Hesse v. Ashland Oil, Inc

Michigan Supreme Court

Lansing, Michigan 48909

____________________________________________________________________________________________

C hief Justice Justices

Maura D. Cor rigan Michael F. Cavanagh

Opinion

Elizabeth A. Weaver

Marilyn Kelly

Clifford W. Taylor

Robert P. Young, Jr.

Stephen J. Markman

____________________________________________________________________________________________________________________________

FILED APRIL 24, 2002

KENNETH D. HESSE, Personal

Representative of the Estate of

JASON L. HESSE, Deceased, KENNETH

D. HESSE, CYNTHIA R. HESSE, and

AMY R. HESSE, a Minor, by her next

friend, Kenneth D. Hesse,

Plaintiffs-Appellees,

v No. 118548

ASHLAND OIL, INC., formerly known as

Ashland, Inc., a foreign corporation,

doing business as Valvoline Instant Oil

Change and as the Valvoline Company,

Defendant-Appellant,

and

CHIPPEWA VALLEY SCHOOLS, JAMES J.

RIVARD, JAMES P. MURPHY, and RUTH

ANN BOOMS, Jointly and Severally,

Defendants.

________________________________

PER CURIAM

In this case, plaintiffs, the parents of the decedent1,

claimed that the decedent’s employer was liable in tort for

the negligent infliction upon plaintiffs of emotional

distress, caused when plaintiffs were present at their son’s

workplace at the time of his death. The circuit court denied

defendant’s motion for summary disposition. The Court of

Appeals granted leave to appeal and affirmed the denial of

summary disposition on the claim of negligent infliction of

emotional distress.2 We reverse in part the judgment of the

Court of Appeals and remand this case to the Macomb Circuit

Court for entry of summary disposition in favor of the

defendant on the claim of negligent infliction of emotional

distress. Plaintiffs’ cause of action is barred by the

exclusive remedy provision of the Worker’s Disability

Compensation Act (WDCA), MCL 418.131.

I

The sixteen-year-old decedent was hired by defendant

Ashland Oil, Inc.,3 through the Chippewa Valley Schools’ work

1

The decedent’s minor sister is also named as a

plaintiff by virtue of her loss of consortium claim. Because

that claim is not implicated in this appeal, further

references to “plaintiffs” in this case refer only to the

parents of the decedent.

2

The Court of Appeals agreed with defendant that the

trial court erred in denying summary disposition of the claims

of intentional tort and breach of contract. Those claims are

not before us.

3

While there are multiple defendants in this case, only

defendant Ashland Oil is a party to this appeal. Accordingly,

further references to “defendant” in this case refer only to

2

study plan. After securing a work permit, decedent began

working for defendant at defendant’s “Instant Oil Change”

service facility. On June 2, 1995, a customer brought in a

five-gallon bucket that was filled with a liquid believed by

a coemployee of decedent to be waste oil. Following

procedures outlined by the defendant, the bucket was emptied

into a “catch basin.” Toward the end of normal business

hours, there was a problem with draining the catch basin. The

coemployee set about to check the level of the waste oil in

the catch basin. He purportedly did this by using a

disposable lighter, which caused an explosion.4 In the

ensuing fire, decedent was killed. Decedent’s parents learned

of the explosion and fire almost immediately and went to the

service center. While at the service center, plaintiffs were

told of their son’s death.

II

Plaintiffs sued their son’s employer, his school, and

employees of the school.5 Of the several causes of action

brought by plaintiffs against defendant Ashland, only one

Ashland Oil.

4

The coemployee denied he had used the lighter to look

inside the catch basin. For purposes of resolution of the

issue presented by defendant, it is unnecessary to resolve

this factual dispute.

5

Decedent’s parents filed several causes of action

including breach of contract, gross negligence, and

intentional tort. Additionally, decedent’s minor sister filed

an action for loss of consortium. Decedent’s father also sued

defendant as personal representative of his son’s estate.

3

remained after the Court of Appeals issued its unpublished per

curiam opinion on January 12, 2001 (Docket No. 209075). This

was a claim by plaintiffs of negligent infliction of emotional

distress.6 Plaintiffs claimed damages from witnessing the

death of their child. Defendant asserts that the cause of

action is barred by the exclusive remedy provision of the

WDCA, MCL 418.131, which states:

(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. 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 willfully disregarded that

knowledge. The 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.

