# Petition for Writ of Certiorari — Brocail v. Detroit Tigers, Inc. (No. 09-72) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0767%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2009 ## Text 09-72 JUL 16 2009 SS Urricve UF tt CLERK Weiiam K. Sutar, Ciark Sn The Supreme Court of the United States DOUGLAS K. BROCAIL, Petitioner. DETROIT TIGERS, INC., Respondent. On Petition For Writ Of Certiorari To The Court Of Appeals For The Fourteenth District Of Texas LEVON G. HOVNATANIAN MARTIN, DISIERE, JEFFERSON & WispcM, L.L.P. 808 Travis, Suite 1800 Houston, Texas 77002 (713) 632-1700 — Telephone (713) 222-0101 — Fax Altorney for Petitioner QUESTION PRESENTED Whether the Labor Management Relations Act, which preempts only claims whose resolution de- pends on the interpretation of a collective bargaining agreement, preempts the state-law tort claims at issue here. PARTIES TO THE PROCEEDING AND CORPORATE DISCLOSURE STATEMENT Petitioner The petitioner is Douglas K. Brocail. Respondent The respondent is the Detroit Tigers, Inc. The Detroit Tigers, Inc. is owned by Mike Ilitch. It has no parent corporation, and no publicly-held company owns 10% or more of its stock. TABLE OF CONTENTS QUESTION PRESENTED PARTIES TO THE PROCEEDING AND CORPORATE DISCLOSURE STATEMENT... STATUTORY PROVISION INVOLVED............... LAL Ee © COR LES CA ivicciccescscessssssiccssrseesess REASONS FOR GRANTING THE PETITION..... 10 I. THE FOURTEENTH COURT'S ANALY- SIS OF BROCAIL’S CLAIM FOR FRAUD- ULENT INDUCEMENT CONFLICTS WITH THIS COURTS HOLDINGS ON FEDER- AL PREEMPTION THE FOURTEENTH COURT'S ANALYSIS OF BROCAILS CLAIM FOR THE FAILURE TO PROVIDE A SECOND OPINION ALSO CONFLICTS WITH THIS COURT’S HOLD- INGS ON FEDERAL PREEMPTION THE COURT SHOULD GRANT REVIEW TO CLARIFY AND VINDICATE THE STAN- DARD FOR DETERMINING WHETHER STATE TORT CLAIMS DEPEND ON THE MEANING OF A CBA CONCLUSION TABLE OF CONTENTS — Continued APPENDIX Court of Appeals’ Opinion Court of Appeals’ Judgment Trial Court’s Judgment Notice from Court of Appeals that Court grant- ed Douglas K. Brocail’s Motion for Extension of Time to File Motion for Rehearing Notice from Court of Appeals that Court denied PROCIOR: TOT TROT GOT oie cecssinevesesarscecssssescescrccees App. Notice from Supreme Court of Texas that Court denied Petition for Review......................:..00e App. ¢ Notice from Supreme Court of Texas that Court granted Motion fer Extension of Time to File Motion for Rehearing and Filed Motion for Rehearing on February 27, 2009................... App. ! Notice from Supreme Court of Texas that Court denied Motion for Rehearing of Denial of Pe- tition for Review Section 301(a) of Labor Management Relations Act (29 U.S.C. § 185(a)) Section 418.315(1) of Michigan Worker’s Disa- bility Compensation Act Detroit Tigers, Inc.’s Motion for Summary Judg- Rs ose Pasnvacvecccccunestises canis ssesanciods and aan App. Douglas K. Brocail’s Response to Detroit Tigers, Inc.’s Motion for Summary Judgment Douglas K. Brocail’s Brief in Court of Appeals ... TABLE OF CONTENTS — Continued Page Detroit Tigers, Inc.’s Brief in Court of Appeals .. App. 111 Douglas K. Brocail’s Petition for Review........ App. 129 Detroit Tigers, Inc.’s Response to Petition for Review ......... oat pisadnea alas taisisanessiaaohnmoneneds App. 138 Douglas K. Brocail’s Motion for Rehearing in ARPS COGRITE OF TOMBR.......600ccccscccecsesecosnssee App. 1438 TABLE OF AUTHORITIES CASES Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985) 14, 16,17 Alvarado v. Hyundai Motor Co., 908 S.W.2d 243 (Tex. App. — San Antonio 1995), aff’d, G3 & Dat A). Se saaavabeases 11 American Fed’n of State, County & Mun. Em- ployees v. Board of Educ., 577 N.W.2d 79 acco csan cuuaeibaeabasiniauians) «vikemintseone' 3, Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d 1102 (9th Cir. 2000) Brocail v. Detroit Tigers, Inc., 268 S.W.3d 90 (Tex. App. — Houston [14th Dist.] 2008, pet. denied) passim Brown v. NFL, 219 F.Supp.2d 372 (S.D.N-Y. 2002) California Fed. Savs. & Loan Ass’n v. Guerra, 479 U.S. 272 (1987) Carter v. Ford Motor Co., 121 F.3d 1146 (8th IPED 55. c digusatidsinsdadiandsssearsieneue aku needs 20, 2 Caterpillar, Inc. v. Williams, 482 U.S. 386 Dickie adn as dead ches aesca svar eeetnoasadveouie ae: an Coefield v. Jersey Cent. Power & Light Co., 53: F.Supp.2d 685 (D.N.J. 2007) Cramer v. Consolidated Freightways, Inc., 26 F.3d 683 (9th Cir. 2001) (en banc) TABLE OF AUTHORITIES — Continued Custom Data Solutions, Inc. v. Preferred Cap- ital, Inc., 733 N.W.2d 102 (Mich. Ct. App. SE icisvbsnnchiecscaspadsavcisiitatais cru muiadesmtariaa Dougherty v. Parsec, Inc., 824 F.2d 1477 (6th Ar. 1987)...... dbdiaseteaeetcnion Naelsehastuedeeks ueecamusas Franchise Tax Bd. v. Construction Laborers Va cation Trust, 463 U.S. 1 (19838) ........ccccccccsccssccess Galvez v. Kuhn, 933 F.2d 773 (9th Cir. 1991)....... Garibaldi v. Lucky Food Stores, Inc., 726 F.2d I er aea se Gordon v. Thor Power Tool Co., 205 N.E.2d 55 Eaees Ss A CREE ac aPisncopsvavesessuabenduanieedesbhiseueees Gregory v. Ashcroft, 501 U.S. 452 (1991).............. Hanks v. General Motors Corp., 906 F.2d 341 SN REN ET ccc nucacavenscudchivesvlas cnntiuasalecdatccerseasis Harbor Broad., Inc. v. Boundary Waters Broad casters, Inc., 636 N.W.2d 560 (Minn. Ct. App. SEN ant evsauiay aiguekcrnds lacs Auden uc maveds eat wauebesbee Hassberger v. General Builders’ Supply Co., Se ls Os wee CEN IEE Dive cte bcecesvcevnssunecscacesesscis Hawatian Aturlines, Inc. v. Norris, 512 U.S. 246 S|. EEA Sr erento ac iets, Or Pe arma era Rer mma ae TREO AR Hayden v. Reickerd, 957 F.2d 1506 (9th Cir Hi-Way Motor Co. v. International Harvester Co., 247 N.W.2d 813 (Mich. 1976) ...... ees 26 V1l1 TABLE OF AUTHORITIES ~— Continued Page Hydropress Envtl. Servs. v. Township of Upper Mount Bethel, 836 A.2d 912 (Pa. 2003).................. 11 Hyundai Motor Co. v. Alvarado, 974 S.W.2d 1] De IN ad vlan hed ech bata ndcsbansvaceredennnteneshduuneiaidsnanh 26 International Ass’n of Bridge, Structural, & Or- namental Iron Workers v. Walcher & Fox, Bee Fee BF ED ave ccecn vests kconcsduccupenssaccodenes 19 Jones v. Rath Packing Co., 430 U.S. 519 (1977)........ 11 Keehr v. Consolidated Freightways, Inc., 825 Pee EE, BIT) cicnsevcncarcecvccccastecnacesecesss ss ..20 Kidd v. Southwest Airlines Co., 891 F.2d 540 NI ET cds osc ode then kcibue pendek anaes ddemebeasalousenssnus 15 Kirby v. Allegheny Beverage Corp., 811 F.2d 253 RI a og ce ea seddcp nian seens 21 Lingle v. Norge Div. of Magic Chef, Inc., 486 RS IEE ra css cus pikupundakensusndscsaveusaspedssesinins passim Livadas v. Bradshaw, 512 U.S. 107 (1994)...........0.... 15 Loewen Group Int'l, Inc. v. Haberichter, 65 F.3d ee MNS ilo ca, sosccesnapsseaciauvadcsieaséadsivess 16 Lundborg v. Keystone Shipping Co., 981 P.2d 854 (Wash. 1999)...................... i pereteat ge alccivscansacll Major League Baseball Players Ass’n v. Garvey, nL casvascaibenvenuaasévacexenss 5 Massachusetts Ass’n of Health Maint. Orgs. v. Ruthardt, 194 F.3d 176 (1st Cir. 1999) | 10 Milne Employees Ass’n v. Sun Carriers, Inc., 960 F.2d 1401 (9th Cir. 1991)........... emepeets | TABLE OF AUTHORITIES — Continued Morton v. Essex Town Sch. Dist., 443 A.2d 447 (Vt. 1981) National Treasury Employees Union v. Chertoff, 385 F.Supp.2d 1 (D.D.C. 2005), modification denied, 394 F.Supp.2d 137 (D.D.C. 2005), aff’d in part, rev’d in part on other grounds, 452 F.3d 839 (D.C. Cir. 2006) Northwestern Ohio Adm’rs, Inc. v. Walcher & Fox, Inc., 270 F.3d 1018 (6th Cir. 2001) Operating Eng’rs Pension Trust v. Wilson, 915 F.2d 535 (9th Cir. 1990) Owens v. Press Pub. Co., 120 A.2d Pharmaceutical Research & Mfrs. of Am. : Concannon, 249 F.3d 66 (1st Cir. 2001)... Pharmaceutical Researer: & Mfrs. of Am. v Walsh, 538 U.S. G44 (ZOOS)......cccccssccccscsceeess Rice v. Santa Fe Elevator Corp., 331 U.S. 218 Riegel v. Medtronic, Inc., 128 S.Ct. 999 (2008).... Samuel D. Begola Servs. v. Wild Bros., 534 N.W.2d 217 (Mich. Ct. App. 1995).. Schoolcraft Mem’l Hosp. v. Michigan Dep't of Cmty. Health, 570 F.Supp.2d 949 (W.D. Mich 2008) Silverman ex rel. NLRB v. Major League Base hall Player Relations Comm., Inc., 516 F.Supp. 588 (S.D.N.Y. 1981) TABLE OF AUTHORITIES — Continued St. Louis Cardinals, L.P. v. United States, F.Supp.2d 1043 (E.D. Mo. 2001) Stringer v. NFL, 474 F.Supp.2d 894 (S.D. Ohio 2007) seb ebesendensebbencaanuiaicuess ne 20, 24, 20 Synagro-WWT, Inc. v. Rush Tp., Pa., 299 F.Supp.2d 410 (M.D. Pa. 2003)...... 1] Teamsters v. Lucas Flour Co.., (1962) Trans Penn Wax Corp. v. McCandless, 50 F.3d 217 (3d Cir. 1995)....... Trevino v. Ramos, 197 F.3d 777 (5th Cir. 1999). United States v. Comprehensive Drug Testing, Inc., 513 F.3d 1085 (9th Cir. 2008), rehearing en banc granted, 545 F.3d 1106 (9th Cir 2003)... United Steelworkers of Am. v. Rawson, 495 U.S. 362 (1990) United Telegraph Workers v. Western Union Corp., 771 F.2d 699 (3d Cir. 1985). Voilas v. General Motors Corp., 170 F383 (3d Cir. 1999) Wells v. Firestone ‘Tire & Rubl N.W.2d 670 (Mich. 1984) Wells v. General Motors Corp., (5th Cir. 1989) TABLE OF AUTHORITIES — Continued STATUTES 28 U.S.C. § 29 U.S.C. § MiIcH. COMP RULES S. Ct. Rule 10(c) S. Ct. Rule 13.3 OTHER AUTHORITIES John D. Calamari & Joseph M. Perillo, Th: Law of Contracts § 9.21 (4th ed. 1998).. Diana P. Cortes, Same Injury; Different Cover age: How Privatized Insurance Policies Affect Injured Elite And Non-Elite Professional Ath letes, 13 Vill. Sports & Ent. L.J. 133 (2006) Jeffrey L. Kessler & David G. Feher, What Jus tice Breyer Could Not Know At His Mother's Knee: The Adverse Effects Of Brown v. Pro Football On Labor Relations In Professional Sports, 14-SPG Antitrust 41 (2000) Scott R. Rosner, The History And Business Of Contraction In Major League Baseball, 8 Stan. J.L. Bus. & Fin. 265 (2003 TABLE OF AUTHORITIES — Continued Kenneth Starr, et al., The Law of Preemption A Report of the Appellate Judges Conference, American Bar Association 40 (1991) Jason S. Weiss, The Changing Face Of Base ball: In An Age Of Globalization, Is Baseball Still As American As Apple Pie And Chev rolet?, 8 U. Miami Int’l & Comp. L. Rev. 123 (1999-2000) OPINION BELOW The opinion of the Court of Appeals for the Fourteenth District of Texas is reported at Brocail v. Detroit Tigers, Inc., 268 S.W.3d 90 (Tex. App Houston [14th Dist.] 2008, pet. denied) (App. 1-43). a BASIS FOR JURISDICTION IN THIS COURT On April 3, 2008, the Court of Appeals for the Fourteenth District of Texas issued its opinion and judgment affirming the trial court’s grant of summary judgment to the Detroit Tigers, Inc. App. 1-44. On April 21, 2008, Douglas K. Brocail timely filed a motion for extension of time to file a motion for rehearing in the Court of Appeals for the Fourteenth District of Texas. App. 46-47. On May 8, 2008, the Court of Appeals for the Fourteenth District of Texas issued its order granting the motion for extension of time and setting May 19, 2008 as the deadline for the motion for rehearing. App. 46-47. Brocail timely filed a motion for rehearing on May 19, 2008. App. 46-48. On Sep- tember 25, 2008, the Court of Appeals for the Fourteenth District of Texas issued its order denying the motion for rehearing. App. 48. Brocail timely filed a petition for review in the Supreme Court of Texas on November 4, 2008. App. 129-137. The order of the Supreme Court of Texas denying the petition for review was issued on January 30, 2009. App. 51. On February 27, 2009, Brocail timely filed a motion for extension of time to file a motion for rehearing in the Supreme Court of Texas. App. 50. Also on February 27, 2009, Brocail submitted his motion for rehearing to the Supreme Court of Texas. App. 50. On March 3, 2009, the Supreme Court of Texas granted the motion for extension of time and filed the motion for rehearing as of February 27, 2009. App. 50. The Supreme Court of Texas issued its order denying the motion for rehearing on April 17, 2009. App. 51. This petition for writ of certiorari was filed within 90 days of the date the Supreme Court of Texas denied Brocail’s timely-filed motion for re- hearing. As such, this petition for writ of certiorari is timely filed under Rule 13.3 of the Rules of the Supreme Court of the United States. This Court has jurisdiction pursuant to 28 U.S.C. - 19R%. © 125%7(a). 2 STATUTORY PROVISION INVOLVED Section 301(a) of the Labor Management Rela- tions Act: Suits for violation of contracts between an employer and a labor organization represent- ing employees in an industry affecting com- merce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. 29 U.S.C. § 185(a) (App. 52). ¢ — STATEMENT OF THE CASE For decades, management and unions have negotiated collective bargaining agreements as a way to achieve their respective labor goals. American Fed’n of State, County & Mun. Employees v. Board of Hduc., 577 N.W.2d 79, 84 (Mich. 1998). CBAs govern various, and usually many, aspects of union members’ employment. See id.; Owens v. Press Pub. Co., 120 A.2d 442, 445 (N.J. 1956). Their “very purpose” is “to supersede individual contracts with terms which reflect the strength and bargaining power and serve the welfare of the group.” Morton v. Essex Town Sch. Dist., 443 A.2d 447, 449 (Vt. 1981). 4 “Unlike contracts of adhesion, parties to a collec- tive bargaining agreement usually are able to nego- tiate on an even playing field.” American Fed’n, 577 N.W.2d at 84. That allows employers and unions to fairly work out the terms of their contracts, and to frequently agree on key provisions relating to the business. Id. This case involves Major League Baseball’s CBA, which “establishles] the terms and conditions of em- ployment of Major League Baseball players.” Szlver- man ex rel. NLRB v. Major League Baseball Player Relations Comm., Inc., 516 F.Supp. 588, 591 (S.D.N.Y. 1981). Baseball’s CBA was negotiated by a group representing the players and a group representing the teams’ owners. Jeffrey L. Kessler & David G. Feher, What Justice Breyer Could Not Know At His Mother’s Knee: The Adverse Effects Of Brown v. Pro Football On Labor Relations In Professional Sports, 14-SPG Antitrust 41, 44-45 (2000). “The CBA is enforceable by and against all players and owners within the sport, regardless of whether or not an individual player agrees with the terms of the CBA.” Diana P. Cortes, Same Injury; Different Coverage: Flow Privatized Insurance Policies Affect Injured Elite And Non-Elite Professional Athletes, 13 Vill. Sports & Ent. L.J. 133, 152 n.123 (2006). Baseball’s CBA addresses numerous issues in- volving the game and its players, including the players’ compensation and benefits’; free agency’; steroid testing’; the grievance process’; revenue dis- parities between the teams, the level of revenue shar- ing, and competitive imbalance’; how games would be conducted if a city outside the United States and Canada received rights to a team, and how to handle the expenses, funds, and revenues that international play would generate’; and of course the general rules and regulations of the sport’. But “([a] collective bar- gaining agreement, which is a generalized code to govern a myriad of unanticipated cases, involves too ' St. Louis Cardinals, L.P. v. United States, 185 F.Supp.2d 1043, 1045 (E.D. Mo. 2001); Cortes, Same Injury; Different Coverage: How Privatized Insurance Policies Affect Injured Elite And Non-Elite Professional Athletes, 13 Vill. Sports & Ent. L.J. at 152. * Major League Baseball Players Ass’n v. Garvey, 532 U.