Order Michigan Supreme Court
Lansing, Michigan
November 13, 2006 Clifford W. Taylor,
Chief Justice
131638 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
SCOTT R. MOORE, Deceased, and JESSICA Robert P. Young, Jr.
DOUGLAS, Stephen J. Markman,
Justices
Plaintiff-Appellee,
v SC: 131638
COA: 267751
WCAC: 02-000403
PRESTIGE PAINTING and CONTRUCTION
ASSOCIATION OF MICHIGAN,
Defendants-Appellants.
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On order of the Court, the application for leave to appeal the June 2, 2006 order of
the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in lieu of granting
leave to appeal, we REMAND this case to the Court of Appeals for consideration, as on
leave granted, of the question whether the Workers’ Compensation Appellate
Commission erred in holding that the decedent had “deserted” the plaintiff’s daughter, so
as to make the daughter a conclusive dependent under the second sentence of MCL
418.331(b).
We do not retain jurisdiction.
CORRIGAN, J., concurs and states as follows:
I concur with the Court’s decision to remand this case to the Court of Appeals for
consideration as on leave granted. I write separately to highlight my concerns about the
Workers’ Compensation Appellate Commission’s (WCAC’s) analysis.
I. Facts
Plaintiff Jessica Douglas gave birth to a daughter whom she named Jamie.
Plaintiff now contends that she was in an exclusive sexual relationship with Scott Moore
at the time of Jamie’s conception. After Jamie was born, plaintiff and her daughter
moved in with Moore. But about two months later, plaintiff and Moore quarreled, so
plaintiff and her daughter moved back to plaintiff’s parents’ home. From that point
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forward, Moore provided no financial support to plaintiff or her daughter. Moore did,
however, sue to determine Jamie’s paternity. Five days before the paternity hearing,
Moore died in a workplace accident. He was employed by defendant at the time.
Plaintiff Jessica Douglas sought workers’ compensation death benefits on behalf of
Jamie. Defendant and its insurer objected, challenging whether Jamie was Moore’s
daughter, and, if so, whether Jamie was Moore’s dependent. The WCAC ultimately
found that plaintiff had met her burden of proving that Moore was Jamie’s father, and
that Jamie was a conclusive dependent of Moore because he had “deserted” her under
MCL 418.331(b). The Court of Appeals denied leave to appeal.
II. Discussion
I have three concerns regarding the WCAC’s analysis in affirming the magistrate’s
award of death benefits to plaintiff on behalf of her daughter.
First, the WCAC relied on a “court document” that was apparently not in the
record. In affirming the magistrate’s determination of paternity, the WCAC relied on
Moore’s “admission in the paternity petition” and “[p]laintiff’s exhibit #1, a court
document, [that] evidences that it was Mr. Moore who was the plaintiff in a paternity suit,
trying to establish his rights.” (WCAC opinion, p 5.) As Commissioner Przybylo
pointed out in his dissent, the WCAC could not properly consider the paternity complaint
as an admission because the records from the paternity action were never introduced as
evidence in the workers’ compensation action. I question how the WCAC arrived at any
conclusion regarding matters not in evidence.
Second, I question the WCAC holding that Jamie Douglas is a conclusive
dependent of Moore because Moore “deserted” her within the meaning of MCL
418.331(b). MCL 418.331(b) provides, in pertinent part:
The following persons shall be conclusively presumed to be wholly
dependent for support upon a deceased employee:
***
(b) A child under the age of 16 years . . . . In the event of the death
of an employee who has at the time of death a living child by a former
spouse or a child who has been deserted by such deceased employee under
the age of 16 years, . . . such child shall be conclusively presumed to be
wholly dependent for support upon the deceased employee, even though
not living with the deceased employee at the time of death and in all cases
the death benefit shall be divided between or among the surviving spouse
and all the children of the deceased employee, and all other persons, if any,
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who are wholly dependent upon the deceased employee, in equal shares the
surviving spouse taking the same share as a child.
In determining that Moore “deserted” Jamie, the WCAC stated, “When a parent is
attempting to establish paternity in court and at the same time fails to support the
involved child, he is as much a deserter of his child as the father who leaves town and
disguises his identity to avoid supporting his child born out of wedlock.” (WCAC
opinion, p 8.) At the time of Moore’s death, Moore and plaintiff were not married. It had
not been established that Jamie was Moore’s child. In fact, it appears that plaintiff did
not concede that Moore was Jamie’s father, because, if she had, a paternity suit would not
have been necessary. Because there was a question regarding paternity, Moore had no
established legal obligation to support Jamie. Further, it was understandable that Moore
would not provide support to a woman who had left him and taken with her a child he
was not sure was his own. How could Moore desert Jamie when there had been no
determination before Moore died that he had a legal obligation to support Jamie or that
Jamie was Moore’s “child” under MCL 418.331(b)?
Third, the WCAC decision appears to be rooted in the WCAC’s own views of
“socially remedial legislation” (WCAC opinion, p 8) and based on inapplicable case law
purportedly supporting these views, rather than on the language of the statute. In
determining that Moore “deserted” Jamie, the WCAC focused on the need to treat
legitimate and illegitimate children equally, citing Bettelon v Metalock Repair Service,
137 Mich App 448 (1984). The issue in Bettelon was whether a decedent’s illegitimate
child could be considered a dependent who is entitled to benefits. The Bettelon panel
held that “[w]here paternity is found, we hold that an illegitimate child must be treated no
differently from a legitimate child in determining dependency.” Id. at 453. But this
discussion of legitimacy in Bettelon does not address the situation in the instant case,
where Moore’s paternity was not established before he died. There is no dispute that
legitimate and illegitimate children are equally entitled to benefits under the statute. If
Jamie is not a conclusive dependent, it is not because she was born out of wedlock, but
because Moore did not “desert” her under the meaning of the statute. In fact, even if
plaintiff and Moore were married when Jamie was born and remained married until
Moore died, Jamie would not be a conclusive dependent under MCL 418.331(b) unless
Moore “deserted” her.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
November 13, 2006 _________________________________________
t1107 Clerk