Harris v. VernierHarris v. Vernier
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Lead Opinion
Plaintiff appeals as of right from the trial court’s order granting summary disposition for defendant pursuant to MCR 2.116(C)(4) (lack of subject-matter jurisdiction) and dismissing plaintiff’s third-party no-fault claim. We affirm.
The essential facts are not in dispute. In the early morning of September 22, 1995, the parties were driving separate vehicles when they were involved in a collision in the parking lot of a Ford Motor Company plant. Plaintiff and defendant were employees of Ford, both having finished their shifts at the plant just before the collision. Plaintiff brought
On appeal, plaintiff argues that the trial court erred in concluding that the exclusive remedy provision of the WDCA, when asserted as a defense to a third-party no-fault claim brought in the circuit court, constitutes a challenge to the court’s subject-matter jurisdiction over the claim. Plaintiff claims that defendant’s assertion of the exclusive remedy provision is more properly characterized as a waivable affirmative defense based on immunity granted by law. We review a trial court’s decision on a motion for summary disposition based on MCR 2.116(C)(4) de novo to determine if the moving party was entitled to judgment as a matter of law, or if affidavits or other proofs demonstrate there is an issue of material fact. MCR 2.116(I)(1); Herbolsheimer v SMS Holding Co, Inc, 239 Mich App 236, 240; 608 NW2d 487 (2000). Further, whether a trial court had subject-matter jurisdiction over a claim is a question of law that is reviewed de novo. Specht v Citizens Ins Co of America, 234 Mich App 292, 294; 593 NW2d 670 (1999).
The exclusive remedy provision of the wdca includes, in pertinent part:
(1) The right to the recovery of benefits as provided in this act shall be the employee’s exclusive remedy against the employer for a personal injury or occupational disease. The only exception to this exclusive remedy is an intentional tort. [MCL 418.131(1) ; MSA 17.237(131)(1).]
The underlying rationale for limiting an employee’s remedies is as follows:
Under the wdca, employers provide compensation to employees for injuries suffered in the course of employment, regardless of fault. “In return for this almost automatic liability, employees are limited in the amount of compensation they may collect from their employer, and, except in limited circumstances, may not bring a tort action against the employer.” [Herbolsheimer, supra at 240 (citations omitted).]
The exclusive remedy provision limits an employee’s recovery when the employee “receives a personal injury arising out of and in the course of employment by an employer who is subject to this act at the time of the injury.”
In the present case, plaintiff contends defendant waived the defense that plaintiffs automobile negligence claim is barred by the exclusive remedy provision of the wdca because he failed to raise it as an affirmative defense. MCR 2.111(F) provides, in part:
(F) Defenses; Requirement That Defense Be Pleaded.
* * *
(2) Defenses Must Be Pleaded; Exceptions. A party against whom a cause of action has been asserted by complaint, cross-claim, counterclaim, or third-party claim must assert in a responsive pleading the defenses the party has against the claim. A defense not asserted in the responsive pleading or by motion as provided by these rules is waived, except for the defenses of lack of jurisdiction over the subject matter of the action, and failure to state a claim on which relief can be granted.
* * *
(3) Affirmative Defenses. Affirmative defenses must be stated in a party’s responsive pleading, either as originally filed or as amended in accordance with MCR 2.118. Under a separate and distinct heading, a party must state the facts constituting
(a) an affirmative defense, such as contributory negligence; the existence of an agreement to arbitrate; assumption of risk; payment; release; satisfaction; discharge; license; fraud; duress; estoppel; statute of frauds; statute of limitations; immunity granted by law; want or failure of consideration; or that an instrument or transaction is void, voidable, or cannot be recovered on by reason of statute or nondelivery;
(b) a defense that by reason of other affirmative matter seeks to avoid the legal effect of or defeat the claim of the opposing party, in whole or in part;
(c) a ground of defense that, if not raised in the pleading, would be likely to take the adverse party by surprise.
A party that fails to raise an affirmative defense as required by MCR 2.111(F) waives the defense. Travelers Ins Co v Detroit Edison Co, 237 Mich App 485, 494-495; 603 NW2d 317 (1999).
