Michael Crispin v. Barton Malow Builders LLC ( 2024 )

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
MICHAEL CRISPIN, FOR PUBLICATION
April 11, 2024
Plaintiff-Appellant, 9:10 a.m.
V No. 363928
Wayne County Circuit Court
BARTON MALOW BUILDERS, LLC, and LC No. 21-004042-NO
SAYLOR’S, INC.,
Defendants-Appellees.
Before: RIORDAN, P.J., and O’BRIEN and MALDONADO, JJ.
MALDONADO, J.
In this workplace negligence action, plaintiff appeals by delayed leave granted 1 the trial
court’s order granting summary disposition in favor of defendants pursuant to MCR 2.116(C)(7)
(immunity) and (10) (no genuine issue of material fact). We reverse.
I. BACKGROUND
This case calls upon us to answer whether the exclusive remedy provision of the Worker’s
Disability Compensation Act of 1969 (WDCA), MCL 418.101 et seq., bars an employee for a
subcontractor to bring a negligence action against another subcontractor.
Rock Development Company, LLC, was the owner of a project to construct the Wayne
County Criminal Justice Center. Rock Development was represented by Bedrock Management
Services, LLC, and for the purposes of this project, Bedrock Management took out an owner-
controlled insurance program (OCIP) policy with Ace American Insurance Company. This policy
provided that Ace would be the primary coverage provider for all people working at the project
site. Bedrock Management entered into a contract with defendant Barton Malow Builders, LLC,
whereby the latter would serve as general contractor and construction manager for Rock
1
Crispin v Barton Malow Builders LLC, unpublished order of the Court of Appeals, entered May
4, 2023 (Docket No. 363928).
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Development’s project. Barton Malow then hired multiple subcontractors, including defendant
Saylor’s, Inc., and Universal Glass. Plaintiff was employed by Universal Glass and worked on the
project. Plaintiff avers that on October 14, 2020, he was on an aerial lift welding windows on the
fourth floor of the project, while Saylor’s’ employees were installing fireproofing materials
directly above plaintiff on the seventh floor. Plaintiff was injured when a large piece of
fireproofing material being applied by Saylor’s fell and landed on him.
Plaintiff brought a negligence action against defendants. Defendants moved for summary
disposition, arguing that the worker’s compensation benefits plaintiff recovered through Bedrock
Management’s OCIP policy was plaintiff’s exclusive remedy. Plaintiff countered that the
WDCA’s exclusive remedy provision did not apply because he was employed by Universal Glass,
not Saylor’s or Barton Malow. The trial court agreed with defendants and granted summary
disposition. This appeal followed.
II. STANDARDS OF REVIEW
This Court reviews de novo a trial court’s decision to grant or deny a motion for summary
disposition, and the evidence is viewed in a light most favorable to the nonmoving party. West v
Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). In reviewing a motion for summary
disposition pursuant to MCR 2.116(C)(7), this Court must accept the plaintiff’s well-pleaded
allegations as true and construe them in favor of the plaintiff. Beauregard-Bezou v Pierce, 194
Mich App 388, 390;487 NW2d 792 (1992). If there are no facts in dispute, the issue whether the
claim is statutorily barred is a question of law for the Court. Id.A motion for summary disposition under MCR 2.1 l 6(C)(10) tests the factual sufficiency
of the complaint. In evaluating a motion for summary disposition brought under MCR
2.116(C)(10), a trial court considers affidavits, pleadings, depositions, admissions, and other
evidence submitted by the parties in the light most favorable to the party opposing the motion.
MCR 2.116(G)(5). Where the proffered evidence fails to establish a genuine issue regarding any
material fact, the moving party is entitled to judgment as a matter of law. Quinto v Cross & Peters
Co, 451 Mich 358; 457 Mich 358 (1996).
Statutory interpretation is a question of law that this Court reviews de novo. In re Schnell,
214 Mich App 304, 310; 543 NW2d 11 (1995). The primary goal of judicial interpretation of a
statute is to ascertain and give effect to the intent of the Legislature. Frankenmuth Mut Ins Co v
Marlette Homes, Inc, 456 Mich 511, 515; 573 NW2d 611 (1998). The starting point in every case
involving construction of a statute is the language itself. House Speaker v State Admin Bd, 441
Mich 547, 567; 495 NW2d 539 (1993). Nothing will be read into a statute that is not within the
manifest intent of the Legislature as gathered from the statute itself. In re S R, 229 Mich App 310,
314; 581 NW2d 291 (1998). Accordingly, if the statutory language is clear and unambiguous,
judicial construction is neither required nor permitted, and courts must apply the language as
written. Rowell v Security Steel Processing Co, 445 Mich 347, 353; 518 NW2d 409 (1994). Where
the language employed by the Legislature is susceptible to more than one interpretation, judicial
construction is justified. Id.-2-
III. DISCUSSION
Plaintiff argues that the exclusive-remedy provision of the WDCA does not bar his
negligence action because Barton Malow and Saylor’s were not his employers. We agree.
