Bowden v. McAndrew

173 Mich. App. 591 (1988) 434 N.W.2d 195

BOWDEN
v.
McANDREW

Docket No. 95172.

Michigan Court of Appeals.

Decided December 19, 1988.

Goodman, Eden, Millender & Bedrosian (by Joan Lovell), for plaintiff.

Siemion, Huckabay, Bodary, Padilla & Morganti, P.C. (by Mark A. Roberts and Thomas M. Caplis), for First Savings Association of Ypsilanti.

Before: GRIBBS, P.J., and SHEPHERD and J.R. COOPER,^[*] JJ.

GRIBBS, P.J.

Defendant First Savings Association of Ypsilanti appeals by leave granted from a Wayne Circuit Court order denying its motion for summary disposition. We reverse.

The primary issues before us in this case are whether the Bank Protection Act of 1968 (BPA), 12 USC 1881 et seq., provides plaintiff Clarice Bowden with a private cause of action and whether her claims are barred by the exclusive remedy provision of the Workers' Disability Compensation Act, MCL 418.131; MSA 17.237(131).

Plaintiff Clarice Bowden was employed by defendant First Savings Association as a bank teller at the bank's office on West Michigan in Ypsilanti. She was apparently the only person present at the bank at 12:40 P.M. on March 28, 1984, when an attempted robbery took place. At that time, Larry Donald Konopski entered the bank carrying an empty pellet gun and demanded that plaintiff give him $250,000. She pulled a money clip located in a drawer to activate a silent alarm. The police eventually arrived and, upon seeing them, Konopski pulled a knife and cut her face and body. The police shot and killed Konopski. Following the incident, the bank voluntarily paid to her workers' disability compensation benefits during the time she was unable to work.

She subsequently filed a two-count complaint, alleging that the bank intentionally breached its duties to provide adequate security devices and to instruct her in their safe use, in violation of the BPA, and that the bank was liable to her under a premises liability theory. Her husband, Stanley Bowden, joined in the suit for loss of consortium.

The bank filed a motion for summary disposition under MCR 2.116(C)(4), (8) and (10), arguing that the BPA does not provide a private right of action and that plaintiff's exclusive remedy against the bank was under the Workers' Disability Compensation Act. The trial court denied the bank's motion.

On appeal, the bank contends that Clarice Bowden's claim against the bank for an intentional tort is barred by the exclusive remedy provision of the Workers' Disability Compensation Act. We agree.

The Workers' Disability Compensation Act, MCL 418.101 et seq.; MSA 17.237(101) et seq., provides that an injured employee's "exclusive remedy against the employer" is the right to recover benefits under the WDCA. MCL 418.131; MSA 17.237(131); Whaley v McClain, 158 Mich. App. 533, 535; 405 NW2d 187 (1987). However, our Supreme Court recently held that employees' actions against their employers for intentional torts are not barred by the exclusive remedy provision, § 131, of the WDCA. Beauchamp v Dow Chemical Co, 427 Mich. 1, 11; 398 NW2d 882 (1986). The Court further adopted the "substantial certainty" definition for an intentional tort: "If the injury is substantially certain to occur as a consequence of actions the employer intended, the employer is deemed to have intended the injuries as well." Beauchamp, 427 Mich. 22. The Court stressed that substantial certainty should not be confused with substantial likelihood. Beauchamp, 427 Mich. 20, 22, 25. See also Boyer v Louisville Ladder Co, Inc, 157 Mich. App. 716, 718-719; 403 NW2d 210 (1987), lv den 428 Mich. 905 (1987). In adopting the "substantial certainty" definition of an intentional tort, the Court rejected the "true intentional tort" definition, i.e., that the employer truly intended the injury as well as the act.

After Beauchamp was decided, the Legislature amended the exclusive remedy provision of the WDCA, § 131. The amended provision, which specifically includes an exception for the intentional torts of employers, states:

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. An intentional tort shall exist only when an employee is injured as a result of a deliberate act of the employer and the employer specifically intended an injury. An employer shall be deemed to have intended to injure if the employer had actual knowledge that an injury was certain to occur and wilfully disregarded that knowledge. This issue of whether an act was an intentional tort shall be a question of law for the court. This subsection shall not enlarge or reduce rights under law. [MCL 418.131(1); MSA 17.237(131)(1).]

