Summary
In Szydlowski, where alleged malpractice in the treatment of a back injury resulted in death, a tort action by the employee was permitted.
Summary of this case from Deller v. NaymickOpinion
Docket No. 16548.
Decided February 25, 1975. Leave to appeal granted, 394 Mich. 782.
Appeal from Wayne, Joseph A. Moynihan, Jr., J. Submitted Division 1 June 6, 1974, at Detroit. (Docket No. 16548.) Decided February 25, 1975. Leave to appeal granted, 394 Mich. 782.
Complaint by Florence Szydlowski, as administratrix of the estate of Jacob Szydlowski, against General Motors Corporation, Riker Laboratories Corporation, and Eli Lilly Corporation for wrongful death. Summary judgment for defendant General Motors Corporation. Plaintiff appeals. Reversed and remanded.
Dice, Sweeney Sullivan, P.C. (by Joseph Levin), for plaintiff.
Plunkett, Cooney, Rutt, Watters, Stanczyk Pedersen (by John D. Dougherty and Thomas P. Bingman, Jr.), for defendant General Motors Corporation.
Plaintiff-appellant, Florence Szydlowski, is appealing an order dated December 8, 1972 granting summary judgment to defendant-appellee, General Motors Corporation (hereinafter GM). The motion asserts that Szydlowski's complaint "failed to state a claim upon which relief can be granted", GCR 1963, 117.2(1). Szydlowski disputes that claim.
Szydlowski filed this wrongful death action to recover damages resulting from the death of her husband, Jacob, by heart attack suffered on February 4, 1969, while in GM's employ. She has filed twice for workmen's compensation benefits. Both applications have been dismissed for lack of progress.
GM maintains that workmen's compensation was Szydlowski's exclusive remedy. There is no doubt that if Szydlowski's suit against GM is based on the employer-employee relationship and seeks damages resulting from injuries which arose "out of and in the course of" decedent's employment with GM, MCLA 418.301; MSA 17.237(301), there is no action at law and summary judgment is the proper way to dispose of the complaint.
MCLA 418.131; MSA 17.237(131).
See, e.g., Maiuri v Sinacola Construction Co, 382 Mich. 391; 170 N.W.2d 27 (1969).
Since the Legislature has taken away the common-law negligence action by making workmen's compensation the exclusive remedy, it is no longer possible to "state a claim upon which relief can be granted" in such cases. Cf. Sergeant v Kennedy, 352 Mich. 494, 495; 90 N.W.2d 447, 448 (1958).
It is equally clear that where the "conditions of liability" are not present, where the suit is not based on the employer-employee relationship, or where other than personal injuries are involved, workmen's compensation is not the exclusive remedy.
Erickson v Goodell Oil Co, 384 Mich. 207; 180 N.W.2d 798 (1970).
Panagos v North Detroit General Hospital, 35 Mich. App. 554; 192 N.W.2d 542 (1971).
Milton v Oakland County, 50 Mich. App. 279; 213 N.W.2d 250 (1973).
We must accordingly scrutinize Szydlowski's complaint to determine in which line of cases it falls. We emphasize that we are not deciding whether Szydlowski asserts a meritorious claim, only whether she has pled one. We are testing only the legal, not the factual, sufficiency of her case. In so doing, we accept as true all of Szydlowski's factual allegations as well as any conclusions which can reasonably be drawn therefrom. Martin v Fowler, 36 Mich. App. 725, 729; 194 N.W.2d 524, 526 (1971).
For an excellent discussion of the purpose of GCR 1963, 117.2(1), see Crowther v Ross Chemical Co, 42 Mich. App. 426, 429-431; 202 N.W.2d 577, 580, 581 (1972).
Szydlowski's complaint contains the following pertinent allegations:
"4. On or about February 4, 1969, and for some time prior thereto, Jacob Szydlowski, the deceased, was an employee of defendant, General Motors Corporation, at their [sic] Warren Stamping Plant.
"5. Jacob Szydlowski had on numerous occasions, during the course of his employment, sustained strains and sprains to the muscles and ligaments of his back and shoulders.
* * *
"7. General Motors Corporation, through its medical department personnel, illegally undertook the treatment of Jacob Szydlowski for these strains and sprains of muscles and ligaments on or before February 4, 1969, by reason of the fact that said personnel furnished medical care in a manner not recognized by the state as legal.
"8. On February 4, 1969, Jacob Szydlowski died from cardiac arrest as a direct and proximate result of the ingestion of drugs and medicines improperly administered by non-physician personnel of General Motors Corporation in violation of their statutory warranty."