Michigan courts have failed to address specifically the issue whether a party’s assertion of the exclusive remedy provision of the wdca constitutes a challenge to a court’s power to decide a claim in light of the Bureau of Worker’s Compensation exclusive subject-matter jurisdiction over worker’s compensation claims or whether the defense is more properly characterized as a grant of immunity or other type of waivable affirmative defense. We conclude that defendant did not waive any defense based on the exclusive remedy provision when he did not raise it in his responsive pleading. We hold that a party’s assertion of the exclusive remedy provision of the wdca is a direct challenge to the trial court’s subject-matter jurisdiction, not within the scope of the waiver rule in MCR 2.111(F).
As previously stated, the exclusive remedy provision limits an employee’s right to recover against his employer or a coemployee for a personal injury arising out of the course of his employment to the benefits available under the wdca.
We are mindful of prior cases that have made reference to the exclusive remedy provision of the wdca as an “affirmative defense” or “immunity.” See Kidder v Miller-Davis Co, 455 Mich 25, 54-55; 564 NW2d 872 (1997) (Kelly, J., dissenting); Benson v Dep’t of Mgt & Budget, 168 Mich App 302, 304; 424 NW2d 40 (1988); Berger, supra at 217; Drewes v Grand Valley State Colleges, 106 Mich App 776, 784; 308 NW2d 642 (1981). However, those cases are inapposite to the present issue. Those cases did not squarely determine whether a party’s assertion of the exclusive remedy provision of the wdca constitutes a challenge to the trial court’s subject-matter jurisdiction over a claim or constitutes an affirmative defense to the claim. We do not find the loose references within those cases to the terms “affirmative defense” and “immunity” controlling of the present issue.
Furthermore, we do not deny that the exclusive remedy provision, by generally barring any recovery other than that which is provided under the WDCA, may be viewed as providing “immunity” from suit. The term “immunity” is generally defined to mean “exception from obligation, service, duty, liability, or prosecution.” Random House Webster’s College Dictionary (1997). A party could elect to assert the provision as an “affirmative defense” in its responsive pleading. An affirmative defense being a defense that does not challenge the factual merits of a plaintiff’s prima facie case, but which otherwise denies relief. Stanke v State Farm Mut Automobile Ins Co, 200 Mich App 307, 312; 503 NW2d 758 (1993). Therefore, we recognize that, if timely asserted under MCR 2.111(F), the exclusive remedy provision may serve as a valid affirmative defense to a claim in conjunction with a motion for summary disposition pursuant to MCR 2.116(C)(7). However, because a defense based on the exclusive remedy provision most specifically challenges whether a circuit court has the power to resolve a claim, we conclude that the defense is jurisdictional and need not be asserted in a responsive pleading to avoid waiver. MCR 2.111(F)(2).
In reaching that conclusion, we draw guidance from the interpretation of worker’s compensation laws from other jurisdictions. Most jurisdictions have not squarely addressed the issue. However, the majority of those that have treat a party’s assertion of the exclusive remedy provision as a challenge to a trial court’s subject-matter jurisdiction. In Walters v Modern Aluminum, 699 NE2d 671, 673
We note that defendant failed to raise his defense based on the exclusive remedy provision of the WDCA until more than IV2 years after the filing of plaintiffs complaint. We consider such an assertion of the defense dilatory under the circumstances. We also note, however, that Michigan has long recognized that actions for injuries incurred as a result of a coemployee’s negligence and arising out of the scope of employment are barred by the exclusive remedy provision of the WDCA. Berger, supra at 213-214; Dixon, supra. Moreover, a defense of lack of subject-matter jurisdiction may be raised at any time. MCR 2.116(D)(3); Winters, supra; see MCR 2.111(F)(2). Subject-matter jurisdiction cannot be granted by implied or express stipulation of the litigants. Winters, supra at 79. Likewise, a defense of lack of subject-matter jurisdiction cannot be waived by a litigant. Id. Consequently, defendant did not waive his defense based on “the exclusive remedy provision when he failed to include it in his answer to plaintiff’s complaint or by way of amendment.