§ 504, 505 (2001); St. Louis Cardinals, 185 F.Supp.2d at 1045. United States v. Comprehensive Drug Testing, Inc., 513 F.3d 1085, 1139-40 (9th Cir. 2008) (Thomas, J., concurring in part and dissenting in part), rehearing en banc granted, 545 F.3d 1106 (9th Cir. 2008). * St. Louis Cardinals, 185 F.Supp.2d at 1045. ° Scott R. Rosner, The History And Business Of Contraction In Major League Baseball, 8 Stan. J.L. Bus. & Fin. 265, 286 (2003). * Jason S. Weiss, The Changing Face Of Baseball: In An Age Of Globalization, Is Baseball Still As American As Apple Pie And Chevrolet?, 8 U. Miami Int’] & Comp. L. Rev. 123, 128 (1999- 2000). Cortes, Same Injury; Different Coverage: How Privatized Insurance Policies Affect Injured Elite And Non-Elite Profession- al Athletes, 13 Vill. Sports & Ent. L.J. at 152, 152 n.123. 6 many people, too many problems, and too many un- foreseeable contingencies to provide for every situ- ation which might arise.” Gordon v. Thor Power Tool Co., 205 N.E.2d 55, 60 (Ill. Ct. App. 1965). Thus, a CBA “does not seek to define every duty and right of the parties to it.” Jd. Indeed, there is an extensive landscape of federal and state law dealing with the rights of workers holding that collective bargaining agreements do not supersede and cannot abrogate rights the law accords to workers. A CBA is not impervious to these numerous expressions of public policy, both statutory and court made, that accord’ greater solicitude to the legal rights of workers. Lundborg v. Keystone Shipping Co., 981 P.2d 854, 861 (‘Vash. 1999). Correspondingly, Major League Base- ball’s CBA was never intended to address, and does not address, every detail relating to a player’s em- ployment. In December 1996, the Detroit Tigers acquired relief pitcher Doug Brocail from the Houston Astros in a multi-player trade. The Tigers signed Brocail to a guaranteed contract under which they were obligated to pay his salary even if he got hurt and became unable to pitch. Brocail pitched for the Tigers in 1997, 1998, and 1999. But during the 2000 season, he began to experience arm problems. His contract obligated the Tigers to pay him $900,000 in salary in 2000 and $2,000,000 in salary in 2001. After his arm problems began, the Tigers re- quired Brocail to see their team _ physicians. Symptoms showed that Brocail was suffering from a partially torn medial collateral ligament. However, one of the Tigers’ team doctors claimed that Brocail merely had bo:1e fragments in his elbow and that the fragments could be removed arthroscopically. In August 2000, the Tigers placed Brocail on the disabled list. They encouraged him to undergo treatment, assuring him that the treatment was appropriate and that he would be pitching for them again soon. Brocail specifically asked whether he had a torn ligament, but was told his injury involved only loose bone fragments. Convinced, Brocail underwent surgery on Sep- tember 22, 2000. He then began physical therapy. As the Tigers knew, Major League Baseball’s an- nual winter meetings, during which a large number of player trades are traditionally made, were ap- proaching in December. If it appeared that the surgery on Brocail was successful, the Tigers could get much more for him in a trade at the winter meetings and relieve themselves of the large guaran- teed contract they had given him. In November 2000, Brocail was still undergoing physical therapy. He could not even throw a baseball yet. Nevertheless, on November 7, 2000, the Tigers removed Brocail from the disabled list — after the 's) season was over, less than two months after his surgery, and in time for the impending winter meet- ings. During those meetings, the Tigers traded Brocail back to the Houston Astros, unloading his $2,000,000 salary. Before the trade, the Tigers’ workers compen- sation insurance carrier paid Brocail’s medical ex- penses. However, the policy did not provide Brocail any benefits whatsoever for lost earnings and lost earning capacity. In reality, Doug Brocail had, not bone chips in his elbow, but a complete tear of the medial collateral ligament and a near-complete tear of the flexor tendon in his pitching arm. He was forced to undergo major surgery to repair the damage. The Astros paid Brocail his 2001 salary, but he was unable to pitch for the next two seasons. Because his contract expired at the end of the 2001 season, he was out of baseball and received no salary at all in 2002 and 20038. Only about 68 percent of athletes who have the type of surgery Brocail was required to have to fix the real damage to his arm are able to return to their pre- injury performance level. Yet Brocail returned to baseball during the 2004 season, pitching for the Texas Rangers. And he pitched effectively. However, because of the injuries inflicted on him by the Tigers, his salary had plummeted 9 In a Texas court, Brocail sued the Tigers for, among other things, fraudulent inducement and negligence. Specifically, he alleged that the Tigers fraudulently induced him to sign a contract with the Astros, breached a duty to provide reasonable medical services, and failed to provide a proper second opinion. The Tigers moved for summary judgment. App. 59. They argued that Brocail’s claims were preempted by section 301 of the Labor Management Relations Act (““LMRA”) by virtue of Major League Baseball’s CBA. App. 60-67. In response, Brocail contended that section 301 did not preempt his claims. App. 68-78. In a non-substantive order, the trial court granted the Tigers’ motion. App. 45. Brocail appealed the summary judgment, arguing in his brief that section 301 did not preempt his claims. App. 79-110. The Tigers responded in their own brief that it did. App. 111-128. The Fourteenth Court of Appeals, in Houston, Texas, held that “Brocail’s claims of fraudulent inducement and failure to provide a proper second opinion are preempted by the LMRA” and affirmed the summary judgment. Brocail v. Detroit Tigers, Inc., 268 S.W.3d 90, 111 (Tex. App. Houston [14th Dist.] 2008, pet denied); App. 42-43. Later, the court of appeals denied Brocail’s motion for rehearing. App. 48 srocail filed a petition for review in the Supreme Court of Texas, arguing that the court of appeals had 1O erred in holding his claims preempted. App. 129-137. The Tigers filed a response, contending that the court of appeals’ conclusion that Brocail’s claims were pre- empted was correct. App. 138-142. Ultimately, the Su- preme Court of Texas declined review. App. 49. —® REASONS FOR GRANTING THE PETITION — “Preemption is strong medic- ine. Thus, although the power to preempt is absolute, its exer- cise is not lightly to be pre- sumed.” Massachusetts Ass’n of Health Maint. Orgs. v. Ruthardt, 194 F.3d 176, 178-79 (1st Cir. 1999) (citing Gregory v. Ash croft, 501 U.S. 452, 460 (1991). The above quote is one of a host of directives from federal courts not to strain or be anxious to find federal preemption. “Federal preemption ... is not casually to be dispensed.” Pharmaceutical Research & Mfrs. of Am. v. Concannon, 249 F.3d 66, 75 (1st Cir. 2001), aff’d, Pharmaceutical Research & Mfrs. of Am v. Walsh, 538 U.S. 644 (2003). “Federal preemption of state law is a serious exercise of federal power that is properly limited to situations of clear congressional intent|.|” Schoolcraft Mem'l Hosp. v. Michigan Dep’ of Cmty. Health, 570 F.Supp.2d 949, 964 (W.D. Mich 2008). ‘This Court has gone so far as to impose a 1] “presumption against preemption,” which “‘provides assurance that the federal-state balance will not be disturbed unintentionally by Congress or unneces sarily by the courts.’” Riegel v. Medtronic, Inc., 128 S.Ct. 999, 1013 (2008) (quoting Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977)). All these decrees are because “the consequences of preemption are ‘severe.’” Synagro-WWT) Inc. v. Rush Tp., Pa., 299 F.Supp.2d 410, 416 (M.D. Pa 2003) (quoting Hydropress Envtl. Servs. v. Township of Upper Mount Bethel, 836 A.2d 912, 918 (Pa. 2003)). Preemption is “a serious inroad into the right of a state” to make and apply its own laws. Alvarado uv. Hyundai Motor Co., 908 S.W.2d 243, 245 (Tex. App. San Antonio 1995), aff’d, 974 S.W.2d 1 (Tex. 1998). “Therefore, the preemption cases are interlaid with admonitions against an overeagerness to find pre emption.” /d. The court of appeals held that Brocail’s claims that the Tigers breached a duty to provide reasonable medical services are not preempted by the LMRA. Brocail, 268 S.W.3d at 102; App. 21. The court was undoubtedly correct on that point, because the duties implicated by Brocail’s claims regarding the failure to provide reasonable medical services did not originate from Major League Basehball’s CBA, but from the Michigan Worker's Disability Compensation Act (“the 12 MWDCA”). See MicH. Comp. LAws § 418.315(1); App. 54." But the court of appeals also held that the LMRA preempted Brocail’s claims that the Tigers fraudu- lently induced him to sign a contract with the Astros and failed to provide a proper second opinion because those claims require the interpretation of Baseball’s CBA. Brocail, 268 S.W.3d at 102-03; App. 23-24. Below, Brocail will show the Court that the court of appeals was wrong, and explain why the Court should grant review Determining federal preemption is essentially a search for “the intent of Congress.” California Fed. Saus. & Loan Ass’n v. Guerra, 479 U.S. 272, 280 (1987). Congress passed the LMRA in 1947. National Treasury Employees Union v. Chertoff, 385 F.Supp.2d l, 29 (D.D.C. 2005), modification denied, 394 F.Supp.2d 137 (D.D.C. 2005), aff’d in part, rev’d in part on other grounds, 452 F.3d 839 (D.C. Cir. 2006) In so doing, its goals were to “promotle] the arbi- tration of labor contract disputes [and] secur[e] the uniform interpretation of labor contracts.” Balcorta | Twentieth Century-Fox Film Corp., 208 F.3d 1102, 1108-09 (9th Cir. 2000 lt is undisputed that Michigan law applies in this cass » trial court granted the Tigers’ motion to apply Michigan law not opp sed Che court Tt appeals 1;soO ipplie i Bro f 268 S.W.34d at 10 1; App In that regard, section 301(a) of the LMRA pro- vides Suits for violation of contracts between an employer and a labor organization repre- senting employees in an industry affecting commerce ... or between any such labor organizations, may be brought in any district court in the United States having juris diction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. 29 U.S.C. §185(a); App. 52. In some cases, but obviously not in all, this section has preemptive effect. Wells v. General Motors Corp., 881 F.2d 166, 172 (5th Cir. 1989); compare Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 261 (1994) (observing that section 301 does not preempt “state rules that proscribe conduct, or establish rights and obligations, independent of a labor contract”) with Caterpillar, Inc. v. Williams, 482 U.S. 386, 394 (1987) (noting that section 301 preempts state claims “founded directly on mghts created by collective-bargaining agree- ments, and also claims ‘substantially dependent on analysis of a collective-bargaining agreement” (citation omitted )) ‘The intent of LMRA’s pre-emptive reach is t fashion a uniform body of law regarding collective bargaining agreements and other labor contract Trevino v. Ramos, 197 F.3d 777, 779 (5th Cir. 1999 This Court has explained exactly why it important ion 301 have preemptive scops 14 The possibility that individual contract terms might have different meanings under state and federal law would inevitably exert a disruptive influence upon both the nego- tiation and administration of collective agreements. Because neither party could be certain of the rights which it had obtained or conceded, the process of negotiating an agreement would be made immeasurably more difficult by the necessity of trying to formulate contract provisions in such a way as to contain the same meaning under two or more systems of law which might someday be invoked in enforcing the contract. The importance of the area which would be affected by separate systems of substantive law makes the need for a single body of federal law particularly compelling. The or dering and adjusting of competing interests through a process of free and voluntary collective bargaining is the keystone of the federal scheme to provide industrial peace Teamsters v. Lucas Flour Co.. 369 U.S. 95. 103-04 (196%). But this Court also has observed that “not every dispute concerning employment, or tangentially in volving a provision of a collective-bargaining agree ment, is pre-empted by § 301 or other provisions of the federal labor law.” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211 (1985) [Elven under Y 30] we have never in that any action merely relating to a 15 within the coverage of §301 arises ex- clusively under that section. For instance, a state battery suit growing out of a violent strike would not arise under § 301 simply because the strike may have been a violation of an employer-union contract. Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 25 n.28 (1983). This “useful” restriction means that “although a plaintiff is a member of the collective bargaining unit, he may assert legal rights independent of the CBA under state law, so long as those rights do not derive from provisions of a CBA.” Kidd v. Southwest Airlines Co., 891 F.2d 540, 544 (5th Cir. 1990) (citing Williams, 482 U.S. at 394-95). If resolving a state-law cause of action does not require construing a CBA, the cause of action is “independent” of the CBA and not preempted. Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 407 (1988). Thus, preemption is limited only to claims that “depend[] upon the meaning of a collective-bargaining agreement|[.