(2) As used in this section and section 827,

“employee” includes the person injured, his or her

personal representatives, and any other person to

whom a claim accrues by reason of the injury to, or

death of, the employee, and “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

6

Plaintiffs’ cause of action is sometimes referred to as

“bystander recovery,” and its elements are set forth in

Wargelin v Sisters of Mercy Health Corp, 149 Mich App 75; 385

NW2d 732 (1986). This Court has never recognized the

existence of such a cause of action, and we decline to discuss

the validity of plaintiffs’ claim at this time because a

discussion of the merits of the claim is unnecessary to our

determination.

4

insured employer's liability servicing contract.

[Emphasis added.]

III

The Court of Appeals held that the claim for negligent

infliction of emotional distress brought by plaintiffs, even

when it concerned a work-related accident, was a separate tort

and thus not within the bar of the exclusive remedy provision.

The plain language of the statute, however, states that the

exclusive remedy for an employee, including “his or her

personal representatives, and any other person to whom a claim

accrues by reason of the injury to, or death of, the

employee,” is found in the WDCA. MCL 418.131(2).

This provision is dispositive of this case. Here, the

plaintiffs’ claim has accrued by reason of the death of an

employee of the defendant. The plaintiffs are within the

category of individuals barred from suit, namely, as defined

by § 131(2) of the WDCA, “any other person to whom a claim

accrues by reason of the . . . death of . . . the employee .

. . .” Thus, the claim is barred.

In asserting that plaintiffs’ negligent infliction of

emotional distress claim is not barred by MCL 418.131, the

Court of Appeals and the dissent here rely substantially on

Barnes v Double Seal Glass Co, Inc, 129 Mich App 66; 341 NW2d

812 (1983), and Auto Club Ins Ass’n v Hardiman, 228 Mich App

470; 579 NW2d 115 (1998). However, those cases are materially

5

distinguishable from the present case and, consequently, offer

little guidance in its resolution.

Barnes also involved a tragic workplace death of a

sixteen-year-old. In that case, the Court of Appeals held

that the trial court erred, on the basis of the exclusive

remedy provision of the WDCA, in granting summary disposition

in favor of the employer with regard to the claim of the

employee’s parents for intentional infliction of emotional

distress. Id. at 75-76. This result does not seem unusual in

any way because MCL 418.131(1) provides for an intentional

tort exception to the exclusive remedy rule of the worker’s

compensation scheme and that is the exception the Barnes’ suit

invoked. Thus, since the instant case involves a

nonintentional tort claim, i.e., negligent rather than

intentional infliction of emotional distress, the Barnes

holding is inapposite.

Similarly, the holding of Hardiman is inapposite to the

resolution of the present case. Most importantly, Hardiman

did not involve a worker’s compensation question; rather, it

dealt with the narrow question whether damages in a non­

worker’s compensation civil lawsuit, involving a “negligent

infliction of emotional distress” claim, constituted

“derivative damages” so that insurance coverage could be

limited.7 This issue of law is irrelevant to a discussion of

7

Evidently, the negligent infliction of emotional

distress claim in Hardiman was based on an incident in which

6

the nuances of the exclusive remedy provision of the WDCA.

While there is discussion in Hardiman of the distinctions

between derivative and independent actions in civil

litigation, the statute here, MCL 418.131, controls the

lawsuit in the instant case. This statute never alludes to

derivative or independent actions, but simply states that

claims accruing “by reason of the injury to, or death of, the

employee” are barred. Thus, because these plaintiffs have

claims that have accrued “by reason of” the death of the

employee, they are without a remedy, and nothing Hardiman

states affects this in the slightest.

Moreover, although we regard the plain language of MCL

418.131 as decisive, we believe that our decision is

reinforced by an understanding of the history of the exclusive

remedy provision of the WDCA. Helpful in this regard are this

Court’s companion decisions in Moran v Nafi Corp, 370 Mich

536; 122 NW2d 800 (1963), and Balcer v Leonard Refineries,

Inc, 370 Mich 531; 122 NW2d 805 (1963). In both Moran and

Balcer, we addressed whether a claim for loss of consortium

against an employer based on an injury suffered by a spouse as

an employee was barred by the then much less well-defined

a six-year-old witnessed her brother being struck by an

automobile, which rendered the brother a paraplegic. Id. at

472. The Hardiman panel concluded that a claim for negligent

infliction of emotional damages is not “derivative” because it

“may be maintained as a separate, independent cause of action

and is not dependent upon actual injury to, or recovery by,

another person.” Id. at 475.