Given our decision that the assertion of the exclusive remedy provision constitutes a defense of lack of subject-matter jurisdiction, we turn to the question whether the trial court properly dismissed plaintiff’s claim under the no-fault act,
A trial court is not automatically divested of jurisdiction over a no-fault claim under the exclusive remedy provision by virtue of the fact that a plaintiff was injured during the course of his employment. See Great American Ins Co v Queen, 410 Mich 73, 89-91; 300 NW2d 895 (1980); Mathis v Interstate Motor Freight System, 408 Mich 164, 179, 183; 289 NW2d 708 (1980); Specht, supra at 295. This Court has held that, when an employee is injured in a motor vehicle accident during the course of his employment, entitlement to compensation for injuries is governed by the no-fault act and the wdca. Id. In Specht, supra, this Court recognized that the no-fault act and the WDCA exist independently of one another:
“The Worker’s Disability Compensation Act (wdca) [MCL 418.101 et seq.;MSA 17.237(101) et seq.] and the no-fault insurance act [ MCL 500.3101 et seq.; MSA 24.13101 et seq.] are complete and self-contained legislative schemes addressing discrete problems. Neither act refers expressly to the other.” Mathis v Interstate Motor Freight System, 408 Mich 164, 179; 289 NW2d 708 (1980). “The WDCA provides a substitute for common-law tort liability founded upon an employer’s negligence . ...” Id. On the other hand, “[t]he no-fault act provides a substitute for common-law tort liability based upon the ownership or operation of a motor vehicle.” Id. [Specht, supra at 294-295.]
See Herbolsheimer, supra at 240, quoting Mathis, supra at 179, and citing Clark v United Technologies Automotive, Inc, 459 Mich 681, 686; 594 NW2d 447 (1999). Mathis consolidated four cases, each of which involved claims for no-fault benefits against employers’ no-fault insurers5 for injuries that arose out of the course of the employees’ employment. Mathis, supra at 176-178. In that case, our Supreme Court held that an employee injured in the course of his employment while occupying a motor vehicle owned by his employer is entitled to collect no-fault benefits from his employer’s no-fault insurer and is not limited to worker’s compensation benefits as his sole remedy. Id. at 183. In Great American, supra, the Supreme Court allowed an employee who was injured by a third party who was not his employer or coemployee to recover no-fault benefits from his employer’s no-fault insurer, with a setoff for worker’s compensation benefits received by the employee. Great American, supra at 89-91. Specht involved a plaintiff employee’s suit for no-fault benefits against his own no-fault insurer. Specht, supra at 294.
Significantly however, no case has allowed a plaintiff employee to recover no-fault benefits against a coemployee or an employer not acting as a no-fault self-insurer6 for personal injury suffered during the course of employment. In fact, the Supreme Court qualified its holding in Great American, supra, to exclude such circumstances, stating, “An employee’s common-law right to proceed in tort against persons other than his employer or co-workers was not altered by the worker’s compensation act.” Id. at 89 (emphasis added). The dissent’s reliance on
Plaintiff’s present claim against her coemployee defendant is squarely within the category of claims excluded under the plain language of the WDCA.9 It is undisputed that plaintiff and defendant
Under the undisputed facts, plaintiff’s claim is barred by the exclusive remedy provision of the wdca. Accordingly, the trial court properly dismissed the claim for lack of subject-matter jurisdiction.10
Affirmed.
Whitbeck, J., concurred.Notes
That section provides: “A person remains subject to tort liability for noneconomic loss caused by his or her ownership, maintenance, or use of a motor vehicle only if the injured person has suffered death, serious impairment of body function, or permanent serious disfigurement.”
While we recognize that the wdca is generally viewed as a substitute for common-law tort actions and this case may be distinguished because it involves a statutory cause of action under Michigan’s no-fault laws, we note that the wdca merely refers to personal ir\juries arising out of and in the course of employment, not common-law causes of action.
Any dispute or controversy concerning compensation or other benefits shall be submitted to the bureau and all questions arising under this act shall be determined by the bureau or a worker’s compensation magistrate, as applicable. The director may be an interested party in all worker’s compensation cases in questions of law.
Generally, circuit courts have jurisdiction over all civil claims.
Circuit courts have original jurisdiction to hear and determine all civil claims and remedies, except where exclusive jurisdiction is given in the constitution or by statute to some other court or where the circuit courts are denied jurisdiction by the constitution or statutes of this state. [See also Const 1963, art 6, § 13.]
It is relevant to note that, although plaintiff Mathis actually brought suit against his employer, the suit was filed against the employer in its capacity as a self-insurer under the no-fault act Mathis, supra at 176, 183. Our Legislature created the category of self-insurers,
See n 5, supra (discussing Mathis, supra, in which the plaintiff sued his employer in the employer’s capacity as a self-insurer under the no-fault act).
