Winters v. Dalton , 207 Mich. App. 76 ( 1994 )

207 Mich. App. 76 (1994) 523 N.W.2d 636

WINTERS
v.
DALTON

Docket No. 151334.

Michigan Court of Appeals.

Submitted July 13, 1994, at Lansing. Decided September 20, 1994, at 9:20 A.M.

Musilli, Baumgardner, Wagner & Parnell, P.C. (by Ralph Musilli), for the plaintiff.

Wendt, Wendt, Van Eman & Candela (by James J. Van Eman, III), for the defendants.

Before: DOCTOROFF, C.J., and SHEPHERD and J.R. KIRWAN,^[*] JJ.

PER CURIAM.

Plaintiff filed this suit seeking damages for personal injuries suffered in an automobile accident. Defendants appeal as of right from the trial court's denial of their motions for summary disposition, reconsideration, and a directed verdict of dismissal based on the lack of subject-matter jurisdiction. We reluctantly reverse.

On September 7, 1988, plaintiff was a passenger in a vehicle owned by Kemp, plaintiff's employer, and driven by Dalton, a co-worker, and was on his way home after work. While riding in the car, plaintiff was performing one of his job duties, i.e., sorting concrete tickets, but he was not "on the clock." Dalton drove into the back of a bus and plaintiff was seriously injured.

Before instituting this case, plaintiff contacted Kemp's worker's compensation carrier, Aetna Casualty and Surety Company, regarding benefits. Aetna denied his claim, stating his injuries were not work-related. Plaintiff then instituted this action.

Before trial, defendants filed a motion for summary disposition, arguing that the trial court lacked subject-matter jurisdiction because the issues concerning whether plaintiff received injuries and whether they arose in the course of employment are exclusively within the purview of the Bureau of Worker's Disability Compensation. Defendants argued that plaintiff should be compelled to file an application for hearing with the bureau and obtain a determination whether he was injured in the course of employment before being allowed to pursue this civil action.

The trial court denied defendants' motion, stating that they had waived the issue of subject-matter jurisdiction by virtue of their tardy assertion of the issue and by virtue of the denial of worker's compensation benefits.

The trial court erred in ruling that the dispute regarding subject-matter jurisdiction could be waived by defendants' conduct. The determination regarding whether an employee's injuries grew out of or occurred in the course of the employment relationship is initially within the exclusive jurisdiction of the Bureau of Worker's Disability Compensation. Adams v Nat'l Bank of Detroit, 444 Mich 329; 508 NW2d 464 (1993); Szydlowski v General Motors Corp, 397 Mich. 356; 245 NW2d 26 (1976). Lack of subject-matter jurisdiction may be raised at any time, and parties to an action can neither confer jurisdiction by their conduct or action nor waive the defense by not raising it. Paulson v Secretary of State, 154 Mich. App. 626; 398 NW2d 477 (1986).

That is not to say that we condone the actions of Kemp's automobile insurance carrier and worker's compensation carrier, Aetna. We find Aetna's tactics — denying plaintiff's claim for worker's compensation benefits in its role as the employer's worker's compensation carrier and then demanding that plaintiff seek a determination from the Bureau of Worker's Disability Compensation before being allowed to pursue this civil action in its role as Kemp's automobile insurance carrier — distasteful and nothing more than an attempt to play "fast and loose" with the courts. Were the issue here any other than that of the circuit court's subject-matter jurisdiction, we would invoke the doctrine of judicial estoppel and prevent Kemp from arguing that plaintiff must seek a determination from the bureau before pursuing this action. However, we are bound to take notice of the limits of the circuit court's subject-matter jurisdiction. Paulson, supra.

Plaintiff has not preserved for appeal his claim regarding the propriety of this suit under the dual-capacity doctrine and no manifest injustice will result from this Court's failure to review the issue. Earl v White, 155 Mich. App. 152; 399 NW2d 40 (1986). If the Bureau of Worker's Disability Compensation determines that plaintiff was injured in the course of his employment, defendant Kemp's status as owner of the vehicle is not completely independent from and unrelated to his status as employer so as to allow suit under the dual-capacity doctrine. Wells v Firestone Tire & Rubber Co, 421 Mich. 641; 364 NW2d 670 (1984).

This case is remanded to the trial court and plaintiff is instructed to file a claim with the Bureau of Worker's Disability Compensation within thirty days. If plaintiff timely files his claim, the trial court is ordered to hold this case in abeyance pending the decision of the bureau. If the bureau finds that plaintiff's injuries are work-related or if plaintiff fails to file timely his claim or to seek timely review of this Court's decision in the Supreme Court, the trial court shall dismiss the action before it. If the bureau finds that the injuries are not work-related, the trial court shall proceed to enforce the judgment in this case.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

NOTES

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