By Correy E. Stephenson
The exclusive remedy provision of the Worker's Disability Compensation Act , or WDCA, did not bar a negligence action brought by an employee against other subcontractors on the project that were not his employers, the Michigan Court of Appeals has held in a published decision .
Rock Development Company was the owner of a project to construct the Wayne County Criminal Justice Center. Rock Development was represented by Bedrock Management Services, which took out an owner-controlled insurance program, or OCIP, policy with Ace American Insurance Company.
The policy provided that Ace would be the primary coverage provider for all people working at the project site.
Bedrock entered into a contract with Barton Malow Builders, with Barton Malow serving as general contractor and construction manager for Rock Development. Barton Malow then hired multiple subcontractors, including Saylor’s Inc. and Universal Glass.
Employed by Universal Glass, Michael Crispin was on an aerial lift welding windows on the fourth floor of the project on Oct. 14, 2020. Saylor’s was working directly above him on the seventh floor, applying fireproofing material. A large piece of that material fell and landed on Crispin, injuring him.
Crispin brought a negligence action against both Barton Malow and Saylor’s. The defendants moved for summary disposition, arguing that the worker’s compensation benefits Crispin recovered through Bedrock Management’s OCIP policy was his exclusive remedy.
The Wayne County Circuit Court sided with the defendants.
Crispin appealed. He told the appellate court that the WDCA’s exclusive remedy provision did not apply because he was employed by Universal Glass not Saylor’s or Barton Malow.
The appeals court agreed.
Pursuant to MCL 418.131 , a claimant’s exclusive remedy for a workplace injury falling within the WDCA is to recover worker’s compensation benefits from the employer, and for the purposes of such recovery, the employer’s insurer is viewed as the employer.
“MCL 418.131(2) provides that the term employer includes the employer’s insurer for the purposes of the exclusive remedy provision, but the suggestion that this means that all subcontractors covered by the same policy are considered employers of those working for other subcontractors stretches the language of Section 131 further than it can naturally go,” Judge Allie Greenleaf Maldonado wrote. “We believe it clear that the reference to ‘the employer’s insurer’ refers to the policy as it relates to the entity that actually employs the injured person.”
Had Crispin been injured as a result of Universal Glass’s negligence, then recovery from Ace via Bedrock Management’s OCIP policy would be the exclusive remedy.
“However, this is not the case if [Crispin] is injured by the negligence of an entity that is not his employer, i.e., Saylor’s,” Maldonado explained. “Defendants’ position would suggest that a potential claimant, for the purposes of the exclusive-remedy position, is ‘employed’ by each entity that uses the same insurer as the potential claimant’s actual employer, but this clearly was not the Legislature’s intent.”
As Crispin was free to recover in tort against the defendants because he was employed only by Universal Glass, the court reversed summary disposition in favor of the defendants and remanded.
The case is Crispin v. Barton Malow Builders, LLC (MiLW 07-107892). Judges Michael J. Riordan and Colleen A. O’Brien joined Maldonado’s opinion.
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