As already discussed, it is well settled that the exclusive remedy provision applies equally to recovery against coemployees. Berger, supra.
We note that our holding in this case is perfectly consistent with Great American, supra, Mathis, supra, and Specht, supra, and the subrogation provision of the wdca,
We recognize the line of cases that hold that a trial court may have jurisdiction over a claim despite the application of the wdca where the employer and employee relationship is “unrelated to the cause of action,” see Jones v General Motors Corp, 136 Mich App 251, 254-255; 355 NW2d 646 (1984) (considering whether the plaintiffs husband’s death was caused by strenuous manual labor in connection with Iris employment and, thus, was subject to the exclusive remedy provision of the wdca), or merely “incidentally involved” in the cause of action, see Specht, supra at 298 (holding the circuit court had jurisdiction to determine whether the defendant insurer was liable to the plaintiff who was injured while driving her own automobile during the course of her employment where the plaintiffs “employment relationship was, at best, only tangentially involved”); Fletcher v Harafajee, 100 Mich App 440, 443; 299 NW2d 53 (1980) (holding that the plaintiff city of Flint police officer who received treatment from city of Flint medical personnel after being injured while on duty could sue the personnel despite the parties’ status as coemployees because the parties’ employment relationship was only incidentally related to the plaintiffs medical malpractice claim); Peoples v Chrysler Corp, 98 Mich App 277, 281-284; 296 NW2d 237 (1980) (holding that the plaintiff employee’s tort action against the defendant employer was barred by the exclusive remedy provision of the wdca because the employee/employer relationship was not entirely unrelated or only incidentally involved in the plaintiffs claim for injuries he suffered while operating the defendant’s machine); Neal v Roura Iron Workers, Inc, 66 Mich App 273, 277-278; 238 NW2d 837 (1975) (holding that the plaintiff employee’s tort action against the defendant employer was barred by the exclusive remedy provision of the wdca because the accident that resulted in the plaintiff’s injuries could not have happened but for his employment with the defendant and, thus, the suit was not entirely unrelated or only incidentally related to the parties’ employee/employer relationship); Panagos v North Detroit General Hosp, 35 Mich App 554, 558-559; 192 NW2d 542 (1971) (holding that the plaintiff hospital employee who suffered an injury to her mouth while eating in the defendant hospital’s cafeteria could bring a common-law negligence claim because the employee/employer relationship was unrelated to the cause of action). Here, we cannot say the parties’ relationship as coemployees is unrelated to plaintiffs cause of action or merely incidentally involved. Plaintiff alleges she suffered injury during the course of her employment as a result of the acts of a coemployee, which places her claim plainly within the purview of the wdca.
Our holding does not bar plaintiff from seeking worker’s compensation benefits from her employer.
Dissenting Opinion
(dissenting). I respectfully dissent. ! disagree with the majority’s conclusion that the worker’s compensation exclusive remedy provision, when asserted, as a defense to a third-party no-fault claim brought in the circuit court, constitutes a defense challenging the circuit court’s subject-matter jurisdiction. In this specific context, I conclude that the exclusive remedy provision is properly understood as an affirmative defense. Because defendant failed to raise the issue as an affirmative defense in his responsive pleading, the defense has been waived. Accordingly, I would reverse the trial court’s grant of summary disposition in favor of defendant.
i
In this case, we are asked to decide whether the worker’s compensation exclusive remedy provision should be considered as an affirmative defense or as an attack on the circuit court’s subject-matter jurisdiction.1 The majority concludes that
In Mathis v Interstate Motor Freight System, 408 Mich 164, 174-175, 183; 289 NW2d 708 (1980), our Supreme Court held that an employee injured in a motor vehicle accident in the course of his employment is not limited to worker’s compensation benefits as his sole remedy, but may also collect no-fault insurance benefits. The Court rejected the defendants’ argument that the worker’s compensation exclusive remedy provision barred the plaintiffs from pursuing actions for damages under the no-fault act, because “ [t]he Worker’s Disability Compensation Act (wdca) and the no-fault insurance act are complete and self-contained legislative schemes addressing discrete problems.” Id. at 179. Following Mathis, our Supreme Court decided Great American Ins Co v Queen, 410 Mich 73, 86; 300 NW2d 895 (1980), which likewise held that a plaintiff injured in a motor vehicle accident in the course of his employment may, in certain circumstances, bring both a personal injury claim in the circuit court and a claim for worker’s compensation benefits under the wdca:
When an employee is injured in a motor vehicle accident in the course of his employment, his entitlement to compensation for his injuries, from all sources, is governed by the worker’s compensation act and the no-fault act. His rights and entitlements under each act are affected by his being injured under circumstances which make him subject to the provisions of the other. [Emphasis in original.]
