit would be anomalous to a defendant case, acting in this through
as plaintiff its officer assaulted herein, impunity T say, you can assault with only remedy you have is take Workmen’s ” Garcia Compensation provided you.’ I which (NYC Corp, Gusmack Restaurant 150 NYS2d 1954). Ct, In Kissinger, supra, Court this stated: Barnes v Double Seal Glass T. M. P.J. Legislature "The could not have intended that section of the act be construed to preclude plaintiffs injuries record for suffered in an intentional tort such as the one A before us. substantial portion plaintiffs injuries did not arise out of an employer-employee relationship occurred irre- spective plaintiff of the fact happened that to be em- ployed at factory.” 577-578.
I it feel is a total misconception of the act inquire into only type injury to determine Kissinger if it is covered. As the quote from indi- cates, torts normally do not occur within the Therefore, course of employment. result from the intentional tort do
not arise from the employment.
I do not believe that this Court is straying as far away from these principles as the indi- majority cates.