Sebastian Kuhlgert v. Michigan State University ( 2020 )

Order Michigan Supreme Court
Lansing, Michigan
April 17, 2020 Bridget M. McCormack,
Chief Justice
159865-7 David F. Viviano,
Chief Justice Pro Tem
Stephen J. Markman
Brian K. Zahra
SEBASTIAN KUHLGERT, Conservator of Richard H. Bernstein
ELISABETH OSTENDORF, Elizabeth T. Clement
Plaintiff-Appellee, Megan K. Cavanagh,
Justices
v SC: 159865, 159866
COA: 332442, 338363
Court of Claims: 15-000047-MZ
MICHIGAN STATE UNIVERSITY and
BOARD OF TRUSTEES OF MICHIGAN
STATE UNIVERSITY,
Defendants,
and
UNITED EDUCATORS,
Intervening Defendant-Appellant.
_________________________________________/
ELISABETH OSTENDORF,
Plaintiff-Appellee,
and
UNITED EDUCATORS,
Intervening Plaintiff-Appellant,
and
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Intervening Plaintiff,
v SC: 159867
COA: 344533
MICHIGAN STATE UNIVERSITY, MCAC: 17-000013
Defendant-Appellee.
_________________________________________/
2
On order of the Court, the application for leave to appeal the May 21, 2019 judgment
of the Court of Appeals is considered, and it is DENIED, because we are not persuaded
that the questions presented should be reviewed by this Court.
MARKMAN, J. (concurring).
At issue here is whether the injuries sustained by Elisabeth Ostendorf were subject
to the exclusive-remedy provision, MCL 418.131(1), of the Worker’s Disability
Compensation Act, MCL 418.101 et seq. In my view, the Court of Appeals was correct in
concluding that her injuries were not subject to this provision on the basis of MCL
418.161(1)(b) of the Act, which provides that “[n]ationals of foreign countries employed
pursuant to section 102(a)(1) of the mutual educational and cultural exchange act of 1961,
Public Law 87-256, 22 USC 2452, shall not be considered employees under this act.” As
the Court of Appeals explained, “22 USC 2452(1)(a) is not limited to those educational
exchange employees paid directly by the State Department. Instead, by its plain language,
the statute also applies to those employees [such as Ostendorf] who are indirectly financed
by that entity through its [exchange visitor programs].” Kuhlgert v Mich State Univ, 328
Mich. App. 357, 369 (2019).
I thus see no reason to decide whether the Court of Appeals was also correct in
concluding that her injuries were not subject to the exclusive-remedy provision because
they were not “receive[d] . . . arising out of and in the course of employment,” MCL
418.301(1), where she was injured while walking to her vehicle on the premises of her
employer after leaving the building in which she worked. See generally Simkins v Gen
Motors Corp (After Remand), 453 Mich. 703 (1996).
Accordingly, because I agree with the Court of Appeals that Ms. Ostendorf’s
injuries were not subject to the exclusive-remedy provision of the WDCA, I concur with
our order denying leave to appeal.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
April 17, 2020
p0414
Clerk