*1 Beauchamp v Dow Chemical Co BEAUCHAMP v DOW CHEMICAL COMPANY 4,1983, Marquette. Docket No. 69429. Submitted at October —Decided 20, 1984. September wife, Beauchamp, and his Karen filed suit Company, employer, Ronald’s in Iron seeking damages injuries arising Circuit Court out of Ron- Beauchamp’s court, job. ald chemicals on the Payant, J., plaintiffs’ Robert V. held exclusive proceed Disability Compensation under the Worker’s granted summary judgment ap- to defendant. Plaintiffs pealed. Held: correctly granted summary 1. judgment The trial court as to allegations plaintiffs’ complaint the first two in but erred allegation, being it as to the third the distinction allegations the first two do not set forth true intentional torts allegation while the third does set forth true intentional torts. Disability The exclusive of the Worker’s Compensation Act does not bar in circuit court for an injury arising from an intentional tort. granting summary judgment 2. The court also erred in plaintiffs’ allegation. allega- favor of defendant as to tion, involving final That a breach of contract is also outside the scope Disability Compensation of the Worker’s Act. Plaintiffs damages ordinarily are to the entitled available for intentional They infliction of emotional distress and breach of contract. may damages compensable not recover twice for those under compensation. workers’ part. Affirmed in and reversed in Gnus, J., dissented. He all would hold that fall within the exclusive would, therefore, Compensation Disability Worker’s Act and grant summary judgment the trial court’s favor _affirm [1, 2, [3] What conduct is 81 Am Jur compensation duct. ALR3d 1064. Am Jur Workmen’s 2d, References Workmen’s act willful, intentional, 2d, provision authorizing for Points in Headnotes Compensation or deliberate within workmen’s § §§ action 58. such con- exception rejects "intentional torts” He defendant. remedy provision of the act. *2 Compensation — — — Reme- Torts Workers’ 1. Torts Intentional dies. against employer despite may bring employee . his the suit An Disability Compen- remedy provision of the Worker’s exclusive employer alleged the the to have intended Act where sation itself, merely leading injury; injury the the act to the of the act does not bar injury arising an intentional tort for an from circuit court (MCL418.131; 17.237[131]). MSA — — — 2. Torts Reme- Torts Workers’ Intentional dies. injury allege employer employee must that his intended the An leading injury activity in order itself and not the allege outside the exclusive. an intentional (MCL Disability Compensation provision of the Worker’s 418.131; 17.237[131]). MSA Remedy Compensation — — Con- 3. Workers’ Exclusive Provision Employment — tracts Breach of Contract. physical by employee for and an his A claim damages employer’s alleged injuries by created the mental employment contract be classified as a breach of an cannot meaning injuries the of the Work- claim for industrial within Disability Compensation Act and is not barred er’s (MCL 418.131; exclusive-remedy MSA of the act 17.237[131]). Remedy — Compensation — Provision In- Workers’ Exclusive Torts. tentional separate exception remedy provision of the A to the exclusive Disability Compensation Act has not been created for Worker’s torts; proper applicabil- focus in cases where the ity whether of the exclusive is raised is on injuries purview of the themselves fall within the acts; employer’s employee’s irrespective of the nature following purview if the three fall within the of the act (1) questions can be in the affirmative: Were answered present liability time of the conditions of under the act at the (2) seeking employee’s injury?; employee to recover Is the employee’s personal injuries?; Is the suit for v Dow Chemical Co (MCL employer-employee relationship? 418.131; 17.237[131]). MSA Polich) (by Roy Polich, Steve J. PC. P. plaintiff. (by
McNeil, Mouw, Celello & Torreano John A. Torreano), for defendant. R. P.J., Before: M. and J. H. Gillis Maher, JJ.
Gribbs, appeal right Plaintiffs as of from Per Curiam. the trial court’s order defendant’s motion summary judgment pursuant to GCR 117.2(1).1Plaintiffs had sued defendant in circuit damages arising court for from Beauchamp’s exposure job. to chemicals on the complaint, plaintiffs alleged their "That defen- * * * intentionally misrepresented dant and fraud- *3 ulently potential danger plaintiff, concealed the Beauchamp’s, physical being expo- Ron well from * * * (2) sure to said chemical[s]”; "That defendant intentionally plaintiff, assaulted Ronald Beau- champ, exposing dangerous him to said chemicals knowledge without his consent”; and/or "That * * * defendant committed the extreme and outra- geous exposing plaintiff, Beauchamp, act of Ronald * ** to said chemicals” and "That defendant had knowledge dangerous potential of to said and, therefore, chemicals intended to inflict * * * plaintiff with severe emotional distress”; and plaintiff, Beauchamp’s, "As con- employment, Company, tract of agreed provide working safe conditions” and * * * allowing plaintiff exposed "That to be to said employment chemicals was a breach of said con- 1 should, properly, Defendant’s motion more have been for acceler 116.1(2). judgment pursuant ated to GCR App 140 Mich
tract”. The trial court held that sive exclu- pursuant remedy Worker’s Disabil- ity Compensation Act, 418.131; MCL MSA 17.237(131), granted summary judgment defendant. correctly granted
We believe that the trial court summary judgment as to the first two pair. but erred in it as to the second This holding premised understanding on our that an allegation of a "true” intentional tort is not within the exclusive of the WDCA. In so interpreting join position WDCA, we in the Judge expressed T. M. as in his concur- Burns, Co, Inc, rence Barnes v Double Seal Glass App 66, 78; Mich panels Various of this Court have held that of the WDCA does not injury arising bar in circuit court for an Henry from an intentional tort. Seals v Ford Hos pital, (1983); 329; Kissinger Mannor, 285 NW2d (1979); Div, Broaddus v Ferndale Fastener Ring Works, Screw
689 as However, lv den 403 Judge discussed concurrence Burns’ merely plaintiff alleged Barnes, because the has what he claims to be an tort does not automatically mean that is therefore Bofors-Lakeway, outside the Mich Inc, act. Genson v instance, NW2d 507 For against employer, injured in a suit em ployee may claim that intentionally injured gravamen him when the the suit is a claim of assault co-workers *4 acting independently employer. Unless the intended the alleges employee employer that the employee, complaint co-workers to assault the the alleges only employer in essence that the 703 v Dow Chemical Co Opinion op the Court negligent permitting the assault. Such a claim properly belongs remedy pro- within the exclusive Burgess Holloway vision of the WDCA. See v App Co, 123 Mich Construction 332 NW2d (1983), McKinley Holiday Inn, 584 and v 115 Mich 160; 320 329 den NW2d lv allege "In order to an intentional tort allege outside the employer the must that the injury intended the and not itself activity leading injury.” supra, Barnes, the applying this the standard to allegation case, made we find that the first alleges only intentionally that defendant concealed potential danger the plaintiff. to chemicals from alleged,
While an intentional act
is
an
allegation
intentional
not. There
no
is
intentionally
danger
defendant
concealed
with
plaintiff.