7

exclusive remedy provision of the Workmen’s Compensation Act,

which did not then, as it does now, expressly extend to

persons other than an employee.8

Notwithstanding the much less sweeping language in the

old statute, Justice O’Hara writing for the Court had no

trouble concluding in Moran that, not just an employee, but

also a third party, was barred from maintaining a cause of

action against an employer under the exclusive remedy

provision. Justice O’Hara said:

Under the above section and the title of the

act, as previously discussed, we believe any

broadening of the base of recovery against the

employer as a result of an industrial injury to

include an action at law by any other person must,

if it is to be authorized, be authorized by

legislative action. We hold the legislative intent

expressed in the act precludes the judicial

construction contended for by plaintiff and adopted

by the learned trial judge [which would have

allowed the loss of consortium claim to go

forward]. [Id. at 543.][9]

8

The language of MCL 411.4, the predecessor of MCL

418.131, as then in effect, stated simply:

Where the conditions of liability under this

act exist, the right to the recovery of

compensation benefits, as herein provided, shall be

the exclusive remedy against the employer.

9

Three justices joined the lead opinion of Justice

O’Hara in Moran that contained this holding. At the time,

there were eight justices on this Court. In a concurring

opinion, Chief Justice Carr, joined by two other justices,

stated “[w]e are in accord with the holding of Mr. Justice

O’Hara that the rights granted by the workmen’s compensation

act to an employee who sustained an injury arising out of and

in the course of his employment are exclusive.” Id. at 545.

Thus, the above-quoted holding from the lead opinion in Moran

regarding the exclusivity of the Workmen’s Compensation Act

constituted a majority holding of this Court. Chief Justice

8

In Balcer, which was considered and released with Moran,

Justice Smith concluded to similar effect that the exclusive

remedy provision barred a claim by a third party against the

employer on the basis of an injury to an employee. He offered

historical background that is edifying:

“The history of the development of statutes,

such as this, creating a compensable right

independent of the employer’s negligence and

notwithstanding an employee’s contributory

negligence, recalls that the keystone was the

exclusiveness of the remedy. This concept emerged

from a balancing of the sacrifices and gains of

both employees and employers, in which the former

relinquished whatever rights they had at common law

in exchange for a sure recovery under the

compensation statutes, while the employers on their

part, in accepting a definite and exclusive

liability, assumed an added cost of operation which

in time could be actuarially measured and

accurately predicted; incident to this both parties

realized a saving in the form of reduced hazards

and costs of litigation.” [Id. at 535 (Smith, J.),

quoting Smither & Co, Inc v Coles, 100 US App DC

68, 70; 242 F2d 220 (1957) (emphasis in Balcer).]

Our holding in this case is also consistent with the

overview of the different approaches to the exclusive remedy

provision that Justice Smith discussed in Balcer at 533-534,

Carr’s opinion included additional discussion of his view that

this Court should not have adopted a cause of action for loss

of consortium, id. at 544-545, which presumably was his reason

for writing separately.

Similarly, in Balcer, the lead opinion, which was joined

by four of the eight participating justices, indicated that

the plain language of MCL 411.4 as then in effect barred the

wife’s loss of consortium claim. Id. at 532-533 (Smith, J.).

The other four justices concurred for the reasons set forth in

Moran, supra. Id. at 535 (Carr, C.J.).

9

quoting 2 Larson, Workmen’s Compensation, § 66.10, p 141, as

follows:

“There are 3 general types of ‘exclusive

liability’ clause which, for present purposes, must

be carefully identified with the cases that depend

upon them; from the narrowest to the broadest, they

are as follows: the Massachusetts type, which only

says that the employee, by coming within the act,

waives his common-law rights; the California and

Michigan type, which say that the employer’s

liability shall be ‘exclusive,’ or that he shall

have ‘no other liability whatsoever’; and the New

York type, which carries this kind of statute 1

step further by specifying that the excluded

actions include those by ‘such employee, his

personal representatives, husband, parents,

dependents or next of kin, or anyone otherwise

entitled to recover damages, at common law or

otherwise on account of such injury or death.’”

[Emphasis in Balcer.]

Since this was written in 1963, MCL 418.131 has been enacted

and has, of course, moved Michigan into the “New York type” of

exclusive remedy provision under which it is even more clear

that a third party ordinarily cannot recover damages from an

employer on the basis of an employee’s death.

Against this background, it is all the more appropriate

that, as with our predecessors, we should continue to accord

a plain reading to the current exclusive remedy provision,

which unambiguously bars from suit “any other person to whom

a claim accrues by reason of the injury to, or death of, the

employee.”