|]” /d. at 405-06. “The plaintiff’s claim is the touchstone for this analysis; the need to interpret the CBA must inhere in the nature of the plaintiff’s claim.” Cramer uv. Consolidated Freightways, Inc., 255 F.3d 683, 691 (9th Cir. 2001) (en banc). When the parties do not dispute the meaning of contract terms, the fact that a CBA will be consulted in the course of state-law litigation does not require preemption. Livadas uv. Bradshaw, 512 U.S. 107, 124 (1994). In other words, the court’s mere examination of a CBA to determine 16 the preemption issue is not tantamount to inter- preting the CBA. Loewen Group Inti, Inc. ov. Haberichter, 65 F.3d 1417, 1423 (7th Cir. 1995); Milne Employees Ass’n v. Sun Carriers, Inc., 960 F.2d 1401, 1409 (9th Cir. 1991), cert. denied, 508 U.S. 959 (1993). “If it were, the section 301 pre-emption doctrine would swallow the rule that employees covered by collective bargaining agreements are entitled ‘to assert legal rights independent of that agreement[.]’” Miine, 960 F.2d at 1410 (quoting Caterpillar, 482 U.S. at 396) (emphasis in Caterpillar). And of course the simple fact that a defense 1s based on a CBA is by itself insufficient to require preemption. Williams, 482 U.S. at 398-99; Cramer, 255 F.3d at 690. That Brocail’s claims sound in tort is especial); significant. “If there is a free-standing state tort duty, the Supreme Court has repeatedly advised that ‘it would be inconsistent with congressional intent .. . to pre-empt state rules that proscribe conduct, or establish rights and obligations, independent of a labor contract.’” Brown v. NFL, 219 F.Supp.2d 372, 379-80 (S.D.N.Y. 2002) (quoting Allis-Chalmers Corp., 471 U.S. at 211-12). So in tort actions, a court must consider “whether evaluation of the tort claim is inextricably intertwined with consideration of the terms of the labor contract.” Allis-Chalmers Corp., 471 U.S. at 213. When a tort action brought in state court is not “inextricably intertwined” with a CBA, the claim is considered to be distinct and is not preempted by section 301. Lingle, 486 U.S. at 407. Stated differ- ently, if “the state-law claim can be resolved without 17 interpreting the agreement itself, the claim is ‘Independent’ of the agreement for § 301 pre-emption purposes.” Jd. at 410. Thus, the preemption of section 301 does not apply to every state-law claim that relates in some manner to a CBA, or to all parties covered by a CBA. Allis-Chalmers Corp., 471 U.S. at 211-12. And if a tort claim alleges a violation of a duty “owed to every person in society,” as opposed to a duty owed only to empleyees covered by the CBA, it is independent of the CBA. Brown, 219 F.Supp.2d at 380 (citing United Steelworkers of Am. v. Rawson, 495 U.S. 362 (1990)). THE FOURTEENTH COURT’S ANALYSIS OF BROCAIL’S CLAIM FOR FRAUDU- LENT INDUCEMENT CONFLICTS WITH THIS COURT’S HOLDINGS ON FEDERAL PREEMPTION. The court of appeals held that, “Because the CBA governs assignment of his contract, Brocail’s claim that the [Tigers] fraudulently induced him to enter a contract with the Astros is preempted. In particular, it is mecessary to interpret the CBA to determine whether Brocail’s consent to the assignment was necessary, and whether reliance on any repre- sentation by the [Tigers] concerning assignment of his contract was reasonable in light of the CBA.” Brocail, 268 S.W.3d at 103 (citation omitted); App. 23- 24. Whether Brocail’s consent was necessary is com- pletely irrelevant. For his consent to be unnecessary 18 would not legitimize the Tigers’ actions. And if his consent was necessary, it still could not have been freely given, because in Michigan as everywhere, “fraud vitiates everything it touches.’” Custom Data Solutions, Inc. v. Preferred Capital, Inc., 733 N.W.2d 102, 105 (Mich. Ct. App. 2006) (quoting John D. Caiamari & Joseph M. Perillo, Tie Luw of Contracts § 9.21 at 340-41 (4th ed. 1998)). Furthermore, “Fraud in the inducement occurs where a party materialiy misrepresents future con- duct under circumstances in which the assertions may reasonably be expected to be relied upon and are relied upon.” Samuel D. Begola Servs. v. Wild Bros., 534 N.W.2d 217, 219 (Mich. Ct. App. 1995). No provision of the CBA sets a standard for reasonable reliance or somehow precluded Brocail from relying on the Tigers’ representations. Resolving Brocail’s fraudulent inducement claim does not require interpretation of Major League Baseball’s CBA. It is state law, not Baseball’s CBA, which imposed on the Tigers a duty not to make fraudulent misrepresentations. See Hi-Way Motor Co. v. International Harvester Co., 247 N.W.2d 813, 815- 16 (Mich. 1976). That duty, of course, is owed to the general public, not just Brocail. See Hassberger v. General Builders’ Supply Co., 182 N.W. 27, 28 (Mich. 1921). Several courts have held that section 301 does not preempt a state-law claim for fraud. See, e.g., Northwestern Ohio Adm’rs, Inc. v. Walcher & Fox, 19 Inc., 270 F.8d 1018, 1031 (6th Cir. 2001) (“Because ruling on the fraud claim does not involve the inter- pretation of a collective bargaining agreement, ruling on that claim presents no challenge to the uniformity of federal law governing labor contracts. In short, section 301 does not preempt Walcher & Fox’s claim of fraud in the inducement.”), cert. denied, Inter- national Ass’n of Bridge, Structural, & Ornamental Tron Workers v. Walcher & Fox, Inc., 535 U.S. 1017 (2002); Votlas v. General Motors Corp., 170 F.3d 367, 378 (3d Cir. 1999) (“In sum, the fraud claim in this case is not directly based upon the collective bar- gaining agreements in force between the parties; nor will the resolution of the elements of common-law fraud require the interpretation of those bargaining agreements. ... Consequently there is no ground for section 301 preemption in this case.”); Trans Penn Wax Corp. v. McCandless, 50 F.3d 217, 232 (3d Cir. 1995) (where employees covered by CBA brought claims against their employer for fraud, court held that section 301 did not preempt fraud claims because “[a]n examination of the employer’s behavior, motivation, and statements does not substantially depend upon the terms of the collective bargaining agreement”); Operating Eng’rs Pension Trust v. Wilson, 915 F.2d 535, 539 (9th Cir. 1990) (“We hold that the Wilsons’ state tort claim for fraud in the inducement is not preempted by section 301 because it does not require reference to the collective bar- gaining agreement.”), cert. denied, 505 U.S. 1212 (1992). And it is not just state-law claims involving fraud that fall outside section 301 preemption. Courts 20 frequently have held that state-law claims of other intentional torts brought by employees covered by a CBA are not preempted, either. See, e.g., Hayden v. Reickerd, 957 F.2d 1506, 1511, 1513 (9th Cir. 1991) (conspiracy and battery); Galvez v. Kuhn, 933 F.2d 773, 778-80, 781 (9th Cir. 1991) (assault and battery); Hanks v. General Motors Corp., 906 F.2d 341, 345 (8th Cir. 1990) (intentional infliction of emotional distress); Keehr v. Consolidated Freightways, Inc., 825 F.2d 133, 135-37 (7th Cir. 1987) (invasion of privacy and intentional infliction of emotional dis- tress). Dougherty v. Parsec, Inc., 824 F.2d 1477 (6th Cir. 1987), is a particularly apt example. In that case, the Sixth Circuit held that the plaintiff’s tortious inter- ference claim was subject to section 301 preemption. Id. at 1478-79. This Court vacated the Sixth Circuit’s judgment and remanded the case to the Sixth Circuit for reconsideration in the light of Lingle. Dougherty v. Parsec, Inc., 486 U.S. 1049 (1988). The Sixth Circuit promptly reversed its earlier decision. Dougherty uv. Parsec, Inc., 872 F.2d 766, 771 (6th Cir. 1989). Under Lingle and similar opinions, the court of appeals should have reached a comparable result here. Cases in which a court has found that an intentional-tort claim is preempted are _ readily distinguishable. For example, in Carter v. Ford Motor Co., 121 F.3d 1146, 1148 (8th Cir. 1997), the em- ployee’s claims for intentional infliction of emotional distress and fraudulently misrepresenting the facts related to his termination were preempted by section 21 301 because resolution of the claims would require the court to determine whether the employee's dis- charge was warranted under the terms of a CBA. /d. at 1149. And in Kirby v. Allegheny Beverage Corp., 811 F.2¢ 253 (4th Cir. 1987), the employee’s invasion- of-privacy claim was preempted by section 301 because resolution of the claim would involve con- sideration of the employer’s power under a CBA to conduct searches of employees and their cars when drug use is suspected. /d. at 256. Here, by contrast, it is not necessary to interpret the CBA to resolve Brocail’s fraud claim. Il. THE FOURTEENTH COURT’S ANALYSIS OF BROCAIL’S CLAIM FOR THE FAIL- URE TO PROVIDE A SECOND OPINION ALSO CONFLICTS WITH THIS COURT’S HOLDINGS ON FEDERAL PREEMPTION. Like their duty not to fraudulently induce, the Tigers’ duty to provide a second opinion exists in state law; specifically, in section 418.315(1) of the MWDC. Section 418.315(1) provides in relevant part: The employer shall furnish, or cause to be furnished, to an employee who receives a personal injury arising out of and in the course of employment, reasonable medical, surgical, and hospital’ services and medi- cines, or other attendance or treatment rec- ognized by the laws of this state as legal, when they are needed. MicH. Comp. LAws § 418.315(1); App. 54. There is no doubt that this law creates duties that are owed to the general public. See Wells v. Firestone Tire & Rubber Co., 364 N.W.2d 670, 674 (Mich. 1984) (“The statutory workers’ compensation scheme was enacted for the protection of both employees and employers who work and do business in this state.”). In holding this claim was preempted. the court of appeals pointed to the fact that the CBA gives the player the right to seek a second opinion from a list of medical specialists. Brocail, 268 S.W.3d at 103; App. 22-23. But the court failed to recognize that a duty to provide a second opinion also falls within the “reasonable medical ... services” required by section 418.315(1) of the MWDC. Because such a duty may be discerned from section 418.315(1), it is not necessary to interpret the CBA to resolve that claim and the claim is not preempted. “[E]ven if dispute resolution pursuant to a collective-bargaining agree- ment, on the one hand, and state law, on the other, would require addressing precisely the same set of facts, as long as the state-law claim can be resolved without interpreting the agreement itself, the claim is ‘independent’ of the agreement for § 301 preemption purposes.” Lingle, 486 U.S. at 409-10; see Coefield uv. Jersey Cent. Power & Light Co., 532 F.Supp.2d 685, 692 (D.N.J. 2007) (quoting Lingle and observing that this Court found it “irrelevant” that the state-law analysis may involve the same factual considerations as an inquiry under the CBA). 23 The recent high-profile case of Stringer v. NFL, 474 F.Supp.2d 894 (S.D. Ohio 2007), is analogous. Korey Stringer, an offensive lineman for the Min- nesota Vikings, participated in the Vikings’ 2001 summer training camp. /d. at 898. During a practice, he suffered heat exhaustion. Jd. At the next morning’s practice, he developed heatstroke and subsequently died from its complications. Jd. Kelci Stringer, Korey Stringer’s widow and the personal representative of his estate, sued several entities. 474 F.Supp.2d at 898. In general, she con- tended that Korey Stringer was forced to participate in practices conducted in extreme heat and humidity while wearing unsafe, heat-retaining, league-mandated equipment and without proper acclimatization, super- vision, or medical care. /d. Count four of her complaint alleged claims of negligence against the NFL and NFL Properties. 474 F.Supp.2d at 898, 911. Specifically, count four asserted that the NFL had a duty to ensure that the equipment and materials it required NFL players to wear were of the highest possible quality and suffi- cient to protect players from the risk of injury, including an increased risk of heat-related illness. Jd. at 899, 911-12. Count four also claimed that NFL Properties had a duty to ensure that the equipment and materials it licensed and approved were of the highest possible quality and sufficient to protect players from the risk of injury, including an increased risk of heat-related illness. Jd. at 899, 912. Count four further alleged that the NFL and NFL Properties 24 breached those duties by requiring, approving, and/or licensing the use of Riddell helmets and shoulder pads, knowing or having reason to know that those products increased the risk of heat-related illness. /d. at 899, 912. The defendants argued that all of Kelci Stringer’s claims should be dismissed because they were pre- empted by section 301. 474 F.Supp.2d at 899. Re- garding count four, the court disagreed. Jd. at 912-13. In part, it reasoned: Nor is resolution of Count 4 substantially dependent on an interpretation of any of the terms of the CBA, which is largely silent on the topic of equipment safety. As discussed earlier, although the CBA creates a “Joint Committee on Player Safety and Welfare . for the purpose of discussing the player safety and welfare aspects of playing equip- ment,” (CBA, Art. XIII, §1(a)), the NFL Defendants are not members of that com- mittee and are not required to adopt the committee’s recommendations. In _ short, there is no need to interpret that provision, or any other, to determine whether the NFL Defendants owed Korey Stringer a duty to ensure that he had safe equipment, whether they breached that duty, or whether the alleged breach proximately caused his death. The Court therefore concludes that Count 4 of Plaintiff’s complaint is not preempted. Id. at 912-13. The duty to ensure that the equipment used by NFL players adequately protects against risk 2D of injury or illness, “if it exists, clearly has its source in the common law,” not the CBA. /d. at 912. Similarly, the duty to provide a second opinion exists in Michigan law — separately, independently, from Baseball’s CBA. In this circumstance, there is no preemption. See Lingle, 486 U.S. at 409-10. The court of appeals erred in holding that Brocail’s claims regarding fraud and the failure to provide a second opinion are preempted. As this Court observed in Lingle, “there is nothing novel about recognizing that substantive rights in the labor relations context can exist without interpreting collective-bargaining agreements.” 