Bednarski v. General Motors Corp., 276 N.W.2d 624

Bednarski v. General Motors Corp.

276 N.W.2d 624

Mich. Ct. App.

1979

Check Treatment

Per Curiam.

Plaintiff, the administratrix of her husband’s estate, appeals from the granting of *484 summary judgment for defendant, her late husband’s employer. Plaintiff commenced suit by filing this wrongful death action in circuit court. She also petitioned for hearing before the Workmen’s Compensation Bureau. Only the first action is now before the Court. Her complaint, as amended, alleged that her husband died as a result of lung cancer which physicians who were the agents and employees of defendant failed to detect or reveal to the decedent during a series of physical examinations and X-ray examinations in 1972-1975. Defendant filed a motion for summary judgment 1 for the reason that the sole and exclusive remedy available to the estate was workmen’s compensation benefits.

Where an employee’s injury is within the scope of the Worker’s Disability Compensation Act, workmen’s compensation benefits are the exclusive remedy available to the employee against the employer. MCL 418.131; MSA 17.237(131), Solakis v Roberts, 395 Mich 13, 20; 233 NW2d 1 (1975), Szydlowski v General Motors Corp, 397 Mich 356, 358; 245 NW2d 26 (1976). An action is precluded by the exclusive remedy provision of the act if it seeks recovery for a personal injury arising out of and in the course of employment and if the suit is based upon the employer/employee relationship between the parties. MCL 418.301; MSA 17.237(301), Neal v Roura Iron Works, Inc, 66 Mich App 273, 275; 238 NW2d 837 (1975), lv den 396 Mich 841 (1976). The act does not bar actions against an employer by an employee if the employ *485 ment relationship subsisting between them is only incidentally related to a claim resting on another basis such as vendor/vendee relationship. Panagos v North Detroit General Hospital, 35 Mich App 554; 192 NW2d 542 (1971). Under such circumstances the courts have jurisdiction to determine the rights and liabilities of the parties. Modeen v Consumers Power Co, 384 Mich 354, 360-361; 184 NW2d 197 (1971), Bonney v Citizens’ Mutual Automobile Insurance Co, 333 Mich 435, 440; 53 NW2d 321 (1952).

Plaintiffs original complaint and first amended complaint assumed the form of a wrongful death action based on medical malpractice; the fact that the decedent had been defendant’s employee was mentioned, but there was no statement that decedent’s injury arose out of or in the course of employment or that the action was based on the employment relationship. If such was nonetheless the situation, plaintiffs exclusive remedy is furnished by the Worker’s Disability Compensation Act. Szydlowski v General Motors Corp, supra. The pleadings appear to have been framed to avoid the Szydlowski holding. The mere omission of assertions from the pleadings which would reveal the applicability of the exclusive remedy provision cannot confer jurisdiction on the courts. St Paul Fire & Marine Insurance Co v Littky, 60 Mich App 375, 378; 230 NW2d 440 (1975). We are currently not in a position to say whether Szydlowski is distinguishable from the instant case on the basis of the actual underlying facts.

We note that plaintiff has filed a workmen’s compensation claim based on the same facts as the instant case. As acknowledged in plaintiffs appellate brief, the Workmen’s Compensation Bureau is the appropriate forum to consider this claim. MCL *486 418.841; MSA 17.237(841), Herman v Theis, 10 Mich App 684, 688-689; 160 NW2d 365 (1968), lv den 381 Mich 772 (1968), St Paul Fire & Marine Insurance Co v Littky, supra, at 378, Szydlowski v General Motors Corp, supra, at 358-359. Defendant also has asserted by way of affidavit in the trial court that decedent was defendant’s employee when he received medical services from it and that his exclusive remedy was under the Worker’s Disability Compensation Act and that "the medical services rendered [decedent] were rendered at his place of employment” and that "all services rendered were in the course of decedent’s employment * * * J5

If decedent’s injury arose from his working conditions, then we would agree that plaintiffs exclusive remedy is workmen’s compensation benefits, and the Szydlowski decision is controlling. However, if the Workmen’s Compensation Bureau determines that the decedent’s injury was not compensable under the act, the plaintiff may then pursue her common-law remedy in a tort action in circuit court.

"When the employer’s fault takes the form of negligence in not disclosing to the employee the existence of a noncompensable disease discovered in the course of an examination in the company clinic, most cases allow a tort action on the theory that the injury is in no sense work-connected.” 2A Larson, Workmen’s Compensation Law, § 68.35, p 13-39.

To conclude otherwise would leave a plaintiff with a cognizable tort claim, which is nevertheless outside the Worker’s Disability Compensation Act, without remedy. Herman v Theis, supra, Panagos v North Detroit General Hospital, supra, accord, *487 Wojcik v Aluminum Company of America, 18 Misc 2d 740; 183 NYS2d 351 (1959).

Accordingly, we reverse and remand to the circuit court to hold in abeyance pending the outcome of the workmen’s compensation proceedings. If the board finds the injury compensable, defendant may have its accelerated judgment in this case. If the appeal board finds that it does not have jurisdiction because the wrong complained of is not an injury compensable under the act, this case may proceed. Costs to abide final determination.

Notes

The motion should have been denominated a motion for accelerated judgment. GCR 1963, 116.1(2), St Paul Fire & Marine Insurance Co v Littky, 60 Mich App 375, 377; 230 NW2d 440 (1975). But since no prejudice to the plaintiff is alleged or apparent, we treat the motion as one for accelerated judgment. Pease v North American Finance Corp, 69 Mich App 165, 167; 244 NW2d 400 (1976), lv den 399 Mich 883 (1977).