One Court of Justice

Plaintiff worked as a painter on the Mackinac Bridge for over 25 years, for various employers.  Plaintiff was working for Allstate Painting Company, Inc. (Allstate) in May 2005 when he injured his right knee.  Plaintiff filed a petition seeking benefits from Allstate, which did not have workers’ compensation insurance.  Although the magistrate granted Plaintiff an open award of benefits against Allstate, Plaintiff was unable to collect.  Subsequently, Plaintiff filed this action seeking benefits from defendants Mackinac Bridge Authority (the Authority) and American Painting Company, Inc. (American Painting) under Section 171 of the Workers’ Disability Compensation Act (WDCA), the statutory employment provision.  MCL 418.171.  The magistrate applied res judicata, or claim preclusion, to dismiss Plaintiff’s claim against the Authority and American Painting because the magistrate concluded Plaintiff could have brought his Section 171 claim in his earlier action against Allstate.  The Workers’ Compensation Appellate Commission (WCAC) affirmed the magistrate’s dismissal in a 2-1 decision.  In Bennett v. Mackinac Bridge Authority, No. 287628, the Court of Appeals reversed the decision of the WCAC and remanded the case to the magistrate for reinstatement.  The Court of Appeals concluded that application of the doctrine of res judicata in this case to bar Plaintiff’s Section 171 claim against defendants would subvert the intent of the Legislature because it would, in effect, read a rule of mandatory party joinder in Section 171.  The Court of Appeals explained that the Legislature has, in other provisions, required the joinder of parties or prescribed methods for compelling the joinder of parties, and neither provision exists in Section 171.  Thus, the Court of Appeals determined that the an injured employee may bring separate workers’ compensation actions against a direct employer and statutory employer under Section 171 without having to join all potentially liable parties in a single action.

On August 24, 2010, the Court of Appeals published its per curiam opinion in Findley v. DaimlerChrysler Corp., No. 291402.  The case arose from an appeal from the Workers’ Compensation Appellate Commission (“WCAC”) which had affirmed a magistrate’s denial of benefits.  In affirming that decision, one commissioner issued an opinion that analyzed and adopted the magistrate’s findings.  Another member concurred “in result only” and provided no explanation, while the last member of the three-commissioner panel dissented.  The Court of Appeals held that it can only review the decisions of a “true majority” of a WCAC panel, and that this did not constitute a true majority.  The Court concluded that a “true majority” is an opinion in which a majority of the commissioners agree on the material facts and ultimate outcome.  Here, it is not clear that a majority of the commissioners agree on the facts because the second member of the majority only concurred in the result.  Therefore, the Court of Appeals remanded the matter to the WCAC for further proceedings.

Plaintiffs, employed as power plant operators, suffered injuries when hot ash exploded out of one of the boilers while they were emptying bottom ash from it.  Plaintiffs alleged that the employer was liable under the intentional tort exception to the Worker’s Disability Compensation Act’s (WDCA) exclusive remedy provision, MCL § 418.131(1).  Under the second sentence of MCL § 418.131(1), the plaintiff can satisfy the specific intent requirement of an intentional tort claim if the plaintiff can show that the employer had “actual knowledge” that an injury is “certain to occur” yet “willfully disregards” it.  In a per curiam opinion in Johnson v. Detroit Edison Co., No. 289763, published on June 15, 2010, the Court of Appeals determined that plaintiffs proffered sufficient circumstantial evidence in support of their intentional tort claim to survive summary disposition.  The Court of Appeals held that a jury may conclude that an employer knew the injury was “certain to occur” where a plaintiff can show that (1) the employer subjects the employee to a continuously operative dangerous condition that it knows will cause an injury; (2) the employer knows that its employees are taking insufficient precautions to protect themselves against the danger; and (3) the employer takes no action to remedy the situation.

In a 5-2 decision issued Monday, the Michigan Supreme Court ruled that recent changes to Michigan workers’ compensation law should not be applied retroactively.  Brewer v. A.D. Transport Express, Inc., No. 139068, involved application of  2008 PA 499, which amended MCL § 418.845 to expand the Workers’ Compensation Agency’s jurisdiction over out-of-state injuries.  In an opinion authored by Justice Corrigan and joined by Justices Cavanagh, Young, and Markman, the Court held that the statutory text does not manifest the Legislature’s intent to apply the amendment to antecedent injuries.  Moreover, the amendment did not fall within an exception for remedial or procedural amendments that may apply retroactively, because the amendment created a new legal burden and potentially enlarged existing substantive rights.  Chief Justice Kelly concurred in the result only.  Justices Weaver and Hathaway dissented, explaining that rather than deciding the case’s merits following oral argument on the application for leave to appeal, the Court should have granted leave for full briefing and argument.