The exclusive remedy provision of the WDCA is found in MCL 418.131, which provides
in relevant part:
(1) The right to the recovery of benefits as provided in this act shall be the
employee’s exclusive remedy against the employer for a personal injury or
occupational disease. The only exception to this exclusive remedy is an intentional
tort. . . .
(2) As used in this section . . . “employer” includes the employer’s insurer
and a service agent to a self-insured employer insofar as they furnish, or fail to
furnish, safety inspections or safety advisory services incident to providing
worker’s compensation insurance or incident to a self-insured employer’s liability
servicing contract. [Emphasis added.]
Thus, a claimant’s exclusive remedy for a workplace injury falling within the WDCA is to recover
worker’s compensation benefits from the employer, and for the purposes of such recovery, the
employer’s insurer is viewed as the employer.
All workers, regardless of their place of employ, assisting with this project were covered
by Bedrock Management’s OCIP policy. OCIP policies are governed by Section 621 of the
WDCA, which provides in relevant part:
Under procedures and conditions specifically determined by the director, a
separate insurance policy may be issued to cover employers performing work at a
specified construction site if the director finds that the liability under this act of
each employer to all his or her employees would at all times be fully secured and
the cost of construction at the site, not including the cost of land acquisition, will
exceed $65,000,000.00, and the contemplated completion period for the
construction will be 5 years or less. . . . [MCL 418.621(3).]
Consistent with this provision, Bedrock Management purchased a policy with Ace that covered all
of the employers whose employees would perform work on the project. Thus, Barton Malow,
Saylor’s, and Universal Glass all provided WDCA-compliant insurance via the policy that Bedrock
Management took out with Ace.
Defendants argue that when Sections 131 and 621 are read in conjunction, it means that all
employers covered by the OCIP policy are entitled to the immunity conferred by the exclusive
remedy provision. Notably, defendants’ arguments are based largely on public policy and what it
perceives to be the purpose of the OCIP legislation as opposed to an analysis of the statutes’ text.
This might be because the text of these sections does not support defendants’ position. MCL
418.131(2) provides that the term employer includes the employer’s insurer for the purposes of
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the exclusive remedy provision, but the suggestion that this means that all subcontractors covered
by the same policy are considered employers of those working for other subcontractors stretches
the language of Section 131 further than it can naturally go. We believe it clear that the reference
to “the employer’s insurer” refers to the policy as it relates to the entity that actually employs the
injured person. Thus, had plaintiff been injured as a result of Universal Glass’s negligence then
recovery from Ace via Bedrock Management’s OCIP policy would be the exclusive remedy.
However, this is not the case if plaintiff is injured by the negligence of an entity that is not his
employer, i.e., Saylor’s. Defendants’ position would suggest that a potential claimant, for the
purposes of the exclusive-remedy position, is “employed” by each entity that uses the same insurer
as the potential claimant’s actual employer, but this clearly was not the Legislature’s intent.
As plaintiff notes, defendants also relied on Section 171 in the trial court, which provides
in relevant part:
(1) If any employer subject to the provisions of this act, in this section
referred to as the principal, contracts with any other person, in this section referred
to as the contractor, who is not subject to this act or who has not complied with the
provisions of section 611, and who does not become subject to this act or comply
with the provisions of section 611 prior to the date of the injury or death for which
claim is made for the execution by or under the contractor of the whole or any part
of any work undertaken by the principal, the principal shall be liable to pay to any
person employed in the execution of the work any compensation under this act
which he or she would have been liable to pay if that person had been immediately
employed by the principal. . . . A contractor shall be deemed to include
subcontractors in all cases where the principal gives permission that the work or
any part thereof be performed under subcontract.
(2) If the principal is liable to pay compensation under this section, he or
she shall be entitled to be indemnified by the contractor or subcontractor. The
employee shall not be entitled to recover at common law against the contractor for
any damages arising from such injury if he or she takes compensation from such
principal. The principal, in case he or she pays compensation to the employee of
such contractor, may recover the amount so paid in an action against such
contractor. [MCL 418.171 (emphasis added).]
This Section protects employees of subcontractors who are not subject to or are not in
compliance with Section 611 by allowing them to recover against the general contractor or project
owner. If the employee receives such compensation then the employer cannot recover against the
immediate employer at common law. Section 611 requires that any employer subject to the
WDCA secure payment of the required compensation by either obtaining authorization to act as a
self-insurer or by purchasing a qualifying insurance policy. MCL 418.611. Section 171 does not
apply to this case because all of the relevant contractors and subcontractors were in compliance
with Section 611 by virtue of Bedrock Management’s OCIP policy.
Our position regarding Section 171 is supported by the relevant caselaw. Plaintiff relies
heavily on Burger v Midland Cogeneration Venture, 202 Mich App 310; 507 NW2d 827 (1993).
