273 N.W.2d 487 | Mich. Ct. App. | 1977
COWAN
v.
FEDERAL-MOGUL CORPORATION
Michigan Court of Appeals.
Buell A. Doelle, for plaintiffs.
Dickinson, Wright, McKean, Cudlip & Moon (by John Corbett O'Meara and Timothy H. Howlett), for defendants.
Before: D.C. RILEY, P.J., and BASHARA and P.R. MAHINSKE,[*] JJ.
*621 PER CURIAM.
Plaintiffs appeal a partial summary judgment dismissing claims sounding in tort, conspiracy and loss of companionship.
Upon careful examination, we affirm. Concerning plaintiff Joseph Cowan's claim of intentional infliction of emotional distress brought against defendant Federal-Mogul Corporation, Szydlowski v General Motors Corp, 397 Mich. 356; 245 NW2d 26 (1976), controls. Its mandate is clear: Jurisdiction to determine the compensability of injuries arising out of and in the course of employment is reposed initially in the Workmen's Compensation Bureau. MCL 418.841; MSA 17.237(841). Thus the trial court acted properly on this issue, although GCR 1963, 116.1(2) (lack of subject-matter jurisdiction) is the more appropriate ground for dismissal.
Plaintiff's corresponding claim against defendant insurer also fails. The unrebutted affidavit presented by defendant demonstrated that, according to his own physician, plaintiff was not disabled for any occupation and, thus, was not entitled to the waiver of premium payments. Moreover, the affidavit revealed that defendant insurer based its demand for repayment of accident and sickness benefits on an assignment executed by plaintiff, in conformance with the policy provision excluding such benefits for injuries compensable under the Workers Disability Compensation Act. Where, as here, plaintiff did not rebut this affidavit by any evidence before the court, summary judgment is proper. Durant v Stahlin, 375 Mich. 628, 638-639, 655-656; 135 NW2d 392 (1965), Rizzo v Kretschmer, 389 Mich. 363, 372; 207 NW2d 316 (1973).
For similar reasons, the lower court correctly dismissed the conspiracy charge. Plaintiff failed to allege facts supportive of his claim; instead, he merely asserted bad faith and claimed that defendants' *622 contradictory positions regarding the compensability of plaintiff's disability demonstrated a conspiracy. Absent allegations of supporting facts, dismissal by way of summary judgment is appropriate. Valentine v Michigan Bell Telephone Co, 388 Mich. 19, 30; 199 NW2d 182 (1972), Pursell v Wolverine-Pentronix, Inc, 44 Mich. App. 416, 422; 205 NW2d 504 (1973). Moreover, the rule has been applied in cases alleging a conspiracy. Chilton's, Inc v Wilmington Apartment Co, 365 Mich. 242, 248-249, 250-251; 112 NW2d 434 (1961), Greer v Parks, 300 Mich. 492, 497; 2 NW2d 476 (1942).
With regard to plaintiff wife's derivative claim, we hold that aligned as it is with the unsuccessful claims of her husband, it too must fail.
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
