Julie a Bolen v. Marada Industries Inc ( 2021 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
JULIE A. BOLEN, UNPUBLISHED
February 18, 2021
Plaintiff-Appellee/Cross-Appellant,
v No. 348765
Oakland Circuit Court
MARADA INDUSTRIES, INC., doing business as LC No. 2018-163688-NO
COSMA BODY ASSEMBLY MICHIGAN,
Defendant-Appellant/Cross-Appellee.
Before: CAVANAGH, P.J., and JANSEN and SHAPIRO, JJ.
SHAPIRO, J. (concurring).
I concur because I am bound by the Michigan Supreme Court’s decisions in Kidder v
Miller-Davis Co, 455 Mich 25; 564 NW2d 872 (1997), and Farrell v Dearborn Mfg Co, 416 Mich
267; 330 NW2d 397 (1982). I write separately to urge the Supreme Court to reconsider its holdings
in those cases.
Michigan courts look negatively upon a party’s attempt to “double dip.” That is exactly
what defendant seeks to do in this case. It argues that two wholly separate entities are both granted
immunity from suit under MCL 418.131 of the Worker’s Disability Compensation Act (WDCA),
even though only one of them has obtained applicable worker’s compensation insurance, without
which immunity is improper. Justice RYAN’s dissent in Farrell clearly spells out why applying
the WDCA’s exclusive-remedy provision in this manner is improper from both a legal and a
market perspective:
My colleague’s approach suggests that if two companies can divide the attributes
of employment equally enough, both will be entitled to the “exclusive remedy” bar
of the statute, even though only one set of workers’ compensation insurance
premiums must be paid. In short, my colleague’s opinion advertises “two bars for
the price of one.”
Moreover, from a purely policy perspective, the Court’s decision enables a
company to insulate itself from the economic consequences of an unsafe work
place. It seems clear that the Legislature contemplated that either total liability or
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higher workers’ compensation insurance rates would provide an economic
incentive for every company to care about worker safety. It now appears that the
labor broker scheme may be an expedient method of avoiding either type of
liability. [Farrell, 416 Mich at 286-287 (RYAN, J., dissenting in part).]
Justice RYAN’s argument became even more compelling after the decision in Robinson v
City of Detroit, 462 Mich 439; 613 NW2d 307 (2000), a case concerning the interpretation of the
governmental tort liability act in which the Supreme Court held that the term “the,” being a definite
article, must be construed as referring to a single item: “[W]e must follow these distinctions
between ‘a’ and ‘the.’ ” Id. at 462. The Court went on to state: “[R]ecognizing that ‘the’ is a
definite article, and ‘cause’ is a singular noun, it is clear that the phrase ‘the proximate cause’
contemplates one cause.” Id.The proper ruling in this case can be determined merely by substituting the word
“employer” for “cause” and “proximate cause” in the foregoing passage so that it would read:
“Recognizing that ‘the’ is a definite article and ‘employer’ is a single noun, it is clear that the
phrase ‘the employer’ contemplates one employer.” Thus, following Robinson, when the WDCA1
states that it provides the exclusive remedy as to “the employer,” MCL 418.131(1), it refers to a
single employer.
Putting aside the question of statutory interpretation, it is also clear that ATCO is not a
typical labor broker. It provides professional level specialists to its clients and although their work
places ATCO employees at the client’s workplace, they are not treated as the client’s employees.
They are not fully integrated into the client’s workplace or perform the same work as the client’s
direct employees perform. In this case, in addition to not counting as defendant’s employees for
purposes of worker’s compensation, plaintiff and the other ATCO employees worked under the
direction of ATCO supervisors and could not be assigned to other work by defendant.
Finally, it is evident that the nature of some employment relationships has changed since
the Kidder and Farrell decisions. The “gig” economy has blurred the lines between employers,
contractors, employees and labor brokers. If for no other reason than the need to consider whether
and how to address these changes, the Supreme Court should grant leave to appeal.
/s/ Douglas B. Shapiro
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The language of the act is what controls. “The Workmen’s Compensation Law is a departure,
by statute, from the common law, and its procedure provisions speak all intended upon the subject.
Rights, remedies and procedure thereunder are . . . only[] as the statute provides.” Baughman v
Grand Trunk Western R Co, 277 Mich 70, 72; 268 NW 815 (1936). See also Lash v Traverse City,
479 Mich 180, 189; 735 NW2d 628 (2007) (“We presume that the Legislature intended the
common meaning of the words used in the statute, and we may not substitute alternative language
for that used by the Legislature.”).
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