Another panel of this Court recently addressed the application of the amendment, explaining that the amendatory language was prompted by the desire to correct or clarify the existing uncertainty regarding the original act and that it operates retroactively. Schefsky v Evening News Ass'n, 169 Mich. App. 223; 425 NW2d 768 (1988). We agree. In any event, using either the "substantial certainty" standard set forth in Beauchamp or the amendatory language, we believe that plaintiff's complaint sets forth a cause of action sounding in negligence, not an intentional tort and, thus, is barred by the exclusive remedy provision of the WDCA, § 131.

In this case, Bowden did not plead that the bank specifically intended to injure her or that it had actual knowledge that an injury was certain to occur. Nor did she allege that the bank had ever been warned or cited for violations of the BPA, or that the bank in which she worked had ever been robbed before. Even accepting her statements in her complaint as true, as we must, we do not believe that she stated a cause of action for an intentional tort. Since her cause of action is barred by the exclusivity provision, her husband's derivative claim is also barred. Bourassa v ATO Corp, 113 Mich. App. 517, 520; 317 NW2d 669 (1982), lv den 414 Mich. 966 (1982).

Next, the bank argues that the BPA, upon which Bowden also bases a claim, does not provide for a private cause of action. We agree.

In her complaint, she alleged that the bank is a member of the Federal Savings & Loan Insurance Corporation and the Federal Home Loan Bank system and, thus, is subject to the BPA. The BPA, 12 USC 1882(a), provides:

Within six months from July 7, 1968, each Federal supervisory agency shall promulgate rules establishing minimum standards with which each bank or savings and loan association must comply with respect to the installation, maintenance, and operation of security devices and procedures, reasonable in cost, to discourage robberies, burglaries, and larcenies and to assist in the identification and apprehension of persons who commit such acts.

The minimum security devices and procedures for a Federal Savings & Loan Insurance Corporation are set forth in 12 CFR 563a.

Bowden alleged in her complaint that the bank violated the BPA and its rules in the following manner:

1. Failing to provide bullet-resistant barriers between tellers and the public;

2. Failing to provide trained security guards during business hours;

3. Failing to provide Plaintiff with any training in the use of the alarm system and any other security devices that may have been present;

4. Failing to provide an alarm system capable of being activated without detection by persons in the act of robbing the bank;

5. Failing to instruct Plaintiff as to how to conduct herself during a robbery so as to avoid increasing danger to herself; and

6. Allowing Plaintiff to be in the bank alone and unaided for a long period of time in the middle of the day which [sic] she had not been trained in security procedures and had worked in the bank for only a brief time.

In this appeal, the parties do not address whether, in fact, the bank violated the BPA. The threshold issue being addressed is whether the BPA even provides for a private cause of action.

In determining whether Congress intended to create a private remedy in a statute not expressly providing one, several factors are relevant:

First, is the plaintiff "one of the class for whose especial benefit the statute was enacted," Texas & Pacific [R Co v Rigsby, 241 U.S. 33, 39; 36 S. Ct. 482; 60 L. Ed. 874] (1916) (emphasis supplied) — that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? See, e.g., National Railroad Passenger [Corp v National Ass'n of Railroad Passengers, 414 U.S. 453, 458, 460; 94 S. Ct. 690; 38 L. Ed. 2d 646] (1974) (Amtrak). Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? See, e.g., Amtrak, supra; Securities Investor Protection [Corp v Barbour, 421 U.S. 412, 423; 95 S. Ct. 1733; 44 L. Ed. 2d 263] (1975); Calhoon [v Harvey, 379 U.S. 134; 85 S. Ct. 292; 13 L. Ed. 2d 190] (1964). And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law? [Cort v Ash, 422 U.S. 66, 78; 95 S. Ct. 2080; 45 L. Ed. 2d 26 (1975). Some citations omitted.]