Decedent's status as a GM employee is alleged, but that is only one of the "conditions of liability", MCLA 418.301; MSA 17.237(301). The injury complained of — death — is not alleged to have arisen out of and in the course of employment. Szydlowski alleges only that the strains and sprains requiring the medication ultimately resulting in death occurred during the employment. She does not allege that the medical treatment itself arose out of and in the course of employment. In addition, there is some question whether medical treatment, even assuming it satisfies the "arising out of and during the course of employment" test if properly given, satisfies that test when illegally administered.
Pettaway v McConaghy, 367 Mich. 651, 655; 116 N.W.2d 789, 791 (1962), cited by defendant, is inapposite as it deals with gross negligence, not illegal conduct.
Construing the complaint most favorably to Szydlowski, the non-movant, it is apparent that she has alleged facts which would justify the conclusion that her husband's death did not arise "out of or in the course of" his employment with GM. Since one of the "conditions of liability" necessary to the invocation of the Workmen's Compensation Act's exclusive remedy provision is absent, her common-law tort claim is well-pled. Accordingly, the motion for summary judgment was improperly entered and must be set aside.
MCLA 418.301; MSA 17.237(301).
We cite, for the benefit of bench and bar, the following message from Crowther, supra, fn 7, at 431: "In a case such as the one now before us, where the resolution of the legal issue may depend greatly upon the factual context, summary judgment on the pleadings is never proper."
We leave open the question whether GCR 1963, 117.2(3) has appropriate application to these facts.
One other issue must be disposed of before this case will be set aright. GM has also filed a motion for accelerated judgment alleging that the circuit court lacks subject matter jurisdiction to consider the question whether the "conditions of liability" exist rendering workmen's compensation Szydlowski's exclusive remedy. Although the circuit judge's opinion does not discuss this motion, we are obliged to do so.
This question was decided in Herman v Theis, 10 Mich. App. 684; 160 N.W.2d 365 (1968). In that case this Court held that the workmen's compensation bureau has exclusive jurisdiction to determine whether the act's "conditions of liability" have been met. However, the continuing vitality of that decision is open to serious question.
In several instances circuit judges have been allowed to decide whether the "conditions of liability" under the Workmen's Compensation Act exist. If the circuit court has jurisdiction to decide that question, then the exclusive remedy clause cannot be jurisdictional, Herman v Theis, supra, to the contrary notwithstanding.
Brooks v Fields, 375 Mich. 667; 135 N.W.2d 346 (1965), Ladner v Vander Band, 376 Mich. 321; 136 N.W.2d 916 (1965), Jones v Bouza, 381 Mich. 299; 160 N.W.2d 881 (1968), Erickson, supra, fn 4, Hudson v Allen, 11 Mich. App. 511; 161 N.W.2d 596 (1968), Renfroe v Higgins Rack Coating Manufacturing Co, Inc. 17 Mich. App. 259; 169 N.W.2d 326 (1969), Threet v Pinkston, 20 Mich. App. 39; 173 N.W.2d 731 (1969), Moore v Federal Department Stores, 33 Mich. App. 556; 190 N.W.2d 262 (1971).
In addition, the Supreme Court held in Sergeant v Kennedy, 352 Mich. 494; 90 N.W.2d 447 (1958), that a motion for summary judgment of no cause of action, GCR 1963, 117.2(1), should be used to assert the related election of remedies claim. If that is true, then the issue is not a jurisdictional one, for otherwise a motion for accelerated judgment, GCR 1963, 116.1(2), would be proper.
Finally, in Bugg v Fairview Farms, 385 Mich. 338; 189 N.W.2d 291 (1971), the Supreme Court allowed an agreement between the parties to vest the circuit court with jurisdiction to decide the "conditions of liability" question. But an objection to subject matter jurisdiction can never be waived and the parties cannot by consent grant a court subject matter jurisdiction which it does not have. Kita v Matuszak, 21 Mich. App. 421, 428; 175 N.W.2d 551 (1970). The conclusion is inescapable that the circuit court has concurrent jurisdiction to decide whether a given plaintiff's exclusive remedy is under the Workmen's Compensation Act. If the "conditions of liability" are found by the circuit judge to exist, a motion for summary judgment should be granted, without prejudice to a proper filing for compensation benefits.
We hold that the circuit court does have subject matter jurisdiction, concurrent with the workmen's compensation bureau, to determine whether the exclusive remedy provision, MCLA 418.131; MSA 17.237(131), forces Szydlowski to return to that forum to seek relief. We hold further that Szydlowski's complaint has stated a cause of action sufficient to avoid summary judgment under GCR 1963, 117.2(1).
Reversed and remanded for proceedings not inconsistent with this opinion. Costs to appellant.