Burgess v. Holloway Construction Co. , 123 Mich. App. 505 ( 1983 )

123 Mich. App. 505 (1983) 332 N.W.2d 584

BURGESS
v.
HOLLOWAY CONSTRUCTION COMPANY

Docket No. 60508.

Michigan Court of Appeals.

Decided February 25, 1983.

Benson, Bloomquist, Wegner & Hunter (by Terrence H. Bloomquist), for plaintiff.

Franklin, Petrulis & Lichty, P.C. (by Steve J. Weiss and James T. Mellon), for defendant.

Before: BRONSON, P.J., and T.M. BURNS and ALLEN, JJ.

PER CURIAM.

On October 7, 1981, the trial judge granted defendant's motion for accelerated judgment, GCR 1963, 116.1(2), and denied plaintiffs' petition for leave to file a second amended complaint. Plaintiffs appeal as of right.

Plaintiffs alleged that on June 16, 1978, Tom Burgess and Hoppy Stepp, both employed by defendant, argued about union rules and regulations. As a result, Stepp shot and killed Burgess. Plaintiffs, Burgess's wife and children, eventually sued defendant.

Plaintiffs alleged that Stepp was acting within the course of his employment when he shot Burgess. As a matter of law, plaintiffs cannot now argue that Burgess was outside the scope of employment. Before suing in circuit court, Marjory Burgess filed a workers' compensation claim with the Bureau of Workers' Disability Compensation. This claim was redeemed for $4,500. In Johnson v Harper-Grace Hospital, 92 Mich. App. 202, 207; 284 NW2d 520 (1979), this Court ruled:

"We hold that plaintiff's acceptance of disability benefits by way of settlement and redemption where she claimed that her injury was employment-related bars her subsequent tort suit where she seeks to relitigate the issue of the bureau's jurisdiction by alleging that her injury was not employment-related. The redemption order serves as a final adjudication of the rights of the parties in relation to this particular injury and estops plaintiff's civil suit."

Therefore, this case's threshold question is whether or not this suit is barred by the exclusive remedy provision. MCL 418.131; MSA 17.237(131). In Sewell v Bathey Mfg Co, 103 Mich. App. 732, 736; 303 NW2d 876 (1981), this Court stated:

"It is beyond question that, when an injury is sustained which is compensable under the Worker's Disability Compensation Act of 1969, the exclusive-remedy provision of the act bars any common-law tort cause of action by an employee against his employer arising therefrom." (Footnote omitted.)

Plaintiffs attempt to avoid this exclusive remedy provision by claiming that the injury was outside the Worker's Disability Compensation Act. As such, they allege an intentional tort. Intentional torts are in fact outside the act. Kissinger v Mannor, 92 Mich. App. 572; 285 NW2d 214 (1979); Broaddus v Ferndale Fastener Div, Ring Screw Works, 84 Mich. App. 593; 269 NW2d 689 (1978), lv den 403 Mich. 850 (1978). However, although an intentional tort has been alleged, defendant did not do it; Stepp did it. Merely alleging an intentional tort is not necessarily in and of itself sufficient to avoid the exclusive remedy provision. In McKinley v Holiday Inn, 115 Mich. App. 160; 320 NW2d 329 (1982), the plaintiff was raped by one of defendant's guests while she was working as a maid for defendant. In distinguishing Kissinger, this Court noted:

"[I]t is necessary to focus on the nature of the tort alleged by the injured employee and to determine if the Legislature intended the exclusive remedy of the act to preclude the employee's common-law recovery for injury suffered in such a tort.

* * *

"The instant plaintiff's complaint against defendant Holiday Inn is grounded solely in negligence. No intentional misconduct is alleged. There is no question that, if plaintiff's injuries have resulted in disability, as that term is understood for workers' compensation purposes, she will be eligible to receive compensation benefits." 115 Mich. App. 165-166.

Plaintiffs, consequently, allege that Stepp was defendant's alter ego. However, plaintiffs have merely pled the conclusion that Stepp acted as defendant's alter ego. They have not alleged any facts that would show that Stepp acted as defendant when he shot and killed Burgess. See, generally, Chester v World Football League, 75 Mich. App. 455; 255 NW2d 643 (1977).

