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Hool v. William A. Kibbe & Associates11/22/2005
UNPUBLISHED
Before: Donofrio, P.J., and Zahra and Kelly, JJ.
Plaintiff Janet Hool, as Personal Representative of the Estate of Gary Hool, deceased (Hool), and third-party defendant General Motors Corporation (GM), appeal as of right the trial court's opinion and order granting summary disposition in favor of defendant Darwin Eagle and defendant/third-party plaintiff William A. Kibbe & Associates, Inc. (Kibbe). We affirm in part, reverse in part, and remand.
On January 25, 2001, GM employed Hool at its Saginaw Metal Casting plant. On that day, Eagle, a contract supervisor filling in for Hool's regular supervisor, directed Hool and two other employees to conduct a tear-out of the refractory brick in a furnace at the plant. As Hool and his co-workers removed the brick, it suddenly gave way and collapsed, injuring one of the co-workers and killing Hool.
Eagle was working as a contract supervisor at the GM plant under an agreement between Kibbe and GM. The agreement required Kibbe to provide GM with contract supervisors to support its operations. GM employed Eagle for approximately twenty-seven years before his retirement in 1994. According to Eagle, after his retirement in 1994, he learned GM was interested in having him return to work as a contract supervisor, and he was instructed to contact Kibbe. Eagle stated that after executing the contract with Kibbe, he had no further personal contact with Kibbe, except for sending in his hours. GM assigned all of Eagle's work.
Following the incident, plaintiff filed suit against Kibbe alleging both direct negligence and vicarious liability for Eagle's conduct. Eagle was later added as a defendant. Eagle filed a motion for summary disposition pursuant to both MCR 2.116(C)(7) and (10), arguing that GM was his employer at the time of the accident under the economic realities test and thus as Hool's co-employee he was protected under the exclusive remedy provision of the Worker 's Disability Compensation Act (WDCA), MCL 418.101 et seq. Kibbe joined Eagle's motion. Plaintiff opposed defendants' motions asserting that Eagle was not GM's employee under the economic realities test. Plaintiff also argued in the alternative, that if the court did not agree that Eagle was Kibbe's employee as a matter of law, the facts surrounding Eagle's employment status create a fact question for the jury. Plaintiff also filed a cross-motion for summary disposition under MCR 2.116(I)(2) asserting that the facts of Eagle's employment were not reasonably in dispute and show Eagle was an employee of Kibbe, not GM.
Kibbe filed a third-party complaint against GM claiming that based on the agreement between Kibbe and GM for Eagle's services, Kibbe was entitled to both express and common-law indemnification regarding any liability arising from Hool's death. These parties then filed cross-motions for summary disposition. Kibbe argued that GM was required to indemnify it for Hool's claims because GM's acts or omissions caused Hool's death and GM failed to properly train Eagle in violation of the agreement. GM responded arguing that because Eagle was not GM's employee under the terms of the agreement, Eagle's actions could not create any liability on the part of GM.
After entertaining oral argument, the trial court granted Eagle's motion for summary disposition under MCR 2.116(C)(7), finding that Eagle was an employee of GM under the economic realities test, and therefore, the exclusive remedy provision of the WDCA barred plaintiff's claims against Eagle as Hool's co-employee. The court also granted Kibbe's motion for summary disposition against plaintiff under MCR 2.116(I)(2), concluding that because Kibbe did not re
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