486 U.S. at 411. Il. THE COURT SHOULD GRANT REVIEW TO CLARIFY AND VINDICATE THE STAN- DARD FOR DETERMINING WHETHER STATE TORT CLAIMS DEPEND ON THE MEANING OF A CBA. For at least two reasons, the Court should grant review and decide this case. First, the court of appeals drastically relaxed the standard for deter- mining whether state tort claims actually depend on the meaning of a CBA. The court pushed the standard from “intertwined” to, essentially, whether the case has anything at all to do with a CBA. “The overriding purpose of federal labor law is to allow the parties, to the extent possible, to settle their own disputes in accordance with their contractual 26 agreements.” United Telegraph Workers v. Western Union Corp., 771 F.2d 699, 704 (3d Cir. 1985). But in this case, the plaintiff’s claims have nothing whatso- ever to do with the parties’ contractual agreements The laudable “overriding purpose” cannot possibly be served by a holding that Brocail’s state tort-law claims are preempted by section 301. “(T|the essence of the exercise [of determining federal labor law preemption] is a balance of state and federal interests.” Garibaldi v. Lucky Food Stores, Inc., 726 F.2d 1367 (9th Cir. 1984). Here, Texas’s in- terest in providing a tort-law remedy for one of its citizens should have prevailed. Only because the court of appeals applied too loose a standard, it did not. Second, “(t]he presumption against preemption is a necessary requirement for a properly functioning and well-balanced federal system.” Harbor Broad., Inc. v. Boundary Waters Broadcasters, Inc., 636 N.W.2d 960, 564 n.1 (Minn. Ct. App. 2001). It is “crucial in our federal system[.]” Hyundai Motor Co. v. Alva rado, 974 S.W.2d 1, 5 (Tex. 1998). “For if in close or uncertain cases a court proceeds to preempt state laws where that result was not clearly the product of Congress’s considered judgment, the court has eroded the dual system of government that ensures our liber- ties, representation, diversity, and effective gover- nance.” Jd. (quoting Kenneth Starr, et al., The Law of Preemption: A Report of the Appellate Judges Con- ference, American Bar Association 40 (1991)). [f Congress intended that federal law preempt State-law remedies, then certainly the presumption against federal preemption of state law is overcome. See Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). But there is not the slightest indication that Congress intended preemption in cases like this. By concluding otherwise, the court of appeals converted the vital presumption against preemption from gold into dross. The court of appeals’ errors are substantial. The court decided an important federal question the standard for determining whether state tort claims actually depend on the meaning of a CBA — in a way that conflicts with the relevant decisions of this Court. As such, Brocail respectfully asserts that re view is warranted. See S. Ct. Rule 10(c) o— - CONCLUSION For the above and foregoing reasons, Brocail respectfully requests that the Court grant this peti tion for writ of certiorari. Respectfully submitted, LEVON G. HOVNATANIAN MARTIN, DISIERE, JEFFERSON & WispoM, L.L.P. 808 Travis, Suite 1800 Houston, Texas 77002 (713) 632-1700 — Telephone (713) 222-0101 — Fax Attorney for Petitioner Douglas K. Brocail App. |] 268 S.W.3d 90 Court of Appeals of ‘Texas, Houston (14th Dist.) Douglas K. BROCAIL, Appellant v. DETROIT TIGERS, INC., Appellee No. 14-06-00557-CV. April 3, 2008. Rehearing Overruled Sept. 25, 2008 Bruce E. Ramage, Levon G. Hovnatanian, Thomas W. Pirtle, Michael Jude Lowenberg, Dale Jefferson, Houston, TX, for appellants. Jeffrey Stewart Davis, Peter Scaff, Houston, TX, for appellees. Panel consists of Justices YATES, FOWLER, GUZMAN. OPINION EVA M. GUZMAN, Justice In this case, a major league baseball player for the Detroit Tigers (the “Club”) sued the Club for injuries to his pitching arm. The Club was granted summary judgment on the grounds, inter alia, that the player’s claims were barred by the federal Labor Management Relations Act, the Michigan Workers Disability Compensation Act, and Michigan’s statute of frauds. We affirm App. 2 I. FACTUAL AND PROCEDURAL BACK- GROUND Appellant Douglas Brocail is a professional relief pitcher and a union member of the Major League Baseball Players Association. As such, his employ- ment agreements with major league baseball teams (“Clubs”) are subject to a collective bargaining agree- ment (“CBA”) negotiated between the players and the member Clubs. This case concerns alleged acts or omissions that occurred or began during the 2000 baseball season, when Brocail was employed by appellee, the Detroit Tigers, Inc. A. The Employment Documents Pursuant to the terms of the CBA, Players and Clubs are required to execute a specific form of a standard contract (the Uniform Player’s Contract or “UPC”) when entering into an employment agree- ment. Under the UPC governing Brocail’s employ- ment by the Club, he received a $600,000 signing bonus, a salary of $900,000 for the 2000 season, and a guaranteed salary of $2 million for the 2001 season. In section 6(a) of the UPC, the parties agreed that Brocail’s contract could be assigned to any other baseball clubs. In section 6(b), Brocail agreed that, “shoula the Club contemplate an assignment of this contract to another Club or Clubs, the Club’s physi- clan may furnish to the physicians and officials of such other Club or Clubs all relevant medical infor mation relating to” Brocail. Brocail further agreed to App. 3 “accept, abide by and comply with all provisions of the Major League Agreement, the Major League Rules, and the Rules or Regulations of the League of which the Club is a member....” These provisions included League Regulation 2, which provides as follows: The Player, when requested by the Club, must submit to a complete physical exam1- nation at the expense of the Club, and if necessary to treatment by a regular physi- cian or dentist in good standing.... Disa- bility directly resulting from injury sustained in the course and within the scope of his employment under this contract shall not impair the right of the Player to receive his full salary for the period of such disability or for the season in which the injury was sus- tained (whichever period is shorter), together with the reasonable medical and hospital expenses incurred by reason of the injury and during the term of this contract or for a period of up to two years from the date of initial treatment for such injury, whichever period js longer, but only upon the express prerequisite conditions that (a) written no- tice of such injury, including the time, place, cause and nature of the injury, is served upon and received by the Club within twenty days of the sustaining of said injury and (b) the Club shall have the mght to designate the doctors and hospitals furnishing such App. 4 medical and hospital services. Failure to give such notice shall not impair the rights of the Player, as herein set forth, if the Club has actual knowledge of such injury. All work- men’s compensation payments received by the Player as compensation for loss of income for a specific period during which the Club is paying him in full, shall be paid over by the Player to the Club. Any other disability may be ground for suspending or terminating this contract. The parties also included “Supplemental Agree- ments” in the UPC, such as the following: The Club and the Player covenant that this contract, the Basic Agreement and the Agree- ment Re Major League Baseball Players Benefit Plan effective April 1, 1996 and applicable supplements thereto fully set forth all understandings and agreements be- tween them, and agree that no other under- standings or agreements, whether heretofore or hereafter made, shall be valid, recog- nizable, or of any effect whatsoever, unless expressly set forth in a new or supplemental contract executed by the Player and the Club (acting by its President or such other officer as shall have been thereunto duly authorized by the President or Board of Directors as evidenced by a certificate filed of record with the League President and Commissioner) and complying with the Major League Rules. App. 5 B. Agreement to Provide Medical Ser- vices The Club represents that under an “Agreement to Provide Medical Services” to the Club, the Henry Ford Center for Athletic Medicine (the “Center”) agreed to select and provide well-qualified medical doctors to act as “team physicians” in exchange for a fixed annual fee.” The Center and the Club further agreed that such physicians would remain employees of the Center, and that the “[a]greement is intended solely for the benefit of the Parties hereto and shall not be deemed to create any rights in any other person or entity.” The Center designated Dr. Terrence Lock, a board-certified orthopaedic surgeon, to act as one of the team physicians. C. Injury and Treatment While Employed by the Tigers On June 14, 2000 in Detroit, Michigan, Brocail began to complain of pain and inflammation in his right elbow. A follow-up injury report contained the notation that an x-ray performed the same day revealed spurring and new bone formation at the medial epicondyle. Another note entered two days later records that, per Dr. Lock, Brocail had “spurring with inflammation medial epicondyle,” but the liga- ments and tendons were intact. An injury report also No executed copy of the contract was included in the summary judgment evidence App. 6 records that Dr. Lock examined Brocail again on June 28, 2000, and Brocail was still tender but “getting better,” and physicians would “consider CT if [the pain] persist[ed.]” Brocail was examined and x-rayed again on July 10, 2000. After pitching on August 18, 2000, Brocail experi- enced increased medial soreness and mild swelling. He was placed on the disabled list; had additional x- rays on August 21; and was examined by Dr. Failla, another physician employed by the Center, on August 22, 2000. The following day, Brocail sought a secona opinion from Dr. James Andrews in Birmingham, Alabama. The Club paid fer Brocail’s consultation with Dr. Andrews. Brocail returned to Michigan, and at the begin- ning of September 2000, he was removed from the disabled list. After he practiced pitching on Sep- tember 6 or 7, 2000, he was again restricted from throwing, and additional tests were performed on September 19, 2000. On September 22, 2000, Dr. Kyle Anderson, another of the Center’s physicians, performed arthro- scopic surgery on Brocail’s elbow. Dr. Anderson noted “very significant spur formation” and removed two loose bone fragments. The sutures were removed on September 29, 2000, and Brocail was placed on the 60-day disabled list. Brocail decided to return to his home in Missouri City, Texas while recuperating from App. 7 surgery, and he received rehabilitation services in the neighboring city of Sugar Land.” He was removed from the disabled list in the first half of November 2000, and on or about December 11, 2000, the Club traded Brocail to the Houston Astros. Brocail’s medical bills through December 20, 2000 were paid by the Club’s worker’s compensation insurance carrier. D. Injury and Treatment While Employed by the Astros On April 4, 2001, Brocail heard a loud pop in his right elbow while pitching in Texas. He played in four more “rehabilitation outings,” then consulted Dr. Thomas Mehlhoff in Houston on April 17, 2001. He was diagnosed with a full tear of the medial collateral ligament and a partial tear of the flexor tendon. He subsequently had surgery in Houston to reconstruct the medial collateral ligament. Due to the long recovery time from the surgery, Brocail did not con tinue to pitch for the Astros. The Astros paid Brocail’s 2001 salary, but when his contract expired at the end of that season, it was not renewed. Brocail was not paid a salary for the 2002 and 2003 seasons. Accord- ing to Brocail, he returned to pitching for the Texas Rangers in 2004. “ Brocail had been under contract to the Houston Astros before joining the Detroit Tigers and maintained a permanent residence in Texas App. 8 E. Brocail’s Allegations On September 20, 2002, Brocail sued his Michi- gan and Texas health care providers. In addition, he sued the Club for negligence, fraud, fraudulent con- cealment, fraudulent inducement, negligent misrep- resentation, gross negligence, and breach of contract. According to Brocail, the Club “encouraged and/or directed him to seek treatment from team personnel that did not possess the expertise, skill, training, experience, ability, competence and/or knowledge to properly diagnose and treat an elbow injury sus- tained by a major league baseball pitcher. .. .” Brocail further alleged that the Club encouraged or directed him to undergo treatment that would not cure his injury and failed to (a) establish policies and pro- cedures for the treatment of its players, (b) follow team physicians’ orders, (c) fully disclose the true extent of his condition and his fitness to play base- ball, (d) use reasonable care to protect his health and investment, (e) fully advise him of the adverse effects of continued medical and rehabilitative treatment, (f) advise him of options concerning his condition, (g) perform appropriate examinations, and (h) advise the Houston Astros of the true extent of his ability to play baseball. In addition, he contended the Club was negligent in hiring team personnel. Brocail also pleaded the discovery rule, agency, ostensible agency, agency by estoppel, equitable estoppel, promissory estoppel, vicarious liability, and “intentional torts,” and sought punitive damages and attorneys’ fees. Finally, he pleaded that: App. 9 [Brocail’s] claims are not within the scope of any purportedly applicable worker’s compen- sation laws and are not barred by any exclusive remedy provision therein.... As a professional athlete whose average weekly wage was not less than 200% of the state average weekly wage, Brocail had no right to the recovery of weekly compensation benefits and any exclusive remedy provision does [not] apply.* On January 31, 2003, the trial court dismissed Brocail’s claims against the Michigan health care providers for lack of personal jurisdiction. Brocail v. Anderson, 132 S.W.3d 552 (Tex.App. — Houston [14th Dist.] 2004, pet. denied). Brocail subsequently non- suited his claims against the remaining health care providers. F. Summary Judgment On June 29, 2005, the Club moved for final sum mary judgment on the following six grounds: (i) Section 301 of the Labor-Management Relations Act (“LMRA”) preempts and bars Brocail’s claims because (a) he did not assert Brocail alleged that “(|djuring the 2000 season, Brocail developed an injury to his pitching elbow while playing for defendant.” He further alleged that his “injury occurred in Texas when he was a resident of the State of Texas, and while he was no longer employed by the Defendant.” 