No one would disagree with the dissent that the death

underlying this case occurred under tragic and horrific

circumstances. However, our empathy for plaintiffs does not

10

justify this Court ignoring the plain language of MCL 418.131,

which bars the imposition of liability on defendant in the

present circumstances. It could be argued, as undoubtedly it

has been before the Legislature, that the law should allow a

cause of action under circumstances like those in this case.

Yet, as Justices Smith and O’Hara and the many others on this

Court who have written or signed opinions to a similar effect

have understood, this is a policy matter—which is to say, it

is not this Court’s choice to make. Rather, we, as judges,

must apply the legislation as it is written. As Justice

Cavanagh stated for a unanimous Court in Huggett v Dep’t of

Natural Resources, 464 Mich 711, 717; 629 NW2d 915 (2001):

If the statutory language is clear and

unambiguous, then we conclude that the Legislature

intended the meaning it clearly and unambiguously

expressed, and the statute is enforced as written.

No further judicial construction is necessary or

permitted.

Justice Kelly not only joined that statement, but earlier

stated in her unanimous opinion in Chandler v Dowell

Schlumberger Inc, 456 Mich 395, 406; 572 NW2d 210 (1998), with

regard to the statute at issue there, that “[t]he Legislature

can and may rewrite the statute, but we will not do so.” The

dissent, we assume, still adheres to this rule, but deflects

the thrust of it by the claim that the language of the statute

at issue is ambiguous and, thus, the judiciary is free to

interpret its meaning. The worth of this argument, we

believe, is self-evident to those who read this

11

straightforward statute and the statute’s consistent and

unvarying judicial construction over the whole of the era of

worker’s compensation.

In sum, plaintiffs’ claim against defendant for negligent

infliction of emotional distress is barred by the exclusive

remedy provision of the WDCA contained in MCL 418.131.

IV

We reverse, in part, the judgment of the Court of Appeals

and remand to the Macomb Circuit Court for summary disposition

in favor of defendant. We do not retain jurisdiction.

CORRIGAN , C.J., and WEAVER , TAYLOR , YOUNG , and MARKMAN , JJ.,

concurred.

12

S T A T E O F M I C H I G A N

SUPREME COURT

KENNETH D. HESSE, Personal

Representative of the Estate of

JASON L. HESSE, deceased, KENNETH

D. HESSE, CYNTHIA R. HESSE, and

AMY R. HESSE, a minor, by her next

friend, Kenneth D. Hesse,

Plaintiffs-Appellees,

v No. 118548

ASHLAND OIL, INC., formerly known

as Ashland, Inc., a foreign

corporation, doing business as

Valvoline Instant Oil Change and

as the Valvoline Company,

Defendant-Appellant,

and

CHIPPEWA VALLEY SCHOOLS, JAMES J.

RIVARD, JAMES P. MURPHY, and RUTH

ANN BOOMS, jointly and severally,

Defendants.

___________________________________

KELLY, J. (dissenting).

In its efforts to read the law scrupulously, the majority

has misconstrued the exclusive remedy provision of the

Worker's Disability Compensation Act,1 giving it meaning never

intended by its framers. Plaintiffs allege an injury to

themselves, not to their son. Because their claim falls

outside the scope of the act, this Court should affirm the

decision of the Court of Appeals.

I. Factual and Procedural Background

Plaintiffs witnessed a terrible accident that they assert

was caused by defendant's negligence. They arrived at the

service center simultaneously with fire fighters and found the

building where their son Jason worked aflame from the

explosion that had occurred there minutes before. The fire

was burning too strongly for plaintiffs or anyone else to

rescue Jason from inside. Mrs. Hesse, in her anguish, made a

rescue effort and had to be restrained. She became so

distraught that she required immediate medical attention. She

and her husband remained at the scene for hours and eventually

witnessed the removal of a body, presumably that of their son.

Jason Hesse was burned beyond recognition, his body identified

only by dental records.

As the Court of Appeals recognized, there was ample

evidence that the experience traumatized both Mr. and Mrs.

Hesse to the point of causing them physical harm:

Ashland next argues that plaintiffs produced

no evidence that Kenneth and Cynthia Hesse suffered

1

MCL 418.131.

2

actual physical harm as a result of the accident,

other than the expected shock and distress stemming

from the death of their son. We disagree. Evidence

showed that Cynthia Hesse became so hysterical when

she arrived at the scene of the fire that she

required immediate medical treatment and sedation.