Logically, the worker’s compensation exclusive remedy provision can only divest the circuit court of subject-matter jurisdiction over a plaintiff’s claim if the provision uniformly does so in all cases of the same nature. If the provision merely defeats a plaintiff’s claim in particular factual circumstances, then it should be viewed as an affirmative defense, rather than a defense attacking the circuit court’s subject-matter jurisdiction. Our Supreme Court has defined subject-matter jurisdiction as
“the right of the court to exercise judicial power over that class of cases; not the particular case before it, but rather the abstract power to try a case of the kind or character of the one pending; and not whether the particular case is one that presents a cause of action, or under the particular facts is triable before the court in which it is pending, because of some inherent facts which exist and may be developed during the trial.” [Bowie v Arder, 441 Mich 23, 39; 490 NW2d 568 (1992), quoting Joy v Two-Bit Corp, 287 Mich 244, 253-254; 283 NW 45 (1938).]
See also Campbell v St John Hosp, 434 Mich 608, 613-614; 455 NW2d 695 (1990).
Admittedly, if the exclusive remedy provision had been properly raised as a defense in this case, it would bar plaintiff’s claim because defendant was plaintiff’s coemployee at the time of the accident. “An action against a coemployee for personal injuries is barred if both employees were acting in the course of their employment at the time the injury occurred.” Schwartz v Golden, 126 Mich App 790, 793; 338 NW2d 218 (1983). However, characterization of the exclusive remedy provision as an affirmative defense or as a jurisdictional matter cannot depend on the facts of any one particular case. The proper inquiry is whether the circuit court has the abstract power to entertain third-party no-fault claims brought by a plaintiff injured in a motor vehicle accident in the course of his employment. Given the decisions in Mathis and Great American, which provide that a plaintiff may simultaneously bring both a circuit court action for damages under the no-fault act and a claim for worker’s compensation benefits, the exclusive remedy provision does not divest the circuit court of subject-matter jurisdiction over these types of claims.2
Additionally, a published opinion of this Court recently rejected the argument that the exclusive remedy provision deprives the circuit court of subject-matter jurisdiction over personal injury claims brought under the no-fault act. Specht v Citizens Ins Co of America, 234 Mich App 292; 593 NW2d 670 (1999). In Specht, the plaintiff suffered injuries while driving her personal automobile in the course of her employment. In addition to filing a worker’s compensation claim, the plaintiff also filed a lawsuit in the circuit court against her no-fault insurer. The defendant’s sole argument on appeal was that the circuit court lacked jurisdiction to decide the plaintiff’s tort claim. This Court rejected that argument, holding that the plaintiff’s no-fault claim “was clearly an issue over which the circuit court had jurisdiction.” Id. at 298. Under MCR 7.215(H)(1), we are bound to follow the rule established in Specht and should therefore reject the instant defendant’s argument that the circuit court lacked subject-matter jurisdiction over plaintiff’s no-fault claim.
The majority attempts to distinguish Mathis, Great American, and Specht from the instant case on the basis of the type of defendant named in those suits. The majority argues that those cases are inapposite because they involved defendants other than the plaintiff’s employer or a coemployee. I respectfully disagree. It is true that none of the cited cases involved a defendant who was also the plaintiff’s coemployee.3 However, I disagree that the identity of the defendant sued determines whether the circuit court has subject-matter jurisdiction over the plaintiff’s claim. In my opinion, the majority’s focus on the “class of litigants” involved in this case, i.e., the fact that plaintiff sued a coemployee, reflects a determination that defendant enjoyed the benefit of a valid defense that, if properly raised, would have completely barred plaintiff’s claim. However, a circuit court’s subject-matter jurisdiction is not determined by “whether the particular case is one that presents a cause of action, or under the particular facts is triable before the court.” Bowie, supra at 39.