29 U.S.C. §§ 141-87 App. 10 his claim within the applicable federal six- month statute of limitations, and (b) he failed to exhaust his remedies under the collective bargaining agreement; (ii) the exclusive-remedy provision of the Michigan Worker’s Disability Compensation Act (the “WDCA”) bars Brocail’s claims; (iii) Michigan’s statute of frauds’ bars Brocail’s claims because the alleged oral promises regarding medical treatment or warranties were not in writing; (iv) Brocail’s promissory estoppel claim fails as a matter of law because (a) any such promise is not sufficiently clear and definite to allow recovery, (b) Brocail could not have reasonably relied upon the alleged promise as a matter of law, and (c) any promissory estoppel claim is not viable in light of the contract between Brocail and the Club; (v) Brocail’s vicarious liability theories fail as a matter of law because (a) the medical providers for whom Brocail contends the Club is vicariously liable are independent contractors, and (b) the purported wrong- doers are within the scope of immunity provided under applicable worker’s compen- sation law; and J The Club asserted, in the alternative, that Brocai!’s claims are barred by Texas workers’ compensation law App. 11 (vi) Brocail’s “medical fraud” claims fail as a matter of law because (a) Brocail cannot meet the high burden required to show an “intentional act” under Michigan worker’s compensation law, (b) Brocail’s allegations do not relate to a past or existing fact, (c) his fraud claims are “merely recast medical negligence claims,” (d) any alleged misrep- resentation could not have caused Brocail injury, and (e) any alleged reliance was unreasonable. The trial court granted the motion without specifying its grounds. Brocail appeals the judgment regarding his tort claims, but does not appeal the judgment on his claim for breach of contract. Il, ISSUES PRESENTED Brocail presents nine issues on appeal, and the parties agree that Michigan substantive law applies.’ In his first issue, Brocail contends the Club failed to assert in its motion for summary judgment that specific parts of the CBA or UPC required interpre- tation in order to resolve Brocail’s claims. He argues in his second and third issues that no interpretation of any part of the CBA or UPC is required, and no part of either agreement created or precluded the We continue to apply Texas procedural law even when applying the substantive law of another state. Moonlight Inuvus Lid. v. John, 192 S.W.3d 890, 894 (Tex.App Eastland 2006, pet denied) App. 12 duties that are the bases of his tort claims. In his fourth issue, Brocail contends that the exclusive- remedy provision of the WDCA does not bar damage claims for which it affords no compensation. Brocail argues in his fifth issue that the Club failed to negate the misrepresentation, reliance, and causation ele- ments of his fraud claims. In his sixth issue, Brocail contends that the intentional-conduct exception to the exclusive-remedy provision of the WDCA applies. In his seventh issue, he challenges the Club’s assertion that the Michigan statute of frauds bars his claims. He argues in his eighth issue that the Club did not meet its burden to negate Brocail’s various liability allegations. Finally, Brocail contends in his ninth issue that the Club’s misrepresentations are suffi- ciently definite to support Brocail’s claim for prom- issory estoppel. fil. STANDARD OF REVIEW We analyze a traditional motion for summary judgment under a well-established standard of re view. The movant bears the burden to show that there is no genuine issue of material fact, and that it is entitled to judgment as a matter of law. TEX.R. CIV. P. 166a(c). We review the motion and the evi dence de novo, taking as true all evidence favorable to the nonmovant, indulging every reasonable inference, and resolving any doubts in the nonmovant’s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). When, as here, the trial court does not specify the grounds on which the judgment is based, App. 13 we will affirm the judgment if it is correct on any legal theory expressly placed at issue and supported by the evidence. TEX.R. CIV. P. 166a(c) (stating that issues must be “expressly set out in the motion or in an answer or any other response”); Dow Chem. Co. uv. Francis, 46 S.W.3d 237, 242 (Tex.2001) (per curiam) (holding that when the grounds for the ruling are not specified, we affirm “if any of the theories advanced are meritorious”); Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex.1993) (holding that a summary judgment cannot be affirmed on grounds not expressly set out in the motion or response). IV. ANALYSIS The Club’s motion for summary judgment was largely based on the application of (a) preemption under the Labor-Management Relations Act (“LMRA”), (b) the exclusive-remedy provision of the Michigan WDCA, and (c) Michigan’s statute of frauds. For the sake of clarity, we group the issues presented on appeal under these headings A. Labor-Management Relations Act As its first basis for summary judgment, the Club asserted that Brocail’s claims were preempted by sec tion 301 of the LMRA, and thus, Brocail is bound by A the requirements of that Act, including requirements App. 14 to exhaust remedies under the applicable collective bargaining agreement and to assert claims within six months. See 29 U.S.C. § 185 (codifying section 301 of the LMRA). Brocail contends that his claims are not preempted, and thus, these requirements do not apply. Preemption under the LMRA is a question of law, which we review de novo. Meredith v. La. Fed’n of Teachers, 209 F.3d 398, 404 (5th Cir.2000). Given the importance of maintaining uniform federal law, “the Supreme Court has made clear that § 301 of the LMRA preempts any state-law claim aris- ing from a breach of a collective bargaining agree ment.” Smolarek v. Chrysler Corp., 879 F.2d 1326, 1329 (6th Cir.1989) (en banc). Preemption under sec- tion 301 also applies to many tort claims ostensibly asserted under state law. /d. at 1329-30 (citing Adlis- Chalmers Corp. v. Lueck, 471 U.S. 202, 217, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985)). To survive preemption tort claims must be “independent” of the CBA. Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 409- 10, 108 S.Ct. 1877, 1883, 100 L.Ed.2d 410 (1989); Allis-Chalmers Corp., 471 U.S. at 213, 105 S.Ct. 1904, 85 L.Ed.2d 206 (analyzing state-law claim to deter- mine if it was “independent of any right established by contract, or, instead, whether evaluation of the tort claim was] inextricably intertwined with 29 U.S.C. § 1-87. See DelCostello v. Intl. Bhd. of Team 103 S.Ct. 2281, 2293-94, 76 L.Ed.2d syoing such disputes the same limitations period onal Labor Relations Act): 29 U.S.C. § 160(b App. 15 consideration of the terms of the labor contract”); Mattis v. Massman, 2004 Fed.App. 0003P, 355 F.3d 902, 905 (6th Cir.2004) (same). Thus, the LMRA not only preempts state-law claims that are based directly on rights created by a collective bargaining agreement, but also preempts claims that are “sub- stantially dependent upon analysis of the terms made between the parties in a labor contract... .” Stringer v. Natl Football League, 474 F.Supp.2d 894, 900 (S.D.Ohio 2007) (quoting Allis-Chalmers Corp., 471 U.S. at 220, 105 S.Ct. at 1916). But “neither a tan- gential relationship to the CBA, nor [a] defendant’s assertion of the contract as an affirmative defense [can] turn an otherwise independent claim into a claim dependent on the labor contract.” DeCoe v. Gen Motors Corp., 1994 FED App. 0261P, 32 F.3d 212, 216 (6th Cir.1994). Courts follow a two-step approach to determine whether a state-law tort claim is sufficiently “inde pendent” to survive LMRA preemption. First, the court “must examine whether proof of the state law claim requires interpretation of collective bargaining agreement terms.” Second, the court “must ascertain whether the right claimed by the plaintiff is created by the collective bargaining agreement or by state »* o d at 216: accord, Jones 1 R adway Expr Ine 9 ;. L1O89 (5th (‘ir 199] beginning preemptLio! inalysi: examining the element of thre illeged state-law tort) App. 16 law.” The claim is preempted unless it is created by state law and does not require interpretation of the CBA.” If.a plaintiff can prove all of the elements of the claim without the need for contract interpre- tation, then his claim is independent of the labor . 13 ° : ‘ agreement and is not preempted.” But if resolution of the state-law claim is “substantially dependent” on an analysis of the terms of the CBA or “inextricably intertwined” with it, the claim is preempted by the LMRA.” I. Asserted as a Basis for Summary Judgment In his first issue, Brocail contends that because the Club’s motion contains no assertion that any specific part of the CBA or UPC must be interpreted to resolve any of Brocail’s claims, the Club did not expressly move for summary judgment on _ the grounds that Brocail’s claims are preempted by the LMRA. Thus, he reasons, summary judgment cannot be affirmed on this basis. The Club responds that srocail failed to specially except to the motion and therefore waived his complaint that the motion lacked specificity. See McConnell v. Southside Indep Sch. Dist., 858 S.W.2d 3387, 342 (Tex.1993) (plurality App. 17 op.) (“An exception is required should a non-movant wish to complain on appeal that the grounds relied on by the movant were unclear or ambiguous.”); Franco v. Slavonic Mut. Fire Ins. Ass’n, 154 S.W.3d 777, 784 (Tex.App. — Houston [14th Dist.] 2004, no pet.) (special exception is required to preserve complaint that a motion for summary judgment is vague or lacks specificity). The excepting party also must obtain a ruling on the special exception to preserve the issue for appeal. TEX.R.APP. P. 33.1; France, 154 S.W.3d at 784. Rather than specially excepting to the alleged omission and thereby giving the Club an opportunity to amend, Brocail challenged the alleged omission substantively. In his response, he asserted that the Club “failled] to identify a stngle provision of the CBA or UPC that must be interpreted to resolve Brocail’s tort claims” or “to resolve the factual issues” identi- fied in the motion for summary judgment. According to Brocail’s arguments in the trial court, the Club’s failure to cite a specific provision of the CBA that requires interpretation demonstrates that no inter- pretation is necessary to resolve his claims. These arguments seem to rely on the standard governing no-evidence summary judgments, rather than traditional sum mary judgments. See Cuyler v. Minns, 60 S.W.3d 209, 212-13 (Tex.App. — Houston [14th Dist.] 2001, pet. denied) (because mo vant’s failure to identify challenged elements of claims renders a no-evidence motion for summary judgment legally insufficient under Rule 166a(i), the nonmovant is not required to object App. 18 We agree with the Club. A special exception was required to preserve Brocail’s argument for appeal. TEX.R.APP. P. 33.1; Franco, 154 S.W.3d at 784. And even if Brocail’s argument could be construed as a special exception to the motion’s lack of specificity, Brocail identifies no ruling in the record on such an exception. See TEX.R.APP. P. 33.1(a)(2) (to preserve a complaint for appellate review, the record must show that the trial court implicitly or expressly ruled on the objection, or the complaining party objected to the trial court’s refusal to rule). We therefore conclude that Brocail’s appellate argument regarding the Club’s failure to cite specific provisions of the CBA is waived, and we overrule Brocail’s first issue.” 2. Need to Interpret Specific Contract Provisions Brocail next contends that the resolution of his tort claims does not require the interpretation of any specific provision of the CBA, the UPC, or the League Regulations. Similarly, he argues in his third issue that these documents did not create or preciude the duties that are the bases of his tort claims. Both arguments are only partially correct. The Club adequately presented the preemption argument In its summary judgment motion Interestingly, each party relies for support on statements by the other’s expert or counsel. Contrary to its arguments on appeal, the Club’s general counsel previously denied that the duty to pravide reasonable medical care “is a right that flows Continued on following page) App. 19 a. Claims Based on Duty to Pro- vide Reasonable Medical Care In support of his argument that his claims arise under Michigan state law and do not require inter- pretation of the CBA, Brocail relies on the following from” the CBA and instead agreed that the Club had a duty under Michigan’s workers’ compensation statutes to provide reasonable medical care. Brocail also reversed his litigation strategy, and the Club relies ir part on a June 8, 2005 report by Brocail’s expert, Matthew J. Mitten, in which Mitten opines: Read together, the Collective Bargaining Agreement, the UPC, and the Regulations estab]ish that a Major League Baseball club, such as the Detroit Tigers, ef- fectively has a non-delegable duty to provide reason- able and appropriate medical care to its players, including an obligation to provide proper treatment and rehabilitation for their injuries. But see Matthew J. Mitten, Jeam Physicians as Co- Employees: A Prescription that Deprives Professional Athletes of an Adequate Remedy for Sports Medicine Malpractice, 50 St. Louis U. L.J. 211, 213 (Fall 2005) (“Unless statutorily excluded from coverage, a pro- fessional team’s players are ‘employees’ who are en- titled to workers’ compensation benefits for injuries occurring within the scope of their employment.”). Despite the efforts of both sides to characterize such statements as relevant evidence, the issue of whether claims are preempted by the LMRA is a question of law to be reviewed de novo. Bartholomew v. AGL Res.., Inc., 361 F.3d 1333, 1337 (11th Cir.2004): Meredith, 209 F.3d at 404; Reece v. Houston Lighting & Power Co, 79 F.3d 485, 487 (5th Cir.1996); Quesnel uv. Prudential Ins. Co., 66 F.3d 8. 