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Marsin v. DaimlerChrysler Corp.9/20/2005
UNPUBLISHED
Before: Bandstra, P.J., and Neff and Donofrio, JJ.
Plaintiff appeals as of right an order granting defendant's motion for summary disposition. Because plaintiff can not support an intentional tort theory in avoidance of the exclusivity provision of the Michigan Worker 's Disability Compensation Act, we affirm. This case is being decided without oral argument pursuant to MCR 7.214(E).
Because a claim is barred by the exclusive remedy provision of the Michigan Worker 's Disability Compensation Act ("WDCA"), MCL 418.131, a motion for summary disposition of dismissal challenges subject matter jurisdiction. Review of a decision on the motion is de novo, and the appellate court must determine whether the pleadings demonstrate that the defendant was entitled to judgment as a matter of law or whether the affidavits and other proofs showed that there was no genuine issue of material fact. MCR 2.116(C)(4); Bock v General Motors Corp, 247 Mich App 705, 709-710; 637 NW2d 875 (2001). "A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. In evaluating such a motion, the trial court considers the entire record in the light most favorable to the party opposing the motion, including affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties. Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law." Corley v Detroit Board of Education, 470 Mich 274, 278; 681 NW2d 342 (2004).
Under the WDCA, worker 's compensation benefits are the exclusive remedy for a personal injury unless the injury resulted from an intentional tort, and thus, an employer is immune from tort liability except as to intentional torts. MCL 418.131(1); Bock, supra at 710. Under the exclusive remedy provision of the WDCA, an intentional tort exists only when an employee is injured as the result of a deliberate act of the employer and the employer specifically intended an injury. An employer is deemed to have intended to injure if it had actual knowledge that an injury was certain to occur and wilfully disregarded that knowledge. The issue whether an act was an intentional tort is a question of law for the court. The intentional tort provision of the WDCA does not reduce or enlarge rights under law. MCL 418.131(1); Id. at 710-711. To establish an intentional tort under the WDCA, a plaintiff must show that a supervisory or managerial employee had actual knowledge that an injury would follow from what the employer deliberately did or did not do. An injury is certain to occur if there is no doubt that it will occur, and demonstration of the probability that something will occur is insufficient to establish certainty. Id. at 711.
We hold that the trial court did not err in granting defendant summary disposition. Plaintiff's complaint alleged that defendant's failure to implement a policy was "grossly negligent and tantamount to an intentional tort." However, defendant had a policy in place at the time of the incident with respect to "medical emergency" responses. In fact, the medical emergency response policy was implemented and expressly followed in the instant case. Therefore, plaintiff's claim that defendant failed to implement a medical response policy is without merit.
Even so, plaintiff's intentional tort claim fails as a matter of law. Plaintiff's complaint alleged that defendant's failure to implement a policy was "grossly negligent and tantamount to an intentional tort." However, allegations that sound in gross negligence are insufficient to constitute an intentional tort within the meaning of the WDCA. Bock, supra at 712. U
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