Oleg Zubovich v. June Louise Buell

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
OLEG ZUBOVICH, UNPUBLISHED
August 11, 2022
Plaintiff-Appellee,
v No. 358091
Wayne Circuit Court
JUNE LOUISE BUELL, LC No. 20-007999-NI
Defendant-Appellant,
and
FREMONT INSURANCE COMPANY,
Defendant.
Before: RIORDAN, P.J., and BORRELLO and LETICA, JJ.
PER CURIAM.
Defendant, June Louise Buell,1 appeals by leave granted, Zubovich v Fremont Ins Co,
unpublished order of the Court of Appeals, entered November 17, 2021 (Docket No. 358091), the
trial court’s order denying her motion for summary disposition. We reverse and remand to the
trial court for summary disposition in favor of defendant.
I. FACTUAL BACKGROUND
This case arises out of an accident that occurred on June 1, 2019, at Crystal Gardens in
Southgate, Michigan. Plaintiff, an employee of Crystal Gardens, was picking up trash along a
driveway that led from Fort Street to the Crystal Gardens’ building when he was struck by a car
1
Because only defendant June Louise Buell is a participant in this appeal, use of the term
“defendant” will refer to her and not to the other defendant, Fremont Insurance Company.
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driven by defendant while she was going to work for the same employer in the building itself.
Plaintiff filed for, and received, worker’s compensation benefits.
Plaintiff filed a complaint, alleging (in part) negligence against defendant Buell.
Defendants, Buell and Fremont Insurance Company, moved the trial court for summary
disposition, arguing that, because plaintiff’s injury took place in the course and scope of his
employment, his negligence claim was barred by the worker’s compensation statute, which is the
exclusive remedy for workplace injuries. The trial court concluded:
Gentlemen, I’ve heard enough. And I’m not sure. So given that I’m not sure, the
Court’s going to deny the motion without prejudice. The Court’s going to give—
and I rarely do this, but if brother counsel wants to stay this matter to take an appeal,
I will do that. Because I think some instruction by the Court of Appeals could be
helpful, so.
Defendants moved the trial court for reconsideration, which was denied because defendants
had not shown a palpable error, that, if corrected, would have resulted from the correction of such
an error. This appeal followed.
II. STANDARD OF REVIEW
We review de novo a trial court’s decision to grant or deny summary disposition. Varela
v Spanski, 329 Mich App 58, 68; 941 NW2d 60 (2019). A trial court may grant a motion for
summary disposition under MCR 2.116(C)(10) when the evidence, viewed in the light most
favorable to the nonmoving party, shows that there is no genuine issue as to any material fact and
the moving party is therefore entitled to judgment as a matter of law. West v Gen Motors Corp,
469 Mich 177, 183; 665 NW2d 468 (2003).
III. LAW AND ANALYSIS
Defendant argues the trial court erred in determining that plaintiff’s negligence claim was
not barred by MCL 418.131(1). We agree.
This case deals with certain provisions of the Worker’s Disability Compensation Act
(WDCA) of 1969, MCL 418.101 et seq. “It is well settled that an employee who seeks worker’s
compensation must show by competent evidence not only the fact of an injury, but also that the
injury occurred in connection with his employment, arising out of and in the course of that
employment.” Simkins v Gen Motors Corp, 453 Mich 703, 710; 556 NW2d 839 (1996). The
exclusive remedy provision, as contained in MCL 418.131(1), 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. . . .
In turn, MCL 418.301(3) states, in relevant part:
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An employee going to or from his or her work, while on the premises where
the employee’s work is to be performed, and within a reasonable time before and
after his or her working hours, is presumed to be in the course of his or her
employment.
MCL 418.827(1) states, in relevant part:
Where the injury for which compensation is payable under this act was
caused under circumstances creating a legal liability in some person other than a
natural person in the same employ or the employer to pay damages in respect
thereof, the acceptance of compensation benefits or the taking of proceedings to
enforce compensation payments shall not act as an election of remedies but the
injured employee or his or her dependents or personal representative may also
proceed to enforce the liability of the third party for damages in accordance with
this section. . . .
It is undisputed that plaintiff’s negligence claim is presumptively barred by MCL
418.131(1), which establishes that recovery of worker’s compensation benefits “shall be the
employee’s exclusive remedy against the employer for a personal injury . . . .” MCL 418.131(1).
“It is well settled that the exclusive remedy provision applies when an employee is injured by the
negligent acts . . . of a coemployee.” Harris v Vernier, 242 Mich App 306, 310; 617 NW2d 764
(2000).2
Plaintiff, however, argues that his negligence claim is nonetheless allowed under MCL
418.827(1), which essentially provides that a negligence claim is barred “against a coemployee
only where both employees are acting in the course of their employment at the time the injury
occurred.” Johnson v Arby’s Inc, 116 Mich App 425, 433; 323 NW2d 427 (1982) (emphasis in
original). “Where either party was not acting in the course of employment, however, the statutory
bar does not apply.” Id. Plaintiff agrees that he was acting in the course of employment when he
was injured but contends that defendant was not acting in the course of employment when she
struck him with her vehicle while driving to work.
