Smith v. Park Chemical Co. , 154 Mich. App. 180 ( 1986 )

154 Mich. App. 180 (1986) 397 N.W.2d 260

SMITH
v.
PARK CHEMICAL COMPANY

Docket No. 84474.

Michigan Court of Appeals.

Decided August 19, 1986.

Lakin, Worsham & Victor, P.C. (by Larry A. Smith), for plaintiff.

Vandeveer, Garzia, Tonkin, Kerr, Heaphy, Moore, Sills & Poling, P.C. (by C.F. Boyle, Jr., and Robert D. Brignall), for defendant.

Before: T.M. BURNS, P.J., and BEASLEY and R.M. PAJTAS,^[*] JJ.

PER CURIAM.

Plaintiff appeals as of right from an adverse Wayne Circuit Court order of summary disposition in his tort action for injuries allegedly received through the negligence of Park Chemical Company (hereinafter referred to as defendant).

According to plaintiff's complaint, he was employed by Dino Benson, Sr., as a laborer on June 9, 1983. Dino Benson, Sr., was a contractor for defendant, repairing the roof on one of defendant's plants in the City of Detroit. The complaint states that plaintiff was injured when hot tar splashed onto his body, causing severe burns. Plaintiff alleges that defendant was negligent in failing to provide proper safety apparatus, clothing, procedures, equipment, and supervision.

Plaintiff's employer was apparently uninsured for workers' compensation, in violation of MCL 418.611; MSA 17.237(611). Defendant accordingly assumed liability as a statutory employer under MCL 418.171; MSA 17.237(171). Defendant's motion for summary disposition was based on the "exclusive remedy" provision of the Workers' Disability Compensation Act, MCL 418.131; MSA 17.237(131). The trial court granted defendant's motion, reasoning that workers' compensation was plaintiff's exclusive remedy under the act. We are now called upon to decide whether the trial court erred in so holding because the exclusive remedy provision of the Workers' Disability Compensation Act is a violation of the equal protection clauses of either the United States or Michigan Constitutions.

Liability under the Workers' Disability Compensation Act, MCL 418.101 et seq.; MSA 17.237(101) et seq., extends to all employers under § 111, MCL 418.111; MSA 17.237(111), other than those enumerated in § 115. However, to ensure that employees in certain industries, such as construction, are extended coverage, the Legislature enacted § 171 of the act. Section 171, MCL 418.171; MSA 17.237(171), was intended to protect employees of contractors and subcontractors against their employers' failure to obtain adequate workers' compensation insurance. Hamilton v Superior Mushroom Co, 91 Mich. App. 52; 282 NW2d 831 (1979). Section 171(1) provides that whenever an employer who is subject to the act (the principal) contracts with another who is either not subject to the act or is otherwise uninsured for purposes of workers' compensation (the contractor), the principal becomes liable for the workers' compensation benefits due to the employees of the contractor. The section further provides that "if compensation is claimed from or proceedings are taken against the principal, then, in the application of this act, reference to the principal shall be substituted for reference to the employer." Principals subject to workers' compensation liability under the foregoing provision are commonly called "statutory employers." Subsection (2) of § 171 entitles the statutory employer to indemnification from what might be called the "common-law employer."

Defendant concedes that it is liable as a statutory employer under the act. The issue in this case arises out of the application of the "exclusive remedy provision" of § 131 to the instant case. Section 131 provides:

The right to the recovery 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 a person injured, his personal representatives and any other person to whom a claim accrues by reason of the injury to or death of the employee, and "employer" includes his insurer, a service agent to a self-insured employer, and the 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 employer's liability servicing contract. [MCL 418.131; MSA 17.237(131). Emphasis added.]

Defendant argues that the exclusive remedy provision applies to statutory employers, while plaintiff argues that it only applies to common-law employers.

Previously, this Court split on whether the exclusive remedy provision applied to statutory employers. Compare Drewes v Grand Valley State Colleges, 106 Mich. App. 776; 308 NW2d 642 (1981), lv den 419 Mich. 880 (1984) (applies), with Dagenhardt v Special Machine & Engineering, Inc, 108 Mich. App. 75; 310 NW2d 41 (1981) (does not apply), rev'd 418 Mich. 520; 345 NW2d 164 (1984), reh den 419 Mich. 1207 (1984). In its reversal of Dagenhardt, the Supreme Court resolved the split, holding that the exclusive remedy provision does apply to statutory employers. 418 Mich. 529. However, the Supreme Court's analysis was limited to issues of statutory construction, since that plaintiff's equal protection claims were not preserved in the trial court. 418 Mich. 527.

Here, plaintiff preserved his equal protection claim by first raising it in the trial court. However, this Court has previously addressed the same constitutional argument in Drewes, holding that an extension of the exclusive remedy provision to statutory employers did not violate the equal protection clause of either the Michigan or United States Constitutions. Drewes, supra, pp 784-788. The Drewes analysis of the equal protection issue was based on precisely the same construction of the exclusive remedy provision of the act as that adopted by the Supreme Court in Dagenhardt.

Although the challenge was brought on both state and federal grounds, the Drewes Court focused only on the state constitutional issue. However, we note that Michigan has construed its equal protection provision, Const 1963, art 1, § 2, as coextensive with that of the US Const, Am XIV. See Armco Steel Corp v Dep't of Treasury, 419 Mich. 582, 591; 358 NW2d 839 (1984); Fox v Employment Security Comm, 379 Mich. 579, 588; 153 NW2d 644 (1967). Thus, because the analysis under the United States or Michigan Constitution is the same we find ourselves in agreement with the Drewes decision.

We conclude that the exclusive remedy provision of the Workers' Disability Compensation Act does apply to statutory employers, such as the one in this case. Thus we agree with the trial court's order of summary disposition.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.