Notably, this case involves the interpretation of a prior version of the WDCA that provided for
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“wrap-up” policies—a predecessor to OCIP. In 1994, the Legislature amended MCL 418.621(2)
by way of 1994 PA 271. The prior version provided in relevant part:
Each insurer issuing an insurance policy to cover any employer not
permitted to be a self-insurer under section 611 shall insure, cover, and protect in
one and the same insurance policy, all the businesses, employees, enterprises, and
activities of the employer. Under procedures and conditions specifically
determined by the director, a separate insurance policy may be issued to cover
employers performing work at a specified construction site if the director finds that
the liability under this act of each employer to all his or her employees would at all
times be fully secured and the cost of construction at the site will exceed
$100,000,000.00 and the contemplated completion period for the construction will
be 10 years or less. . . . [Former MCL 418.621(2).]
There are two minor differences between former MCL 418.621(2) and current MCL
418.621(3). First, the former statute required that the cost of construction exceed $100,000,000
whereas the current statute only requires that it exceed $65,000,000 and excludes the cost of land
acquisition. Second, the former statute provided a completion period of 10 years or less whereas
the current statute only allows a 5-year completion period. The major difference is that the current
statute requires that the owner of the project employ a “construction safety and health director”
and lays out detailed requirements for this position. See MCL 418.621(3). However, the thrust of
each version remains the same: it is permissible for one WDCA-compliant insurance policy to
cover everybody who works at a particular construction site regardless of the particular contractor
or subcontractor by whom they are employed.
In Burger, Midland contracted with Fluor Daniel for a construction project, Fluor Daniel
subcontracted with Babcock, and Babcock employed the plaintiff to work at the construction site.
Burger, 202 Mich App at 311. The plaintiff was injured during this work and received benefits
via Midland’s wrap-up policy that it had obtained pursuant to former MCL 418.621(2). Id. at 311-
312. Plaintiff sued Midland and Fluor Daniel for negligence, and the defendants moved for
summary disposition on the basis of their contention that the wrap-up policy caused them to be
statutory employers pursuant to Section 171.2 Id. at 312. According to the defendants, their status
as statutory employers entitled them to the immunity conferred by the exclusive-remedy provision.
Id. On appeal, this Court agreed with the plaintiff’s contention that the defendants were not
statutory employers. Id. at 312-313. This Court explained:
By purchasing the wrap-up policy, Midland complied with the requirement of §
611 that it secure payment of workers’ compensation benefits by obtaining
insurance. Further, by contracting with Midland, Fluor Daniel complied with the
requirement of § 611 that it secure payment of workers’ compensation benefits by
obtaining insurance. Similarly, because Babcock & Wilcox was a named insured
under the wrap-up policy, it also complied with § 611. This being the case, neither
defendant can be a statutory employer under § 171 because neither defendant
contracted with someone who was not subject to the act or who had not complied
2
Section 171 was the same at the time of this case as it is today.
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with § 611, because each was subject to the act and each complied with § 611, as
did Babcock & Wilcox. [Id. at 315
While there have been changes with respect to wrap-up policies versus OCIP policies, the
application of Section 171 remains unchanged.3
IV. CONCLUSION
The trial court’s order granting summary disposition in favor of defendants is reversed.
Plaintiff is free to recover in tort against defendants because he was employed only by Universal
Glass. This case is remanded for additional proceedings consistent with this opinion. We do not
retain jurisdiction. Plaintiff, being the prevailing party, may tax costs. See MCR 7.219(A).
/s/ Allie Greenleaf Maldonado
/s/ Michael J. Riordan
/s/ Colleen A. O’Brien
3
Defendants cite an unpublished decision from the United States District Court for the Eastern
District of Michigan. In Stevenson v HH & N/Turner, unpublished opinion of the United States
District Court for the Eastern District of Michigan, issued April 22, 2022 (Case No. 01-CV-71705-
DT), the plaintiff-employee sustained injuries after falling while working for an electrical
subcontractor at a jobsite. Id. at 2-3. The plaintiff was covered by an OCIP policy and filed a
worker’s compensation claim to receive those benefits; she then sued the defendants, an electrical
subcontractor she was working for, and the construction manager of the project, for negligence.
Id. at 5. The court granted summary disposition in favor of the defendant’s for multiple reasons,
one of which being its conclusion that “the policy underlying both the worker’s compensation law
and OCIPs dictate that Defendants be immune from tort liability in this case.” Id. at 21. We
decline to adopt the reasoning in this opinion because we are uncomfortable with the emphasis
placed on underlying policy consideration. See id. at 21-25. In Michigan, we ascertain the intent
of the Legislature by examining the words it chose in the statutes. See Vermilya v Delta College
Bd of Trustees, 325 Mich App 416, 418-419; 925 NW2d 897 (2018). Upon examining the
language of the statute, we reach a different conclusion. See Linsell v Applied Handling, Inc, 266
Mich App 1, 16; 697 NW2d 913 (2005) (stating that “decisions of a federal district court
interpreting Michigan law are not precedent binding on Michigan courts”).
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