As noted, MCL 418.301(3) states that “[a]n employee going to or from his or her work,
while on the premises where the employee’s work is to be performed, and within a reasonable time
before and after his or her working hours, is presumed to be in the course of his or her
employment.” Put another way, MCL 418.301(3) establishes a presumption that the employee is
in the course of his or her employment if he or she is going to or from work and is on the premises
and within a reasonable time before or after working hours. “[A]n employee’s course of
employment is not limited to the performance of the very job itself.” Simkins, 453 Mich at 713.
The evidence in this case shows that defendant was in the course of her employment at the
time of the accident under MCL 418.301(3). Defendant was on her way to work, was on the
2
Plaintiff does not argue that the intentional-tort exception of MCL 418.131(1) applies in this case.
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employer’s premises,3 and was within a reasonable time before her working hours. Specifically,
she testified that she was on the employer-owned driveway leading to Crystal Gardens and was
arriving fifteen minutes before her shift, which she normally did. Further, she was not engaged in
any social or recreational activity unrelated to her employment. Therefore, defendant was within
the course of her employment and the exclusive remedy provision of the WDCA applies, barring
plaintiff’s claim against defendant.
Plaintiff’s contention that defendant was not on the employer’s “premises” for the purposes
of MCL 418.301(3) because defendant worked exclusively in a building on the site lacks merit.
Since the term “premises” is not defined in MCL 418.301(3), we will consult the dictionary
definition. See Morinelli v Provident Life & Accident Co, 242 Mich App 255, 262; 617 NW2d
777 (2000). Specifically, the term “premises” is defined, in this context, as “a tract of land with
the buildings thereon” or “a building or part of a building usu[ally] with its appurtenances (as
grounds).” Merriam-Webster’s College Dictionary (11th ed). As such, because the injury to
plaintiff occurred on the undisputed grounds, or premises, of the employer of plaintiff and
defendant, while defendant was arriving for work just before her shift began, plaintiff’s claim is
barred by the WDCA.
Our conclusion in this regard is supported by Ladner v Vander Band, 376 Mich 321; 136
NW2d 916 (1965). In that case, an accident took place in the employer-owned parking lot. Id. at
323. The plaintiff had just finished his shift at work, and the defendant was arriving for the start
of her shift. Id. at 323-324. The accident took place 25 minutes before the defendant’s shift
started. Id. at 324. Our Supreme Court determined that “both were within the statutory ‘reasonable
time’ before or after working hours,” and “both were on the premises of the employer.” Id. at 325.
This case deals with an almost identical scenario. The accident occurred within the statutory
reasonable time and on the employer’s premises.
Plaintiff argues that Kuhlgert v Mich State Univ, 328 Mich App 357; 937 NW2d 716
(2019), is more applicable than Ladner. Kuhlgert involved a German national plaintiff who was a
postdoctoral research associate at Michigan State University (MSU). Id. at 363. While walking
from her place of work to her car, which was parked in a MSU lot, the plaintiff was struck by a
MSU vehicle. Id. At this point, she was approximately 900 feet from her place of work. Id. We
held that, while the WDCA did not apply because the plaintiff was a foreign national exempt from
the definition of “employee” under MCL 418.161(1)(b), she still would be unable to bring a tort
claim regardless of her exemption status because she was not injured in the course of her
employment. Id. at 372. We reasoned that the plaintiff had not been acting in the course of her
employment because she was 900 feet away from her place of work and was walking to a parking
lot she was not required by her employer to use. Id. at 375-376. We explained that because MCL
418.301(3) speaks not merely of the employer’s premises, but “rather of ‘the premises where the
employee’s work is to be performed,’ ” the statute “distinguish[es] between locations on the
3
During the motion hearing in the trial court, plaintiff’s counsel conceded that plaintiff “was
technically on the Crystal Gardens overall premises” when he was injured and that the driveway
on which he was injured was “Crystal Garden’s [sic] property.”
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employer’s premises in the vicinity of the actual place of employment and those locations that are
far removed from the actual place of employment.” Id. at 376.
Kuhlgert clearly is distinguishable from the matter before us. Kuhlgert explained that
“[t]he large and contiguous nature of MSU’s main campus weighs against looking at MSU’s
premises generally, and instead favors focusing more specifically on Ostendorf’s actual workplace
within the premises of the Biology Laboratories Building.” Id. at 375. Crystal Gardens, as visually
illustrated in an exhibit to defendants’ motion to summary disposition, is not comparable in size
to MSU’s main campus. Moreover, the plaintiff in that case was not on a driveway that served the
substantial purpose of allowing access to the worksite at issue. The driveway where plaintiff was
injured in this case, in contrast, was essentially part of the “premises where the employee’s work
is to be performed[.]” MCL 418.301(3). It was largely necessary to access the worksite and
therefore was a “location[] on the employer’s premises in the vicinity of the actual place of
employment,” not a “location[] that [is] far removed from the actual place of employment.” Id. at
376. For these reasons, plaintiff’s comparison of his claim to Kuhlgert falls short.
Plaintiff’s negligence claim is barred by both the WDCA and the Michigan caselaw
interpreting it. Therefore, trial court erred in denying defendants’ motion for summary disposition.
IV. CONCLUSION
We reverse the trial court’s denial of defendants’ motion for summary disposition without
prejudice and remand to that court for entry of summary disposition in favor of defendant. We do
not retain jurisdiction.
/s/ Michael J. Riordan
/s/ Stephen L. Borrello
/s/ Anica Letica
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