*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 417 Mich 889 *5 140 Mich the Court nation, is clearly scope outside the of the WDCA. Clifton, Slayton, supra; Pacheco v 563; (1981), gtd lv 311 NW2d 801 417 Mich 888 (1983), Michigan and Stimson v Bell Telephone distinction between contractual claims and claims brought properly within the WDCA was accurately made in Milton v Oakland County, Mich App 279, (1973): 283-284; 213 NW2d 250 Sheppard Michigan Bank, "In National the Court articulated purpose of the providing act as a compensat- method of ing injuries upon workmen for industrial the basis of relating trade risks industry charged as a part of Similarly, the cost to it. Crilly Ballou, 303, 308; stated: " consuming public, 'The charity, public not pri- or vate, must foot the bill injuries.’ work-incurred added.) (Emphasis

"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 285 NW2d 214 I would agree statement Kissinger support contained for exception such an precedential "has little value it because is expressly limited to an intentional tort such as the one then before the Court and because the Court was careful out that point case fell within other exceptions to the exclusive Inc, Genson v Bofors-Lakeway, provision”. 470, Mich App 477; 332 NW2d 507 I agree with the Genson Court’s conclusion that: say

"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; 303 NW2d 876 Genson, supra; See also Slayton Michigan Host, Inc, Mich App

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’