The central inquiry, however, is whether Congress intended to create, either expressly or impliedly, a private cause of action when it enacted the statute at issue. Touche Ross & Co v Redington, 442 U.S. 560, 575-576; 99 S. Ct. 2479; 61 L. Ed. 2d 82 (1979); Marx v Centran Corp, 747 F2d 1536, 1544 (CA 6, 1984), cert den 471 U.S. 1125; 105 S. Ct. 2656; 86 L. Ed. 2d 273 (1985).

Regarding the first Cort factor, whether Bowden is one of the class for whose "especial" benefit the statute was enacted, the question is not simply who would benefit from the statute, but whether Congress intended to confer federal rights upon these beneficiaries. California v Sierra Club, 451 U.S. 287, 294; 101 S. Ct. 1775; 68 L. Ed. 2d 101 (1981); Howard v Pierce, 738 F2d 722, 724 (CA 6, 1984). The language of the BPA itself is silent concerning for whose benefit the act was enacted. The only hint of the purpose of the statute is contained in § 1882(a), wherein the act requires that each bank or savings and loan association comply with rules establishing minimum security standards to discourage robberies, burglaries and larcenies and to assist in the identification and apprehension of persons who commit such acts.

The legislative history is more instructive. Senate Report No. 1263, 1968 US Code Congressional and Administrative News 2530, 2531-2532 notes the following:

Statistics from the Federal Bureau of Investigation reveal that crimes against financial institutions have been rising steadily during the period of the last 10 or 15 years....

While most banking institutions are insured against losses from robberies and similar crimes, the dollar value of these losses is large and is increasing at a rapid rate. In 1967 the total financial losses to banking institutions as a result of robberies, burglaries, and larcenies were approximately $15,007,508. However, more important than these monetary losses are the injuries and deaths often suffered by bank employees and customers during bank holdups. Law enforcement officials and innocent bystanders in the streets also sometimes fall victim to the shootings and high-speed automobile chases that follow the robbery of a financial institution.

* * *

Another important reason for reducing bank crimes is the expense of investigating these crimes, which frequently involves the expenditure of more public funds than was taken during the offense. The Department of Justice called the attention of the subcommittee to one case where more than $250,000 was expended during the investigation of one banks robbery. Robberies and other crimes against banks also tend to increase the cost of banking services to bank customers.

Although Bowden, as a bank teller, appears to be one who would benefit from the statute, we do not believe that she is a member of a class for whose "especial" benefit the statute was enacted. Congress was clearly concerned with the increase in bank crimes not only because of the injuries and deaths suffered by bank tellers, customers, law enforcement officials and innocent bystanders during and after bank holdups, but also because of the dollar losses and the expense to the public of investigating these crimes. Hence, we conclude that the statute was enacted to protect the public in general, not to confer federal rights upon bank tellers and customers.

The second Cort factor, whether there is an explicit or implicit indication of legislative intent either to create a private remedy or deny one, requires a consideration of legislative history. Cannon v University of Chicago, 441 U.S. 677, 694; 99 S. Ct. 1946; 60 L. Ed. 2d 560 (1979). The legislative history of a statute that does not expressly create or deny a private remedy will usually be equally silent or ambivalent on the question. Cannon, 441 U.S. 694. Here, the statute is silent. Neither the language of the BPA itself nor the legislative history indicates whether Congress intended to create or deny a private remedy. The Supreme Court has been reluctant to imply a cause of action under statutes which create benefits for the general public as does this one. Howard, 738 F2d 725-726.

Moreover, in Touche Ross & Co, supra, the Supreme Court noted that in past cases in which it found an implied private cause of action, the statute in question at least prohibited certain conduct or created federal rights in favor of private parties. Touche Ross, 442 U.S. 569. Although the BPA provides that a savings and loan association must comply with the rules promulgated under the act, it does not itself prohibit certain conduct. Nor, as discussed above, does it create federal rights in favor of Bowden. Because the legislative history of the BPA does not address the issue of private remedies, grants no private rights to any identifiable class and proscribes no conduct as unlawful, the question whether Congress, either expressly or by implication, intended to create a private right of action has been answered in the negative. Touche Ross, 442 U.S. 576. Accordingly, we conclude that Congress did not intend to create a private cause of action under the BPA in favor of Bowden.

Reversed.

NOTES

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