11 n. 4 (1st Cir.1995) Thus, our analysis is unaffected by the opinions of these witnesses App. 20 provision of Michigan’s Worker’s Disability Compen- sation Act: The employer shall furnish, or cause to be furnished, to an employee who receives a personal injury arising out of and in the course of employment, reasonable medical, surgical, and hospital services and medi- cines, or other attendance or treatment rec- ognized by the laws of this state as legal, when they are needed. MICH. COMP. LAWS ANN. § 418.315(1). The Club, however, argues that Brocail’s claims rely on the Club’s alleged breach of a contractually-implied duty to provide medical care, and “(wlithout reference to and reliance on the CBA, the UPC and the Regu- lations, the Tigers would have no duty or obligation to 918 provide any medical services to Brocail. We need not look for such an implied duty in these agreements because the parties are bound by express state statutes, and the Club could not “opt out” of Michigan workers’ compensation law. See MICH. COMP. LAWS ANN. § 418.111 (“Every employer, In support of this argument, the Club cites Jnternational Brotherhood of Electrical Workers v. Hechler, 481 U.S. 851, 862, 107 S.Ct. 2161, 2168, 95 L.Ed.2d 791 (1987) (concluding that it was necessary to interpret a coilective bargaining agreement to determine the existence and scope of union’s implied duty to ensure a safe workplace). In Hechler, however, the plaintiff's claim expressly was based on alleged breaches of “contracts and agreements” and not on the breach of a state statute expressly imposing a duty on the employer App. 21 public and private, and every employee, unless herein otherwise specifically provided, shall be subject to the provisions of this act and shall be bound thereby.”) (emphasis added). The Club’s position is inconsistent with the unambiguous language of section 418.315(1), which requires it to provide reasonable medical care. Because the determination of the Club’s duty and alleged breach of duty to provide Brocail with rea- sonable medical services can be resolved without reference to the CBA, the UPC, or the Regulations, these claims are not preempted by the LMRA. See Lingle, 486 US. at 409-10, 108 S.Ct. at 1883 (“[A]s long as the state-law claim can be resolved without interpreting the agreement itself, the claim is ‘inde- pendent’ of the agreement for § 301 pre-emption purposes. ). Thus, Brocail’s claims that the Club breached a duty to provide reasonable medical care are not preempted by the LMRA. But as discussed infra, these claims — which include Brocail’s allega- tions that the Club (i) encouraged or directed Brocail to seek treatment from unskilled team personne]; (ii) failed to seek determination of proper treatment from a skilled physician; (iii) “failed to use reasonable care with plaintiff’; (iv) failed to use reasonable care to protect plaintiff’s health; and (v) failed to perform the appropriate examinations to determine his pre- participation or qualifying status, identify future risk of injury, determine his fitness to play baseball, pre- vent subsequent injury, and assess his rehabilitative status — are barred by the WDCA. App. 22 Some of Brocail’s claims, however, are not based on the duty to provide reasonable medical care. And as discussed below, we reach a different result concerning the preemption of claims arising from the alleged violation of duties found only in the CBA. b. Claims Based on Express Con- tractual Duties Brocail contends that the Club “failed to provide a proper second opinion before encouraging, endors- ing or directing Brocail to undergo treatment... .” But Brocail points to no authority in Michigan law that required the Club to “provide a proper second opinion,” nor have we found such a requirement.” To the contrary, the only basis on which to imply a duty to provide a second medical opinion is found in the CBA. Article XIII, section D of the CBA is entitled “Sec- ond Medical Opinion” and provides as follows: Within 20 days following the execution of this Agreement, the Clubs will provide an updated, accepted listing of medical spe- cialists, by specialty and by geographic regions, to whom Players may upon their Cf. MICH. COMP. LAWS ANN. § 418.315(1) (“After 10 days from the inception of medical care as provided in this section, the employee may treat with a physician of his or her own choice by giving to the employer the name of the physician and his or her intention to treat with the physician.”) App. 23 request go for diagnosis and a second medi- cal evaluation of an employment([-Jrelated illness or injury being treated by the Club physician. At least two physicians will be designated for each specialty in each region. Further, the Association and the Clubs shall promptly agree on appropriate procedures by which this listing of medical specialists will be updated annually. A Player may seek a “second evaluation” from a medical specialist on the accepted listing who is located outside the geographic region within which the Player’s Club is located, provided that the Player is not absent from the Club for an unreasonable time. Thus, to determine whether the Club was re- quired to provide a second opinion and to define the meaning of a “proper second opinion,” it is necessary to interpret the CBA. Consequently, this claim is pre- empted by the LMRA. We therefore overrule Brocail’s second and third issues as they pertain to any duty of the Club concerning a “second opinion.” We reach a similar result regarding Brocail’s claims arising from his trade to the Houston Astros. Because the CBA governs assignment of his contract, Brocail’s claim that the Club fraudulently induced , ?m to enter a contract with the Astros is preempted. See Burgos v. Sw. Bell Tel. Co., 20 F.3d 633, 636 (5th Cir.1994) (“In order to determine whether South- western Beil acted wrongfully in the way it trans- ferred [the employee] from one section to another, required him to take different tests, and ultimately App. 24 effectuated his termination, an analysis of South- western Bell’s obligations under the collective bar- gaining agreement is necessary.”). In particular, it is necessary to interpret the CBA to determine whether Brocail’s consent to the assignment was necessary, and whether reliance on any representation by the Club concerning assignment of his contract was reasonable in light of the CBA.” See Feitl v. Los Angeles Clippers, 48 F.3d 1227, 1995 WL 100596, at *3 (9th Cir. March 8, 1995) (unpublished mem. op.) (“Because Feitl knew at the time of the alleged fraud that any employment he might have with LAC was governed by a CBA, Feitl must prove that his reliance was justified in light of the CBA.”) (citing Milne Employees Ass’n v. Sun Carriers, Inc., 966 F.2d 1401, 1408-09 (9th Cir.1991)). Thus, we overrule Brocail’s second and third issues as they pertain to his claim of fraudulent inducement. B. Michigan Worker’s Disability Compen- sation Act Under Michigan law, “[e]very employer, public and private, and every employee, unless. . . otherwise specifically provided [in the WDCA], shall be subject to the provisions of this act and shall be bound thereby.” MICH. COMP. LAWS ANN. § 418.111. The The CBA contains provisions addressing circumstances in which assignment is prohibited or which require the Player’s consent App. 25 WDCA applies to all private, non-agricultural em- ployers who regularly employ three or more em- ployees at one time, excluding family members employed as domestic servants. See id. §§ 418.115(a); 418.118(1). In addition, any private employer who purchases and accepts a valid workers’ compensation insurance policy, except in the case of domestics and agricultural employees, assumes “the liability for compensation and benefits imposed by this act upon employers.” Jd. § 418.121. The parties do not dispute that the Club had a valid worker’s compensation insurance policy in effect at the time of Brocail’s injury, and that medical benefits were paid pursuant to that policy. Thus, the Club is an employer subject to the WDCA. See id. §§ 418.111, 418.121. In addition, Brocail is an employ- ee as that term is used in the Act: (1) As used in this act, “employee” means: (1) Every person in the service of another, under any contract of hire, express or im- plied. . (n) Every person performing service in the course of the trade, business, profession, or occupation of an employer at the time of the injury, if the person in relation to this service does not maintain a separate business, does not hold himself or herself out to and render App. 26 service to the public, and is not an employer subject to this act. Id. § 418.161. The WDCA further provides: 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 knowl- edge. 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 the law. Id. § 418.131(1). Here, Brocail seeks to recover for a personal injury sustained in the course and scope of his employment. Thus, with the exception of inten tional torts as described above, the WDCA affords his only remedy. I. Uncompensated Loss of Earnings lo avoid the exclusive-remedy provision, Brocail points out that section 418.360 of the WDCA bars his receipt of weekly earnings benefits otherwise aval able under the act App. 27 (1) Aperson who suffers an injury arising out of and in the course of employment as a pro- fessional athlete shall be entitled to weekly benefits only when the person’s average weekly wages in all employments at the time of appli- cation for benefits, and thereafter, as com- puted in accordance with section 371, are less than 200% of the state average weekly wage. (2) This section shall not be construed to pro- hibit an otherwise eligible person from receiving » ° ‘ ad 21) « {22 ‘ . (23 benefits under section 315,[°" 319,” or 361. Section 418.315 provides, inter alia, that The employer shall furnish, or cause to be furnished, to an employee who receives a personal injury arising out of and in the course of employment, reasonable medical, surgical, and hospital services and medi- cines, or other attendance or treatment recognized by the laws of this state as legal, when they are needed After 10 days from the inception of medical care as provided in this section, the employee may treat with a physician of his or her own choice by giving to the employer the name of the physician and his or her intention to treat with the physician Under this section An employee who has suffered an injury covered by this act shall be entitled to prompt medical rehabilita tion services. When as a result of the injury he or she is unable to pertorm work for which he or she ha previous training or experience, the employee shall be entitled to such vocational rehabilitation services, in cluding retraining and job placement is may be reasonably nece i to restore him or her to useful employment Chi ection ¢ App. 28 Id. § 418.360 (internal footnotes referencing prior laws omitted). Thus, Brocail reasons, the exclusive- remedy provision of the WDCA does not apply to his claim for earnings-related damages. Stated differ- ently, he argues that section 418.360(1) provides an exception to the exclusive-remedy provision of section 418.131(1). In support of this argument, Brocail relies on Eversman v, Concrete Cutting & Breaking, Inc., in which the Michigan Supreme Court explained: The primary purpose of the worker’s com pensation act is to provide benefits to the victims of work-related injuries by allocating the burden of these payments to the em- ployer, and, therefore, ultimately, to con- sumers. An employee who suffers an injury arising out of and in the course of his employment will be eligible for compensation regardless of whether the employer was at fault. In return, the employer is immunized from tort liability because the worker's com- pensation act, under [section] 418.131(1) provides that this compensation is the exclu- sive remedy for a personal injury, except for an injury resulting from an intentional tort 163 Mich. 86, 92-93, 614 N.W.2d 862, 864 (2000) citations omitted). Because an employer is immunized for tort liability by paying the worker “compensation” a work-related injury, Brocail contends that the also be true; thus, he argues, if the does not receive “compensation” for lost then the emplover is not immunized from App. 29 tort lability for those damages. He argues that “{[cjourts across the country have confirmed that exclusivel|-|remedy provisions apply only to damages that are compensable under a worker’s compensation statute.” a. Haddad v. Justice In support of this position, Brocail first relies on Haddad v. Justice, in which the Michigan Court of Appeals wrote Plaintiffs’ complaint contained a claim for property damage and the wife’s claim for loss of consortium. As to the wife’s claim for loss of consortium, it is barred by [section] 418.131.... We find that there is no pro vision in the Workmen’s Compensation Act applicable to plaintiffs’ claim for property damage, and, as to it, accelerated judgment was improper 64 Mich App 14.77, 235 N.W.2d 159, 160-61 (1975 3ut Haddad does not support Brocail’s argu ment. For example, the WDCA provides no compensa tion for loss of consortium; nevertheless, the Haddad court applied the exclusive-remedy provision to thi derivative claim Brocail responas that the loss of consortium claim if Haddad was not covered because claim under the WDCA are personal. But this proposition is not supported by the language of the Act. See MICH COMP. LAWS ANN. § 418.131(2) (“A App. 30 section ... , ‘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... .”) (emphasis added). Thus, the exclusive-remedy provision also applies to anyone to whom a claim accrues as a result of the employee's injury or death. Significantly, the identification of persons to whom the Act applies is based on the injury, not the compensation provided. Regarding the _ property- damage claim in Haddad, section 418.131 provides that the “right to recovery of benefits as provided in this act shall be the employee’s exclusive remedy against the employer for a personal injury or occu- pational disease.” Id. § 418.131(1) (emphasis added). Because the plaintiff’s claim for property damage was not derived from the worker’s claim of personal injury or disease, it was neither covered nor barred by the WDCA. But Haddad does not stand for the proposition that the exclusive-remedy provision is inapplicable to claims arising from an employee’s in- jury simply because the Act provides no compensation for the particular category of damages sought. b. Sole Exception to the Exclusive- Remedy Provision Contrary to Brocail’s arguments, intentional torts are the “only exception” to the exclusive-remedy App. 31 rule.