On Friday, December 4, 2009, the Michigan Supreme Court denied three applications for leave to appeal, denied one prisoner’s motion to waive his filing fees, and corrected its previous order in Lansing Schools Education Association v. Lansing School Board, Case No. 138401, to include a dissenting opinion by Justice Young.  The Court also peremptorily reversed the judgment of the Court of Appeals and reinstated the decision of the worker’s compensation magistrate in Loos v. J.B. Installed Sales, Inc., Case No. 137987, which is discussed after the jump. Read more »

On October 13, 2009, the Court of Appeals published its unanimous decision in Fries v. Mavrick Metal Stamping, Inc., et al., Case No. 283193.  In Fries, the Court of Appeals considered whether an employee’s injury, sustained when her clothing caught in a stamping press, qualified as an intentional tort and, therefore, was an exception to the Worker’s Disability Compensation Act’s exclusive remedy rule.  Here, the employer had been notified that the clothing of another employee had previously been caught in the machine, and that its managers were not monitoring proper use of safety mechanisms on the machines.  On appeal, Mavrick argued that even if this evidence was true, it did not constitute notice that a continuous dangerous condition existed that was certain to lead to injury.  Ultimately, the Court of Appeals affirmed the Antrim County Circuit Court’s order denying Defendant Mavrick’s motion for summary disposition, holding that the circumstantial evidence on record was sufficient that a reasonable jury could conclude that Mavrick was on notice that a continuous dangerous condition existed.  A copy of the court’s order can be found here. Read more »

On September 23, 2009, the Michigan Supreme Court denied thirteen applications for leave to appeal. It vacated and remanded two criminal cases and one civil case. The Court granted one motion for immediate consideration and it also took substantive action in one criminal case and one civil case. These are discussed after the jump. Read more »

On July 31, 2009, the Michigan Supreme Court published an opinion in Petersen v. Magna Corp., et al.  Chief Justice Kelly, joined in full by Justice Cavanagh, and in part by Justices Hathaway and Weaver, affirmed the Court of Appeals’ opinion and held that the prorated attorney fee provision of Michigan Worker’s Disability Compensation Act (WDCA), MCL 418.315(1), applies only to employers and their insurance carriers.  Justice Markman, joined in full by Justice Corrigan and in part by Justice Young, dissented.  A summary of the Court of Appeals’ opinion can be found here. Read more »

On July 15, 2009, the Michigan Supreme Court denied three applications for leave to appeal and denied a prisoner’s motion to waive filing fees in Hulvey v. Department of Corrections, Case No. 139107, for the reason that under MCL § 600.2963, a prisoner pursuing a civil action is liable for filing fees.  However, the Court authorized a payment plan.  A copy of the Court’s order can be found here.  The Court also took substantive action in one criminal and one civil case.  These cases are discussed after the jump. Read more »

On Friday, May 8, 2009, the Michigan Supreme Court denied leave to appeal in six cases, but granted oral argument on the application for leave in four cases discussed below.  The Court also granted reconsideration in Stone v. R.W. LaPine, Inc. to remand the workers’ compensation case to the Board of Magistrates for recalculation of the plaintiff’s average weekly wage.

The Court granted MOAs in the following cases:

Michigan Education Association v. Secretary of State, No. 137451:  The Court ordered the parties to address whether a school district can collect the portion of teachers’ union dues attributable to the Michigan Education Association’s Political Action Committee (“MEA PAC”) as a payroll deduction without violating the  Michigan Campaign Finance Act.  The Court of Appeals, in a 2-1 decision, concluded that school districts cannot lawfully collect the MEA PAC’s funds even if the MEA PAC pre-paid for the service.  The Court of Appeals’ decision is here.

