Michael Crispin v. Barton Malow Builders LLC

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Crispin v Barton Malow Builders LLC, unpublished order of the Court of Appeals, entered May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.

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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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