injure
the intent
The same criticism
applies
allegation.
to the second
While an assault
plaintiff’s specific description
tort,
anis
intentional
of
exposure
"assault”
it to a
reduces
claim intentional
chemicals without
knowledge
allega-
However,
or
consent.2
third
clearly alleges
by
tion
both an
act
intentional
injury
by
and an intentional
caused
allegation properly alleges
act. Because this
tort,
we hold that
it is not barred
the the WDCA
may
supported
brought
holding
be
circuit court. This
prior
Court.
decisions of this
Broad-
supra,
Slayton Michigan
dus,
Host, Inc,
NW2d
allegation
Plaintiffs’ final
is a count of breach of
contract. This
like a claim of sex discrimi-
Genson, supra,
rejected
Almost identical claims were
Cole
lv
den
"Thus, we are struck with the obvious that the Work- Compensation designed men’s compensate physical and mental injuries. work-related "A plaintiff’s review of various claims in his civil suit against defendant reveal a physical combination of or injuries mental damages created defendant’s alleged breach of employment contract for violation governing system. merit It beyond question that if falling claims category, within this latter proved, cannot be injuries classified as industrial meaning within the Act. Workmen’s While alleged injuries fatigue for muscle depression and mental fall within the act as his exclu- sive remedy, plaintiff right has a judicial review of his claims for compensation, additional improper dis- charge, and violation of the merit-system rules. The compensation distinction between for industrial arising employment relationship from the (Foot- which are contractual nature is undeniable.” omitted.) *6 Affirmed in part part. and reversed (dissenting). Gillis, J. H. J. I Although dissent. artfully appear otherwise, drafted complaint seeks for personal which fall within the exclusive remedy of the Worker’s Disability Compensation Act, MCL 17.237(131). 418.131; MSA I would therefore affirm the trial grant court’s of summary judgment favor of the defendant.
I my base conclusion in upon skepticism my regarding the so-called "intentional torts” excep- tion to the exclusive
WDCA. While I recognize
support
exists in
some of the decisions of this Court
for such an
Mannor,
Kissinger exception,
92 Mich
"We cannot
Legislature clearly
either that
separate
intended a
exception for intentional
torts not
falling within
exceptions
public
one of the other
or that
policy
clearly requires
so
justify
such a result as to
our
legal
creation of a
fiction. We
sepa-
decline to create a
exception
rate
intentional
the exclusive
Genson, p
torts.”
478.
proper
focus in cases where the applicability
of the exclusive remedy provision is raised is on
" 'whether
the injuries
themselves
fall
within
[sic]
purview
irrespective
of the nature
of the employer’s
Barnes v Double Seal
”.
acts’
Co, Inc,
Glass
66,
(1983), citing Sewell v Bathey
Manufacturing
732,
103 Mich App
737-738;
More I specifically, would reaffirm the questions Works, Neal v Roura Iron proposed in Inc, Mich App 275; 238 NW2d 837 as the proper method to resolve this issue:
"(1) Were the 'conditions of liability under the act’ present at the time of injury?, Is seeking to personal recover injuries?, and Is suit the employer-employee Neal, relationship?” p *7 test,
Under it is clear that even the third and fourth counts of the plaintiffs’ complaint are barred by the exclusive remedy provision. Obvi- ously, the suit the employer-em- ployee relationship. It that, is also clear even under the breach of contract plaintiffs are seeking to recover damages personal within the contemplation of the WDCA. Under counts, both seek damages because the claimant "has been physically mentally af- fected” by the chemical exposure, "causing numer- ous bodily malfunctions”. conclusion, I repeat my observations at
outset. Plaintiffs’ complaint nothing more than v Dow Chemical Co H. J. attempt a clever and artful to avoid the exclusive remedy provision’s bar to the maintenance aof personal civil action. Plaintiffs seek injuries which arose out of and in the course of the employment, judgment and thus I would affirm the trial court. notes Beauchamp v Dow Chemical Co We concur analysis and would reverse the trial court as to counts III and IV of complaint. Plaintiffs are entitled to the damages available ordinarily infliction of contract, emotional distress and breach al- though they may recover twice for those dam- ages compensable compensation. workers’