Finally, the majority’s holding that the circuit court lacked subject-matter jurisdiction over plaintiff’s third-party no-fault claim makes little sense in light of the subrogation provision of the WDCA,
In this case, we are not called to decide whether a plaintiff should be able to sue his coemployee in tort for personal injuries arising out of and in the course of employment. Rather, we are asked to decide whether the defense sought to be advanced by defendant is properly characterized as an affirmative defense or as an attack on the circuit court’s subject-matter jurisdiction. For the reasons set forth above, I conclude that the exclusive remedy provision does not deprive the circuit court of subject-matter jurisdiction over an injured employee’s no-fault claim.
n
An affirmative defense is a defense that does not controvert the establishment of the plaintiff’s prima facie case, but otherwise denies relief to the plaintiff. Chmielewski v Xermac, Inc, 457 Mich 593, 617; 580 NW2d 817 (1998), quoting Stanke v State Farm Mut Automobile Ins Co, 200 Mich App 307, 312; 503 NW2d 758 (1993). “[A]n affirmative defense includes any defense that seeks to foreclose a plaintiff from continuing a civil action for reasons unrelated to the plaintiffs prima facie case.” Kelly-Nevils v Detroit Receiving Hosp, 207 Mich App 410, 420; 526 NW2d 15 (1994). In this case, the exclusive remedy provision, if applied, would bar plaintiff’s third-party no-fault claim for reasons completely unrelated to plaintiff’s prima facie case against defendant. Therefore, it should be properly understood as an affirmative defense to plaintiff’s claim.
MCR 2.111(F) requires a party against whom a cause of action has been asserted to state affirmative defenses in the responsive pleading. That rule provides, in pertinent part:
(3) Affirmative Defenses. Affirmative defenses must be stated in a party’s responsive pleading, either as originally filed or as amended in accordance with MCR 2.118. Under a separate and distinct heading, a party must state the facts constituting
(a) an affirmative defense, such as contributory negligence; the existence of an agreement to arbitrate; assumption of risk; payment; release; satisfaction; discharge; license; fraud; duress; estoppel; statute of frauds; statute of limitations; immunity granted by law; want or failure of consideration; or that an instrument or transaction is void, voidable, or cannot be recovered on by reason of statute or nondelivery;
(b) a defense that by reason of other affirmative matter seeks to avoid the legal effect of or defeat the claim of the opposing party, in whole or in part;
(c) a ground of defense that, if not raised in the pleading, would be likely to take the adverse party by surprise.
Although the worker’s compensation exclusive remedy provision is not specifically listed within MCR 2.111(F)(3)(a), that does not preclude it from being considered an affirmative defense. The affirmative defenses enumerated in MCR 2.111(F)(3)(a) “were not intended to form a closed class, but were included by way of illustration only.” Campbell, supra at 615. A party that fails to raise an affirmative defense as required by MCR 2.111(F) waives that defense. Id.) Kelly-Nevils, supra at 420. Because defendant failed to raise the worker’s compensation exclusive remedy provision as an affirmative defense in his responsive pleading, the defense has been waived.
I would reverse the trial court’s grant of summary disposition in favor of defendant and would remand this matter to the trial court for further proceedings.
The majority correctly notes that numerous prior cases have characterized the exclusive remedy provision variously as an affirmative defense, as a type of immunity, and as a question of subject-matter jurisdiction. Because those cases simply assumed the character of the exclusive remedy defense, and did not squarely address the issue presently before us, they are not controlling.
Although the majority concedes that “[a] trial court is not automatically divested of jurisdiction over a no-fault claim under the exclusive remedy provision by virtue of the fact that a plaintiff was injured during the course of luis employment,” ante at 317, the majority nevertheless concludes that the provision did strip the circuit court of subject-matter jurisdiction in this case. I respectfully submit that the circuit court either does or does not have subject-matter jurisdiction over injured employees’ third-party no-fault claims. The circuit court’s subject-matter jurisdiction cannot depend on the facts presented in individual cases.
In Mathis, three plaintiffs sued their employers’ no-fault insurers and one plaintiff sued his employer, which was a self-insured entity under the no-fault act. Mathis, supra at 176-178. In Great American, the plaintiff recovered benefits from his employer’s no-fault insurer. Great American, supra at 88. In Specht, the plaintiff sued her private no-fault insurance carrier. Specht, supra at 294.
The majority correctly notes that an injured party’s coemployees and employer are specifically excluded from the definition of the third parties from which a worker’s compensation carrier may seek subrogation.