“ Under Michigan law, the applicability of the workers’ compensation act is not determined by whether the claimant is fully compensated for a par- ticular category of damages, because “benefits pro- vided by existing compensation acts are not expected to be full payment for all losses suffered.”” Instead, it is “a fundamental tenet of workers’ compensation statutes that if an injury falls within the coverage of the compensation law, such compensation shali be the employee’s only remedy against the employer... .” Reed v. Yackell, 473 Mich. 520, 530, 703 N.W.2d 1, 6-7 (2005) (emphasis added) (quoting Farrell v. Dearborn Mfg. Co., 416 Mich. 267, 274-75, 330 N.W.2d 397, 399 (1982)); see also Downie, 122 Mich.App. at 737, 333 N.W.2d at 535 (“When an employee’s injury is within the scope of the Worker’s Disability Compensation Act, workers’ compensation benefits are the employee’s exclusive remedy against the employer.”); McKinley v. Holiday Inn, 115 Mich.App. 160, 163, 320 N.W.2d 329, 331 (1982) (per curiam) (“If the WDCA covers the kind of injury suffered, the act{’s] remedy is exclusive even though under the facts of the particular case no * MICH. COMP. LAWS ANN. § 418.131; Bell v. Ren-Pharm, inc., 269 Mich.App. 464, 466, 713 N.W.2d 285, 286 (2006); see also Downie v. Kent Prods., 122 Mich.App. 722, 738, 333 N.W.2d 528, 536 (1983) (stating that “the exclusive remedy provision of the act bars any common law tort cause of action by an employee against his employer”), aff’d in part and rev'd in part, 420 Mich 197, 362 N.W.2d 605 (1984), amended, 421 Mich. 1202, 367 N.W.2d 831 (1985) Franges v. Gen. Motors Corp., 404 Mich. 590, N.W.2d 392, 399 (1979) App. 32 compensation is payable because there has been no actual loss of earning capacity.”). And although Michi- gan WDCA benefits do not include weekly wage com- pensation for a professional athlete with a salary as large as Brocail’s, wage compensation is not the only “benefit” provided by the WDCA. Highly compensated athletes remain eligible for bei.efits such as reasen- able medical care, medical and vocational rehabilita- tion, and compensation for scheduled losses. See MICH. COMP. LAWS ANN. § 418.360(2). Michigan’s laws of statutory construction also prevent us from accepting Brocail’s interpretation of the WDCA. See Echelon Homes, L.L.C. v. Carter Lum- ber Co., 472 Mich. 192, 196, 694 N.W.2d 544, 547 (2005) (“We begin by examining the plain language of the statute; where that language is unambiguous, we presume that the Legislature intended the meaning clearly expressed — no further judicial construction is required or permitted, and the statute must be enforced as written.”) (emphasis added, citations omitted). As the Haddad court emphasized, “Liberal construction [of the Act] applies whether the employ- ee 1s seeking benefits under the act or resisting application of the exclusive remedy provisions of the act to his cause of action.” Haddad, 64 Mich.App. at 77, 235 N.W.2d at 160. Our analysis is unaffected by the cases from other jurisdictions cited by Brocail. See, e.g., [vey v. N.C. Prison Dep't, 252 N.C. 615, 114 S.E.2d 812 (1960); Davts v. Pioneer, Inc., 834 So.2d 739 (Miss.Ct.App.2003): Superb Carpet Mills, Inc. v. Thomason, 183 Ga.App. App. 33 554, 359 S.E.2d 370 (1987). The Jvey case concerned North Carolina statutes and exceptions that apply only to prisoners. Ivey, 252 N.C. at 619, 114 S.E.2d at 815. The Davis court held that, under Mississippi law, “where an injury is caused by the willful act of an employee acting in the course and scope of his employment and in the furtherance of his employer's business, the Workmen’s Compensation Act is not the exclusive remedy available to the injured party... .” 834 So.2d at 741 (emphasis added) (quoting Miller v. McRae’s, Inc., 444 So.2d 368, 371 (Miss.1984)). The Michigan WDCA similarly contains an express excep- tion to the exclusive-remedy provision “when an em- ployee is injured as a result of a deliberate act of the employer and the employer specifically intended an injury.” MICH. COMP. LAWS ANN. § 418.131(1) (em- phasis added). And as in Haddad, the court in Superb Carpet Mills held that “\t]he benefits conferred by the Act relate to damages for personal injury and not property damage.” Superb Carpet Mills, Inc., 183 Ga.App. at 555, 359 S.E.2d at 371. None of these cases support Brocail’s argument that professional athletes who are paid at inast 200% of the state’s average weekly wage are exempt from the exclusive- remedy provision of the WDCA. c. Application to Brocail’s Causes of Action Because we must apply the exclusive-remedy pro- vision of the WDCA in accordance with its unam- biguous meaning, we overrule Brocail’s fourth issue. App. 34 We affirm summary judgment as to all causes of action pleaded by Brocail other than allegations of an “intentional tort” as defined by section 418.131(1) of the WDCA. See Eversman, 463 Mich. at 92-93, 614 N.W.2d at 864; Am. Bumper & Mfg. Co. v. Nat'l Union Fire Ins. Co., 261 Mich.App. 367, 370 n. 3, 683 N.W.2d 161, 162 n. 3 (2004) (noting that any pleaded cause of action that does not include allegations of intentional conduct is barred by the exclusive-remedy provision of the WDCA). Consequently, we held that Brocail’s negligence claims are barred by the Michigan Work- ers’ Compensation Disability Act. See Harris v. Vernier, 242 Mich.App. 306, 316, 617 N.W.2d 764, 770 (2000) (“Michigan has long recognized that actions for in- juries incurred as a result cf a coemployee’s negli- gence and arising out of the scope of employment are barred by the exclusivel[-|Jremedy provision [of the WDCA|].”); cf Great Am. Ins. Co. v. Queen, 410 Mich. 73, 89, 300 N.W.2d 895, 897 (1980) (“An employee's common-law right to proceed in tort against persons other than his employer or co-workers was not altered by the worker’s compensation act.”) (emphasis added). The exclusive-remedy provision also bars those claims that merely restate Brocail’s negligence and medical negligence or malpractice claims. See Jones v. Bouza, 381 Mich. 299, 302, 160 N.W.2d 881, 882 (1968) (en banc) (“If the [medical] malpractice of a fellow employee, no less than any other negligence of a fellow employee, gives rise to a compensable injury, then workmen’s compensation stands as the sole App. 35 recourse.”). The statute similarly bars his claims based on actual agency, ostensible agency, or vicarious liability for the acts of non-employee health care providers. If the tortfeasor was acting as an employee over whom the Club exercised control, then the WDCA bars the claim. See MICH. COMP. LAWS ANN. § 418.131. If the tortfeasor was an independent contractor over whom the Club lacked control, then the Club also is not vicariously liable. See Janice uv. Hondzinski, 176 Mich.App. 49, 53, 439 N.W.2d 276, 278 (1989). Brocail’s agency and ostensible agency theories feil for the same reasons. See Decker v. Saini, No. 88-361.68 NH, 1991 WL 277590, at *2-4 (Mich.Cir.Ct. Sept.17, 1991) (unpublished) (holding HMO liable for acts of physician because, although HMO was a health care insurer and not a health care provider, the patient reasonably believed, based on the HMO’s representations, that the HMO was the physician’s agent, and patient looked to the HMO for treatment and not just for payment). Under any of these theories, Brocail cannot prevail on his negligence claims against the Club. See Bayless v. Philadelphia Nat'l League Club, 472 F.Supp. 625, 630 (D.C.Pa.1979) (holding that professional baseball player “clearly placed himself within the ambit of the Workmen’s Compensation Act... in that he avers 1) the defendant-employer’s assumption of a duty to provide proper medical care; 2) the failure to provide that care; and 3) resultant harm.”), aff’d, 615 F.2d 1352 (3d Cir.1980). Thus, we overrule Brocail’s eighth issue as well as his fourth issue. App. 36 2. Intentional Torts Exempted from the WDCA’s Exclusive-Reredy Provision The determination of whether a plaintiff has alleged facts constituting a claim for intentional torts is a question of law for the court, although the ques- tion of whether the allegations are true is an issue for the jury. Travis v. Dreis & Krump Mfg. Co., 453 Mich. 149, 154, 551 N.W.2d 132, 135 (1996). Under Michi- gan law, an intentional tort for WDCA purpvses occurs only when an employee is injured as a result of a deliberate act of the employer, and the employer specificaily intended an injury. Jd. at 169, 551 N.W.2d at 141. An employer is deemed to have intended to injure if he had actual knowledge that an injury was certain to occur and wilfully disregarded that knowl- edge. Jd. at 171, 551 N.W.2d at 142. Knowledge must be actual; constructive, implied, or imputed knowl- edge is not sufficient. Jd. at 173, 551 N.W.2d at 143. “A plaintiff may establish a corporate employer’s actual knowledge by showing that a supervisory or managerial employee had actual knowledge that an injury would follow from what the employer delib- erately did or did not do.” Jd. at 173-74, 551 N.W.2d at 143. Here, Brocail pleaded that the Club “had actual knowledge that an injury to Brocail was certain to occur and willfully disregarded that knowledge.” In its traditional motion for summary judgment, the Club asserted that the intentional-tort exception did not apply because (a) the Club is not a medical service provider and did not diagnose or operate on App. 37 Brocail, (b) the C’ab had no intention of trading Brocail before the surgery, and (c) a member of the Club’s front office is the son of a member of the Astros’s front office. None of these grounds defeats or avoids any of the elements of an “intentional tort” as defined by the WDCA. The Club contends that because Brocail did not attach evidence to his summary judgment response to controvert the Club’s evidence, “Brocail failed to raise a genuine issue of material fact regarding his (1) counter-affirmative defense of ‘intentional torts’ un- der the Michigan Worker’s Disability Compensation Act; (2) his fraud claim; and (3) his vicarious liability and agency claims.” In support of this argument, the Club relies on cases addressing counter-defenses that had not been previously asserted by the non-movant. See, e.g., Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex.1996) (per curiam) (plaintiffs raised affir- mative counter-defenses in response to defendant’s motion for summary judgment). Here, however, Brocail specifically asserted the counter-defenses at issue. Thus, as the movant, the Club was required to dis- prove the pleaded counter-defenses in order to estab- lish its entitlement to judgment as a matter of law. In sum, the Club failed to conclusively disprove the factual allegations made in connection with Brocail’s claims of “intentional torts.” But although we agree in part with the argument presented in Appellee’s Brief, at 9 App. 38 Brocail’s sixth issue, his “intentional tort” allegations nevertheless fail because they are barred by the Michigan statute of frauds. C. Michigan Statute of Frauds In its motion for summary judgment, the Club also argued that Brocail’s claims were barred by the Michigan statute of frauds, which provides: (1) In the following cases an agreement, contract, or promise is void unless that agreement, contract, or promise, or a note or memorandum of the agreement, contract, or promise is in writing and signed with an authorized signature by the party to be charged with the agreement, contract, or promise: (g) An agreement, promise, contract, or warranty of cure relating to medical care or treatment. This subdivision does not affect the right to sue for malpractice or negligence MICH. COMP. LAWS ANN. § 566.132(1)(g). The statute does not apply solely to a promise to cure, but applies also to a promise to provide medical care with due care or in a non-negligent manner or to any promise rclating to medical care.’ Smith v. City of Pontiac, 169 Mich.App. 559, 562, 426 N.W.2d 704, 1 (1988) (per cumam). In Smith, the plaintiff Continued on following page) App. 39 In his Third Amended Petition, Brocail alleged that the Club negligently “represented that Brocail would be as good as new and would pitch again soon for the team if he underwent the treatment by team personnel” but nevertheless failed “to use reasonable care to protect plaintiff’s health. ...” Brocail further alleged that the Club committed froud and fraudulent concealment by: falsely representing that the treatment ren- dered by team personnel would cure Brocail’s injury; falsely representing the nature and outcome of the treatment; falsely repre- senting that the treatment rendered by team personnel was proper and necessary; falsely representing that Brocail would be as brought a wrongful death action against the defendant arising out of a decedent's treatment at the defendant’s hospital. Jd. The plaintiff alleged that the defendant was negligent and breached an implied contract to provide medical services, including express and implied warranties to exercise due care in treating the decedent. Jd. The court held that the plaintiff’s contract claim was invalid because the plaintiff admitted there was no written agreement that met the statute of frauds requirement Id.; see also Powers v. Peoples Cmty. Hosp. Authority, 183 Mich.App. 550, 554, 455 N.W.2d 371, 373 (1990) (stating that “the statute requires a writing for any agreement, promise or contract relating to medical care or treatment as well as any warranty of cure” and affirming dismissal of plaintiff's contract and promissory estoppel claims) (emphasis added); Virk v. De troit Receiving Hosp., No. 180621, 1996 WL 33348748, at ] (Mich.Ct.App. Oct.25, 1996) (per curiam, unpublished) (claimant cannot recover under an alternate theory of promissory estoppel if the claim is barred by section 566.132(1\g)) App. 40 good as new and would pitch again soon for the team if he had the treatment. Brocail made similar allegations in connection with his claims of fraudulent inducement, negligent misrepresentation, gross negligence, breach of con- tract, and promissory estoppel. These representations all relate to medical care and treatment; thus, the representations are unen- forceable in the absence of a writing. See Powers, 183 Mich.App. at 554, 455 N.W.2d at 373 (rejecting “plain tiff’s promissory estoppel claim as the alleged prom ise made by defendant hospital’s nursing staff related to medical care or treatment and such promises must be in writing”); see also Malik v. William Beaumont Hosp., 168 Mich.App. 159, 171-72, 423 N.W.2d 920, 925 (1988) (per curiam) (applying statute of frauds to claim that hospital falsely represented that kidney transplant would improve quality of life). Conse quently, the statute of frauds bars claims that Brocail reasonably relied on the Club’s “promise” that he would be cured or would pitch again soon if he submitted to a particular course of medical treat ment.” Brocail argues that his claims fall within an exception ‘tated in the last sentence of section 566.132( wr): “Thi ubdi vision does not affect the right to sue for malpractice or negli gence.” But regardless of whether section 566.132(1)(¢) affect the mght to sue for malpractice or negligence, the WDCA do affect that ability, as discussed supra Because the WDCA bar h suits if brought by an employee against his employer for Continued on follow ne pa ré App. 41 The same reasoning applies to Brocail’s claims of fraudulent