The plaintiff, Melvin Jordan, was injured at work while using a drain cleaner manufactured by the appellant. He and his wife brought an action against the appellant alleging negligence, breach of warranty, and improper labeling of a hazardous product.
The appellant brought a third-party action, GCR 1963, 204, against the appellee, the employer of the plаintiff, for contribution and indemnification. The appellee moved for summary judgment on the third-party complaint for failure to state a claim upon which relief could be granted, GCR 1963, 117.2(1), and thе motion was granted. Appellant seeks review.
Our first consideration is whether the exclusive rеmedy provision of the Workmens’ Compensation
*115
Act, MCLA 418.131; MSA 17.237 (131),
1
as amended by
At the time Husted was decided the exclusive remedy provision of the Workmens’ Compensation Aсt provided:
. "Where the conditions of liability under this act exist, the right to the recovery of cоmpensation benefits as herein provided, shall be the exclusive remedy against the employer. ” (Emphasis supplied.)1943 PA 245 , § 4.
It appeared to the Supreme Court thаt the intent of the Legislature, by this provision and its predecessors, was to grant an employer "outright and absolute immunity from liability [except as provided in the act] stemming from each cоmpensable injury”. Husted v Consumers Power Co, supra, at 53. Consequently, the Court held that this section destroyed a third party’s claim for contribution. Husted v Consumers Power Co, supra, at 54.
By
*116 "The right to the reсovery of benefits as provided in this act shall be the employee’s exclusive remedy against the employer. As used in this section and section 827 'employee’ includes the person injured, his personal representatives and any other pеrson to whom a claim accrues by reason of the injury to or death of the employеe, and 'employer’ includes his insurer, a service agent to a self-insured employer, and thе accident fund insofar as they furnish, or fail to furnish, safety inspections or safety advisory services incident to providing workmen’s compensation insurance or incident to a self-insured emрloyer’s liability servicing contract.” (Emphasis supplied.)
The appellant asserts that since it is not an employee, it is not barred from seeking contribution.
We need not answer that contention. The decision in
Husted v Consumers Power Co, supra,
at 54-56, not only premised its decision on
The substantive rights and liabilities of all present parties are determined according to the law at the time the plaintiffs’ claims accrued on May 3, 1973.
Husted v Consumers Power Co, supra,
at 47. A right to contribution between joint tortfeasors existed at the time this action accrued pursuant to
In
Moyses v Spartan Asphalt Paving Co,
383
*117
Mich 314, 334;
The Court in
Husted
found the decision of
Baltimore Transit Co v State,
183 Md 674, 679;
"We think these provisions make it clear that the Act is only applicable to a situation where there is a commоn liability to an injured person in tort. Such liability may be joint or several, but there can be no cоntribution where the injured person has no right of action against the third party defendant. The right of сontribution is a derivative right and not a new cause of action.”
In the case at bar the appellee’s liability is purely statutory pursuant to the Workmens’ Compensation Act, and is not dеpendent upon culpability. The appellant’s liability, on the other hand, is grounded upon plaintiffs’ allegations of negligence, breach of warranty, and improper labeling of а hazardous product. There is no common liability. See 18 Am Jur 2d, Contribution, § 48, pp 69-70. 4
Moreover, the appellant’s right of contribution is derivative of the plaintiffs’ rights. Since the plain *118 tiffs cannot sue the appellant, neither can the appellee.
The appеllant’s remaining issue dealing with indemnification is controlled by Judge N. J. Kaufman’s excellent opinion in
Minster Machine Co v Diamond Stamping Co,
Affirmed. Costs to appellee.
Notes
Formerly MCLA 411.4; MSA 17.144.
"Where the conditions of liability under this act exist, the right to the recovery of compensatiоn benefits as provided in this act shall be the exclusive remedy against the employer.”
MCLA 600.2925(1); MSA 27A.2925(1), repealed by
In
Moyses v Spartan Asphalt Paving Co,