As such, this case is controlled by Crilly v Ballou, 353 Mich. 303, 326; 91 NW2d 493 (1958). There, the plaintiff was injured when he was hit by a shingle thrown by some boys working for the defendant. In ruling that that injury was compensable, under the Worker's Disability Compensation Act, the Supreme Court stated: "[I]f the injury results from the work itself, or from the stresses, the tensions, the associations, of the working environments, human as well as material, it is compensable." See also Fidelity & Casualty Co of New York v DeShone, 384 Mich. 686; 187 NW2d 215 (1971).

Plaintiffs also argue that their pleadings did not foreclose the possibility that Burgess had initiated the altercation with Stepp. However, for a claimant to be barred from compensation due to his own misconduct, the conduct must involve a high degree of "moral turpitude", defined as "an act of baseness, vileness, or depravity". Andrews v General Motors Corp, 98 Mich. App. 556, 561; 296 NW2d 309 (1980), lv den 412 Mich. 926; 315 NW2d 127 (1982). Plaintiffs have not alleged any such facts.

Plaintiffs next argue that the deceased's survivors retain an independent action against defendant for loss of society and companionship. However, because this alleged loss derives from the chief claim itself, it is also barred by the Worker's Disability Compensation Act. Moran v Nafi Corp, 370 Mich. 536; 122 NW2d 800 (1963); Bourassa v ATO Corp, 113 Mich. App. 517; 317 NW2d 669 (1982), lv den 414 Mich. 966 (1982); Cole v Dow Chemical Co, 112 Mich. App. 198; 315 NW2d 565 (1982).

Plaintiffs next argue that the trial judge abused his discretion in denying their motion to file a second amended complaint. GCR 1963, 118.1. Although such motions are within the trial judge's discretion, they are to be freely granted whenever justice requires. Ben P Fyke & Sons v Gunter Co, 390 Mich. 649; 213 NW2d 134 (1973).^[1] We do not believe that the trial judge abused his discretion in this case. Allowing the amendment would have been futile. Plaintiffs, relying on Solo v Chrysler Corp (On Rehearing), 408 Mich. 345; 292 NW2d 438 (1980), argue that the redemption agreement should have been set aside because of a mutual mistake of fact. However, Solo dealt with a mistake concerning the claimant's injury. Here, plaintiffs are not arguing a mistake of fact but a mistake of law; they are arguing that the parties mistakenly believed that intentional torts fit within the bureau's jurisdiction. A mistake of law is usually not a ground for equitable relief. Schmalzriedt v Titsworth, 305 Mich. 109; 9 NW2d 24 (1943); Sinka v McKinnon, 301 Mich. 617; 4 NW2d 32 (1942); Theisen v Kroger Co, 107 Mich. App. 580; 309 NW2d 676 (1981).

Plaintiffs lastly argue that the trial judge abused his discretion in denying their motion to add Stepp as a party defendant. However, plaintiffs have failed to appeal the August 19, 1981, order which denied their motion. As such, this issue is not properly before this Court. Smith v O'Harrow Construction Co, 95 Mich. App. 341; 290 NW2d 141 (1980), lv den 409 Mich. 873 (1980).

Affirmed.

NOTES

[1] Although plaintiffs have not raised the following matter, we believe it should be addressed. The trial judge's findings of fact were contained in this statement. "I think you should go to the separate action route here. If you file here, I am sure it will be assigned to me." This finding is very similar to the finding found insufficient in Leahy v Henry Ford Hospital, 84 Mich. App. 719, 723; 271 NW2d 34 (1978), lv den 406 Mich. 861 (1979): "It seems to me you are in effect starting a whole new lawsuit, a whole new cause of action and these matters have to be resolved someplace". Whenever a trial judge denies a motion to file an amended complaint, he must make findings that justice will not be served if the motion is granted. Hanon v Barber, 99 Mich. App. 851; 298 NW2d 866 (1980).