Kudzia v. Carboloy Division of General Electric Co. , 190 Mich. App. 285 ( 1991 )

190 Mich. App. 285 (1991) 475 N.W.2d 371

KUDZIA
v.
CARBOLOY DIVISION OF GENERAL ELECTRIC COMPANY

Docket No. 114052.

Michigan Court of Appeals.

Decided March 21, 1991. Approved for publication July 11, 1991, at 9:10 A.M.

Sachs, Nunn, Kates, Kadushin, O'Hare, Helveston & Waldman, P.C. (by John L. Zorza, II, and Berry P. Waldman), for the plaintiffs.

Plunkett & Cooney, P.C. (by B.I. Stnnczyk, Ernest R. Bazzana, and Richard A. Dinon), for General Electric Company.

Blum, Konheim, Elkin & Blum (by Irving R. Blum), for Metallurgical Industries, Inc.

Timothy D. Wittlinger and Bradley A. Carl (Arent, Fox, Kinter, Plotkin & Kahn, by Michael Evan Jaffe and Elizabeth R. Mueller, of Counsel), for Outokumpu Metals (USA) Inc.

Thurswell, Chayet & Weiner (by Cary M. Makrouer), for Herman C. Stark, Inc.

Petersmarck, Callahan, Bauer & Maxwell, P.C. (by Neal W. Bauer and Richard W. West), for G.T.E. Products Corporation.

Before: WEAVER, P.J., and GILLIS and WAHLS, JJ.

PER CURIAM.

Plaintiffs appeal as of right from the circuit court's orders granting defendants-appellees' motions for summary disposition. We affirm.

Plaintiff Edward Kudzia has hard metals disease, which he claims developed while working with cobalt during his thirty-year tenure, ending in 1986, with defendant-appellee Carboloy Division of General Electric Company. The remaining defendants-appellees supplied the cobalt to Carboloy.

Plaintiffs sued Carboloy under the intentional tort exception to the exclusive remedy provision of the Workers' Disability Compensation Act. Plaintiffs sued the remaining defendants-appellees, claiming that they owed plaintiff Edward Kudzia a duty to warn him of the dangers of their product. Plaintiff Virginia Kudzia's claim is a derivative one for loss of consortium; therefore, whenever plaintiff is used singularly in this opinion, it will refer to plaintiff Edward Kudzia.

The circuit court granted Carboloy's motion for summary disposition, holding that plaintiff's claim against his employer was barred by the exclusive remedy provision of the Workers' Disability Compensation Act. MCL 418.131(1); MSA 17.237(131) (1). In so doing, the court relied on Beauchamp v Dow Chemical Co, 427 Mich. 1; 398 NW2d 882 (1986).

The circuit court granted the remaining defendants-appellees' motion for summary disposition, holding that they had no duty to warn because Carboloy was a sophisticated user of cobalt and was in the best position to warn of cobalt's dangers.

On appeal, plaintiffs first claim that the circuit court erred in granting Carboloy's motion for summary disposition, arguing that they pleaded facts in avoidance of the exclusive remedy provision pursuant to Beauchamp. Plaintiffs further argue that the Legislature's 1987 amendment of MCL 418.131(1); MSA 17.237(131)(1) should apply prospectively and did not change the Beauchamp standard. This Court, when presented with the issue, has consistently held that the 1987 amendment applies retroactively. Shipman v Fontaine Truck Equipment Co, 184 Mich. 706, 715; 459 NW2d 30 (1990); McNees v Cedar Springs Stamping Co, 184 Mich. App. 101, 102-103; 457 NW2d 68 (1990); Pawlak v Redox Corp, 182 Mich. App. 758, 767-768; 453 NW2d 304 (1990); Temple v H J Heinz Co, 180 Mich. App. 138, 139-140; 446 NW2d 869 (1989); Bowden v McAndrew, 173 Mich. App. 591, 595; 434 NW2d 195 (1988); Schefsky v Evening News Ass'n, 169 Mich. App. 223, 227-228; 425 NW2d 768 (1988). We agree with those cases. We further reject plaintiff's argument that the amendment was consistent with Beauchamp's interpretation of the prior statutory language. Having reviewed plaintiffs' complaint, we hold that they have not pleaded a cause of action under the intentional tort exception to the exclusive remedy provision of the Workers' Disability Compensation Act. MCL 418.131(1); MSA 17.237(131)(1). Schefsky, supra. Because the circuit court reached the correct result, we affirm its decision on this issue.

Plaintiffs also claim that the circuit court improperly granted the motions for summary disposition of the remaining defendants-appellees, holding that they had no duty to warn because Carboloy was a sophisticated user of cobalt and was in the best position to warn of cobalt's dangers. In doing so, plaintiffs argue that this Court's opinion in Tasca v GTE Products Corp, 175 Mich. App. 617; 438 NW2d 625 (1988), was wrong. We disagree and believe that Tasca's reasoning is equally applicable to this case. We further note that Tasca is not in conflict with Pettis v Nalco Chemical Co, 150 Mich. App. 294; 388 NW2d 343 (1986), in which this issue was not directly raised.

Affirmed.