Bezeau v. Palace Sports & Entertainment, Inc., No. 137500:  The Court asked the parties to address whether “the jurisdictional standard established at MCL § 418.845, as interpreted . . . in Karaczweski v. Farbman Stein Co., 478 Mich 28 (2007), should be applied.”  The Court invited the Worker’s Compensation Section of the Michigan Bar to submit an amicus brief.

Allen v. Bloomfield Hills School District, No. 137607:  The Court ordered the parties to address whether post-traumatic stress disorder may qualify as a bodily injury that to avoid application of government immunity under MCL § 691.1405.  The Court invited the Michigan Defense Trial Counsel and the Michigan Association for Justice to submit amicus briefs. 

Myers v. Muffler Man Supply Co., No. 137608:  The Court ordered the parties to address whether the defendant’s negligence was the proximate cause of the plaintiff’s injury. 

On May 1, 2009, the Michigan Supreme Court:

• denied seven applications for leave to appeal;
• denied a prisoner’s motion to waive filing fees;
• ordered supplemental briefing and a mini-oral argument (MOA) on the application for leave filed in Loos v. J.B. Installed Sales, INc., Case No. 137987, a case involving application of the statutory factors enumerated in MCL 418.161(1)(n) for determining when a person is an “employee” for purposes of the Worker’s Disability Compensation Act (the Court of Appeals opinion can be found here);
• ordered supplemental briefing and an MOA on the application for leave filed in People v. Hoch, Case No. 137908, a case involving a trial court’s decision to respond to a note from the jury, off the record and in the absence of defendant or his counsel (the Court of Appeals opinion can be found here);
• reversed the Court of Appeals’ decision in Consumers Energy Co. v. Acey, Case No. 137425, holding the plaintiff bound to its stipulation in the trial court regarding the width of an easement;
• issued a summary decision in Attorney General v. Michigan Public Service Commission, Case Nos. 136431 and 134676, holding that (1)  ”transmission costs” may be recovered through a power supply cost recovery clause, and (2) Detroit Edison Company could not recover a portion of the control premium that DTE Energy paid to acquire MCN Energy  (our previous post on these cases can be found here); and
• on reconsideration, vacated its previous summary order and granted the application for leave to appeal in Davis v. Forest River, Inc., Case No. 136114, a case involving a party’s ability to assert the remedy of rescission in an implied warranty action under the UCC against an out-of-privity seller (the Court’s previous order can be found here).

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On April 3, 2009, the Michigan Supreme Court granted reconsideration of its December 17, 2008 order reversing the ruling of the Workers’ Compensation Appellate Commission.  The order is noteworthy only in that it is another reversal of a 4-3 decision of the Court from this term in which Chief Justice Taylor was in the majority.  After holding oral argument on the application for leave, the Court ruled on December 17, 2008 that because Sazima was injured while walking to work after parking her car on a public street, her injury did not occur during the course of her employment and was not covered by the Workers’ Compensation Act.  Justices Cavanagh, Kelly, and Weaver dissented.  With the replacement of Chief Justice Taylor by Justice Hathaway, the dissenters overturned the Court’s previous order drawing a dissent from Justice Markman in which he contends that the Court’s decision can only be explained by the change in the composition of the Court.  The Court’s order and Justice Markman’s dissent have drawn statewide media coverage, including by Michigan’s National Public Radio affiliates.  Ultimately, the April 3 order has no precedential effect as it merely denies leave to appeal an underlying Court of Appeals order also denying leave to appeal.  The order granting reconsideration is here.  The Court’s now-vacated December 17, 2008 order is here.

On January 22, 2009, the Michigan Supreme Court will hear oral argument in Petersen v. Magna Corp., No. 136542-43, on whether the Worker’s Disability Compensation Act, MCL 418.315(1) authorizes an employee to obtain an award of attorney fees for unpaid medical expenses from his employer or the worker’s compensation insurer, or simply authorizes proration between the employee and medical provider of the contingent fee paid out of the claimant’s recovery under MCL 418.858 and Rule 14 of the General Rules promulgated by Worker’s Compensation Agency.  The Court will also consider the meaning of language in Section 315 providing for proration of attorney fees, whether this proration is limited to the parties in the worker’s compensation action, which parties are subject to such proration, and the status of insurers and medical providers regarding such proration.   The Court’s order granting leave can be found here.  The briefs of the parties and the amici curiae can be found here.

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