concealment. Fraudulent concealment, also known as fraud by nondisclosure or “silent fraud,” cannot occur in the absence of a legal duty of dis closure. M & D, Inc. v. W.B. McConkey, 231 Mich.App 22, 29, 585 N.W.2d 33, 37 (1998). But in order to prove a claim of silent fraud, a plaintiff must show that some type of representation that was false or misleading was made and that there was a legal or equitable duty of disclosure. /d. at 32, 585 N.W.2d at 39. “(T]he touchstone of liability for misdirection or ‘silent fraud’ is that some form of representation has been made and that it was or proved to be false.” /d at 30, 585 N.W.2d at 38. Although the misrepresenta tion may be made through words or conduct,” the plaintiff’s reliance must have been reasonable. But under Michigan law, such reliance on an unwritten representation could not be considered reasonable in light of the statute of frauds. See Malik 168 Mich.App. at 172-73, 423 N.W.2d at 926 (denying claim for promissory e toppel because “it 1s common injuries received in the cour um need not consider whether the » | frauds act " in additiona! bar to those clain ' need consider the Michigan tatute of fraud only im co ection with any Brocail’s surviving claims for intent , ind the languages on which bBrocall ive ontain oO 7 ntentiona tort App. 42 knowledge that the results of medical treatment can- ” not be guaranteed Finally, Brocail argues that this statute applies only to causes of action styled as claims for breach of contract. This argument elevates form over sub stance: his claim that the Club fraudulently induced him to undergo treatment by misrepresenting that he would be cured is based on a promise of cure, and is therefore barred by the statute of frauds We conclude that Michigan’s statute of frauds bars Brocail’s claims based on representations re lating to medical care and treatment. We therefore overrule Brocail’s fifth. seventh. and ninth issue IV. CONCLUSION In summary, we overrule Brocail’s first issue challenging the specificity of the Club’s assertion of the Labor-Management Relations Act as a basis for ummary judgment. We further hold that the duty to provide reasonable medical care arises independently from the collective-bargaining agreement s,ecause that obligation LS imposed by the Michigan Workers Compensation Disability Act, Brocail’s claims arising from an alleged breach of the duty to provide reason able medical care are not preempted by the LMRA On the other hand, Brocail’s claims of fraudulent nducement and failure to provide a proper second pinion are preempted by the LMRA; thus, we over ull econd and third issues concerning such App. 43 srocail pleaded that those who performed the medical services at issue were “team personnel,” Club trainers, agents, or independent contractors under the Club’s control. In effect, he complains that his injuries are attributable to a co-employee. Thus, the WDCA is Brocail’s exclusive remedy for any injury not caused by an “intentional tort” as that phrase is defined under the Michigan WDCA. Accordingly, we overrule Brocail’s fourth and eighth issues. And be- cause claims arising from representations concerning Brocail’s medical care and treatment are barred by Michigan’s statute of frauds, we overrule his fifth, seventh. and ninth issues Finally, although the Club failed to conclusively, disprove the factual allegations made in connection with Brocail’s “intentional tort” claims, the claims to which Brocail attempted to apply this exception are barred by the LMRA or the Michi frauds. Thus, we overrule his sixth tssue. There being ran statute ofl s no remaining claims, we atfirm the judgment of the tral court App. 44 April 3, 2008 [SEAL] JUDGMENT The Fourteenth Court of Appeals DOUGLAS K. BROCAIL, Appellant No. 14-06-00557-CV V. DETROIT TIGERS, INC., Appellee This cause, an appeal from the judgment in favor for appellee, Detroit Tigers, Inc., signed May 18, 2006, was heard on the transcript of the record. We have inspected the record and find no error in the judgment. We order the judgment of the court below AFFIRMED. We order appellant, Douglas K. Brocail, to pay all costs incurred in this appeal. We further order this } decision certified below for observance. App. 45 NO. 2002-48741 DOUGLAS K. BROCAIL IN THE DISTRICT aioe COURT OF DETROIT TIGERS, INC, ageee YOUNES, ET AL TEXAS 125th JUDICIAL District Courts ORDER ON DEFENDANT'S MOTION FOR FINAL SUMMARY JUDGMENT (Filed May 18, 2006) The Court, having heard and considered the motion for summary judgment filed by defendant Detroit Tigers, Inc. together with the responses, replies, and arguments of counsel, grants the motion. It is Ordered that defendant’s motion for final sum- mary judgment motion is granted. Signed: May 18, 2006 's/ John Coselli Judge John Coselli App. 46 [SEAL] Fourteenth Court of Appeals 1307 San Jacinto, 11th Floor Houston, Texas 77002 [Names & Phone Numbers Omitted In Printing] Thursday, May 08, 2008 Bruce FE. Ramage Dale Jefferson Martin, Disiere, Jefferson Martin, Disiere, Jefferson & Wisdom, L.L.P. Neils Esperson Bldg 808 Travis, Suite 1800 & Wisdom, L.L.P. Houston, TX 77002 808 Travis, St 1800 Houston, TX 77002 Levon G. Hovnatanian Michael Jude Lowenberg Martin, Disiere, Jefferson The O’Quinn Law Firm & Wisdom, L.L.P. 2300 Lyric Centre Building 808 Travis, Ste 1800 4400 Louisiana Street Houston, TX 77002 Houston, TX 77002 Thomas W. Pirtle Jeffrey Stewart Davis Laminack, Pirtle & Gardere Wynne Sewell LLP Martines 1000 Louisiana, Suite 3400 440 Louisiana, Suite 1250 Houston, TX 77002-5007 Houston, TX 77002 Peter Scaff Gardere Wynne Sewell LLP 1000 Louisiana, Suite 3400 Houston, TX 77002-5007 RE: Court of Appeals Number: 14-06-00557-CV Trial Court Case Number: 2002-48741 Dougias K. Brocail Ww Detroit Tigers, Inc. App. 47 Please be advised that on this date the Court GRANTED appellant’s(s’) motion to extend time to file motion for rehearing in the above cause; time extended to and including Tuesday, May 19, 2009. CHRISTOPHER A. PRINE, CLERK By Deputy App. 48 FOURTEENTH COURT OF APPEALS [SEAL] 1307 San Jacinto, 11th Floor Houston, Texas 77002 [POSTMARK Sep. 25, 2008] RE: Case No. 14-06-00557-CV Style: Douglas K. Brocail v. Detroit Tigers, Inc. Please be advised that, on this date, the Court OVERRULED appellant’s motion for rehearing in the above cause. T. C. Case # 2002-48741 | Christopher A. Prine, Clerk LEVON G. HOVNATANIAN MARTIN DISIERE JEFFERSON & WISDOM LLP 808 TRAVIS STE 1800 HOUSTON TX 77002 App. 49 OFFICIAL NOTICE FROM SUPREME COURT OF TEXAS Post Office Box 12248 Austin, Texas 78711-2248 [POSTMARK Jan. 30, 2009] RE: Case No. 08-0926 COA #: 14-06-00557-CV Style: DOUGLAS K. BROCAIL Vv. DETROIT TIGERS, INC. Today the Supreme Court of Texas denied the petition for review in the above-referenced case. MAIL TO: MR. BRUCE E. RAMAGE MARTIN DISIERE JEFFERSON & WISDOM LLP 808 TRAVIS SUITE 1800 HOUSTON TX 77002 App. 50 OFFICIAL NOTICE FROM SUPREME COURT OF TEXAS Post Office Box 12248 Austin, Texas 78711-2248 [POSTMARK Mar. 3, 2009] RE: Case No. 08-0926 COA #: 14-06-00557-CV STYLE: DOUGLAS K. BROCAIL Vv. DETROIT TIGERS, INC. Today the Supreme Court of Texas granted the motion for extension of time to file motion for rehear- ing in the above-referenced case. The motion for rehearing was filed in this office on February 27, 2009. MAIL TO: MR. BRUCE E. RAMAGE MARTIN DISIERE JEFFERSON & WISDOM LL P 808 TRAVIS SUITE 1800 HOUSTON TX 77002 App. 51 OFFICIAL NOTICE FROM SUPREME COURT OF TEXAS Post Office Box 12248 Austin, Texas 78711-2248 [POSTMARK Apr. 17, 2009] RE: Case No. 08-0926 COA #: 14-06-00557-CV STYLE: DOUGLAS K. BROCAIL Vv. DETROIT TIGERS, INC. Today the Supreme Court of Texas denied the [SEAL] motion for rehearing of the above-referenced petition for review. MAIL ‘vO: MR. BRUCE E. RAMAGE MARTIN DISIERE JEFFERSON & WISDOMLLP 808 TRAVIS SUITE 1800 HOUSTON TX 77002 App. 52 29 U.S.C.A. § 185. Suits by and against labor organizations (a) Venue, amount, and citizenship Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without re- spect to the amount in controversy or without regard to the citizenship of the parties. (b) Responsibility for acts of agent; entity for pur- poses of suit; enforcement of money judgments Any labor organization which represents employees in an industry affecting commerce as defined in this chapter and any employer whose activities affect com- merce as defined in this chapter shall be bound by the acts of its agents. Any such labor organization may sue or be sued as an entity and in behalf of the em- ployees whom it represents in the courts of the United States. Any money judgment against a labor organization in a district court of the United States shall be enforceable only against the organization as an entity and against its assets, and shall not be en- forceable against any individual member or his assets. (c Jurisdiction For the purposes of actions and proceedings by or against labor organizations in the district courts of App. 53 the United States, district courts shall be deemed to have jurisdiction of a labor organization (1) in the district in which such organization maintains its principal office, or (2) in any district in which its duly authorized officers or agents are engaged in repre- senting or acting for employee members. (d) Service of process The service of summons, subpena, or other legal proc- ess of any court of the United States upon an officer or agent of a labor organization, in his capacity as such, shall constitute service upon the labor organi- zation. (e) Determination of question of agency For the purposes of this section, in determining ‘4 whether any person is acting as an “agent” of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling. App. 54 M.C.L.A. 418.315. Medical care; fees; advisory committee; investigations; utilization review Sec. 315.(1) The employer shall furnish, or cause to be furnished, to an employee who receives a personal injury arising out of and in the course of employment, reasonable medical, surgical, and hospital services and medicines, or other attendance or treatment rec ognized by the laws of this state as legal, when they are needed. However, an employer is not required to reimburse or cause to be reimbursed charges for an optometric service unless that service was included in the definition of practice of optometry under section 17401 of the public health code, 1978 PA 368, MCL 333.17401, as of May 20, 1992. An employer is not required to reimburse or cause to be reimbursed charges for services performed by a profession that was not licensed or registered by the laws of this state on or before January 1, 1998, but that becomes licensed, registered, or otherwise recognized by the laws of this state after January 1, 1998. Attendant or nursing care shall not be ordered in excess of 56 hours per week if the care is to be provided by the employee’s spouse, brother, sister, child, parent, or any combination of these persons. After 10 days from the inception of medical care as provided in this sec tion, the employee may treat with a physician of his or her own choice by giving to the employer the name of the physician and his or her intention to treat with the physician. The employer or the employer’s carrier may file a petition objecting to the named physician selected by the employee and setting forth reasons for App. 55 the objection. If the employer or carrier can show cause why the employee should not continue treat- ment with the named physician of the employee's choice, after notice to all parties and a prompt hearing by a worker’s compensation magistrate, the worker’s compensation magistrate may order that the employee discontinue treatment with the named phy sician or pay for the treatment received from the physician from the date the order is mailed. The employer shall also supply to the injured employee dental service, crutches, artificial limbs, eves, teeth, eyeglasses, hearing apparatus, and other appliances necessary to cure, so far as reasonably possible, and relieve from the effects of the injury. If the employer fails, neglects, or refuses so to do, the employee shall be reimbursed for the reasonable expense paid by the employee, or payment may be made in behalf of the employee to persons to whom the unpaid expenses may be owing, by order of the worker's compensation magistrate. The worker’s compensation magistrate may prorate attorney fees at the contingent fee rate paid by the employee (2) Kixcept as otherwise provided in subsection (1) all fees and other charges for any treatment or atten dance, service, devices, apparatus, or medicine under subsection (1), are subject to rules promulgated by the bureau of worker's compensation pursuant to the administrative procedures act of 1969, 1969 PA 306 MCL 24.201 to 24.328. The rules promulgated shal! establish schedules | maximum charges for the treatment or attendance, service, devices, apparat App. 56 or medicine, which schedule shall be annually re vised. A health facility or health care provider shall be paid either its usual and customary charge for the treatment or attendance, service, devices, apparatus, or medicine, or the maximum charge established under the rules. whichever is less (3) The director of the bureau shall provide for an advisory committee to aid and assist in establishing the schedules of maximum charges under subsection (2) for charges or fees that are payable under this section. The advisory committee shall be appointed by and serve at the pleasure of the director 1) If a carrier determines that a health facility o1 health care provider has made any excessive charges or required unjustified treatment, hospitalization, or visits, the health facility or health care provider shal! not receive payment under this chapter from the carrier for the excessive fees or unjustified treatment, hospitalization, or visits, and ts liable to return to the carrier the fees or charges already collected. ‘he bureau may review the records and medical bills of a health facility or health care provider determined by a carrier to not be in compliance with the schedule of ‘harges or to be requiring unjustified treatment, ho pitalization, or office Visit ») AS used in this section ‘utilization review means the initial evaluation by a carrier of the appro priateness in terms of both the level and the quality of health care and health services provided an injured ‘mployee, based on medically accepted App. 57 utilization review shall be accomplished by a carrier pursuant to a system established by the bureau that identifies the utilization of health care and health s [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0767%3A1. Public record. Not legal advice.