Further, in her deposition, Cynthia Hesse testified

that she experienced additional medical problems as

a result of her trauma. Mrs. Hesse testified that

her preexisting bladder condition was exacerbated

by her nervous condition after Jason's death.

Moreover, she suffered at least one nightmare

related to Jason's death, during which she reacted

so violently that she pulled muscles in her neck

and shoulder, which required medical attention.

Clearly, plaintiffs established a triable issue

with regard to whether Cynthia Hesse incurred

actual physical injury due to the shock she

experienced because of her son's death.

Further, plaintiffs succeeded in establishing

a triable issue with regard to whether Kenneth

Hesse suffered an actual physical injury. According

to the evidence, Kenneth Hesse experienced shock

and trauma related to Jason's death. Mr. Hesse

reported experiencing "depression, anxiety[,]

sleeping problems" and an inability to concentrate.

He also stated that Jason's death had caused him to

abuse alcohol. In August 1996, a doctor prescribed

Mr. Hesse Prozac because he was having "[a] lot of

trouble with energy," which was related to Mr.

Hesse's state of grief following Jason's death.

This evidence establishes a triable issue with

regard to whether Mr. Hesse suffered actual

physical injury as a result of the accident. [Slip

op, pp 9-10 (citations omitted).]

The Court of Appeals concluded that plaintiffs' claim for

their own injuries caused by witnessing the fire stated a

separate tort of negligent infliction of emotional distress.

It was not derived from the injuries to their son. The panel

cited Michigan law recognizing such a nonderivative claim.

Slip op at 9, citing Auto Club Ins Ass'n v Hardiman, 228 Mich

3

App 470, 474-477; 579 NW2d 115 (1998), and Barnes v Double

Seal Glass Co, 129 Mich App 66, 75-76; 341 NW2d 812 (1983).

II. The Cause of Action

A claim for negligent infliction of emotional distress is

generally recognized when a parent witnesses the violent death

of a child. See generally Prosser & Keeton, Torts (5th ed),

§ 54, pp 359-367; see also Consolidated Rail Corp v Gotshall,

512 US 532, 545-549; 114 S Ct 2396; 129 L Ed 2d 427 (1994).2

The common-law cause of action for negligent infliction of

emotional distress has been recognized and applied in

Michigan, although this Court has never ruled on the issue.

Hardiman, supra at 475; Wargelin v Sisters of Mercy Health

Corp, 149 Mich App 75, 81; 385 NW2d 732 (1986).

As stated by the Court of Appeals, the elements of

negligent infliction of emotional distress are: (1) serious

injury threatened or inflicted on a person, not the plaintiff,

of a nature to cause severe mental disturbance to the

plaintiff, (2) shock by the plaintiff from witnessing the

2

The United States Supreme Court in Consolidated Rail

noted that "[n]early all of the States" have recognized some

form of negligent infliction of emotional distress. Id. at

544-545. It went on to identify Michigan as one of nearly

half the states that "now allow bystanders outside of the zone

of danger to obtain recovery in certain circumstances for

emotional distress brought on by witnessing the injury or

death of a third party (who typically must be a close relative

of the bystander) that is caused by the defendant's

negligence." Id. at 549, n 10, citing Nugent v Bauermeister,

195 Mich App 158; 489 NW2d 148 (1992).

4

event that results in the plaintiff's actual physical harm,

(3) close relationship between the plaintiff and the injured

person (parent, child, husband, or wife), and (4) presence of

the plaintiff at the location of the accident at the time the

accident occurred or, if not presence, at least shock "fairly

contemporaneous" with the accident. Wargelin, supra at 81.3

Michigan generally does not regard a claim of negligent

infliction of emotional distress made by a close family member

to be derivative of the family member's injury. The Court of

Appeals considered the difference between derivative and

nonderivative actions in Hardiman, supra. There, it

distinguished the claim of negligent infliction of emotional

distress from claims such as loss of consortium, society, and

companionship, which are derivative claims.4 Unlike them, "a

claim of negligent or intentional infliction of emotional

distress may be maintained as a separate, independent cause of

3

Michigan precedent does not adhere to the "zone of

danger" rule that precludes liability when the witness was not

in any danger himself. See 2 Restatement Torts, 2d, § 313, pp

113-115; See also 2 Stein, Personal Injury Damages (3d ed),

§ 10:31, p 10-69, n 23.

4

The majority makes much of this Court's lead opinion in

Moran v Nafi Corp, 370 Mich 536; 122 NW2d 800 (1963). There,

the Court addressed only the claim of loss of consortium,

describing it as "growing out of the accidental injury to the

employee," or derivative. Id. at 538. See Black's Law

Dictionary (6th ed), defining "derivative" as: "Coming from

another; taken from something preceding; secondary." Where,

unlike a claim for loss of consortium, plaintiffs' claim for

negligent infliction of emotional distress is not derivative

of the employee's injury, Moran does not support the

majority's construction of MCL 418.131.

5

action and is not dependent upon actual injury to, or recovery

by, another person." Hardiman, supra at 475, citing Barnes,

supra at 75-76; Campos v General Motors Corp, 71 Mich App 23,

25; 246 NW2d 352 (1976).

I believe that the claim plaintiffs made in this case is

not derivative of their son's accident, as the term

"derivative" is used in Michigan law. For that reason, it

survives the exclusive remedy provision of the WDCA.

Moreover, I believe that my position finds support in the

language and purpose of the WDCA.

III. The Exclusivity of the WDCA

Although no case is on point, Barnes is closely

analogous. In Barnes, the Michigan Court of Appeals

determined that a claim for the intentional infliction of

emotional distress is not covered by the exclusive remedy

provision of the WDCA. There, the plaintiffs' son was killed

in a work-related accident. Although intentional tort claims

are generally not precluded by the WDCA, the Court of Appeals

analysis of the emotional distress claim is instructive. The

Court concluded that "Plaintiffs' claim for intentional

infliction of emotional distress is made on their own behalf,

for their own injuries, for a tort directed at them rather

than at their son. The claim is not for wrongful death and is

not covered by . . . the exclusive remedy provision of the

WDCA . . . ." See Id. at 76. The instant claim for negligent

6

infliction of emotional distress belongs to plaintiffs in the

same way.

The language of the exclusive remedy provision is not

unambiguous, as the majority unequivocally asserts. MCL

418.131 restricts recovery to the disabled employee and "any

other person to whom a claim accrues by reason of the injury

to, or death of, the employee . . . ." MCL 418.131(2). The

purpose of the WDCA is to provide a system of "compensation to

employees for injuries suffered in the course of employment,

regardless of who is at fault." Clark v United Automotive

Technology, Inc, 459 Mich 681, 686-687; 594 NW2d 447 (1999)

(emphasis added). By way of contrast, plaintiffs allege

injuries to themselves. They were not employed by defendant

and therefore did not sustain their injuries in the course of

employment.

I believe that a fair reading of MCL 418.131 begins with

the understanding that recovery under the WDCA is available to

an injured employee and to individuals standing in his place.

Claims outside the WDCA brought, for example, by the personal

representative of a deceased employee's estate truly accrue by

reason of the employee's death and are precluded by MCL

418.131. On the other hand, plaintiffs' claim is based on the

effect on them of having witnessed the employee's death. It

is not meant to recover for the death itself. They do not

stand in their son's shoes while making this claim. Hence, it

7

falls outside the scope of the WDCA, and MCL 418.131 does not

pertain to it. See Barnes, supra at 71.

Notably, if plaintiffs are prevented from maintaining

this action, they will also be unable to avail themselves of

the remedies of the WDCA. They will have nowhere else to turn

to recover for their physical manifestations of witnessing

their son's horrific death.

As this Court stated in Clark, supra at 687: "In return

for [the employer incurring] almost automatic liability,

employees are limited in the amount of compensation they may

collect from their employer, and, except in limited

circumstances, may not bring a tort action against the

employer." Under the majority's construction of the exclusive

remedy provision, plaintiffs' recovery is precluded, but there

is no corresponding "almost automatic liability" for their

injuries to justify the preclusion. That result could not

have been intended by the Legislature.

IV. Conclusion

The majority has extended the reach of the exclusive

remedy provision of the WDCA to bar plaintiffs' claim of

negligent infliction of emotional distress. The per curiam

opinion effects this leap without citing any authority on

point and without considering that MCL 418.131 is subject to

differing interpretations. The majority relies simply on its

reading of MCL 418.131, obdurately asserting that it is plain

8

and unambiguous.

By contrast, the Court of Appeals interpretation of the

statute is based on the sound reasoning in Barnes, Hardiman,

and Wargelin. This Court should apply existing law and

consider the purpose underlying the WDCA. It should conclude

that the exclusive remedy provision must be construed as not

including the claims of third parties ineligible for

compensation under the WCDA, and it should affirm the judgment

of the Court of Appeals.

CAVANAGH, J.

I would either grant or deny leave to appeal, but would

not dispose of this case by an opinion per curiam.

9