Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED APRIL 24, 2002
KENNETH D. HESSE, Personal
Representative of the Estate of
JASON L. HESSE, Deceased, KENNETH
D. HESSE, CYNTHIA R. HESSE, and
AMY R. HESSE, a Minor, by her next
friend, Kenneth D. Hesse,
Plaintiffs-Appellees,
v No. 118548
ASHLAND OIL, INC., formerly known as
Ashland, Inc., a foreign corporation,
doing business as Valvoline Instant Oil
Change and as the Valvoline Company,
Defendant-Appellant,
and
CHIPPEWA VALLEY SCHOOLS, JAMES J.
RIVARD, JAMES P. MURPHY, and RUTH
ANN BOOMS, Jointly and Severally,
Defendants.
________________________________
PER CURIAM
In this case, plaintiffs, the parents of the decedent1,
claimed that the decedent’s employer was liable in tort for
the negligent infliction upon plaintiffs of emotional
distress, caused when plaintiffs were present at their son’s
workplace at the time of his death. The circuit court denied
defendant’s motion for summary disposition. The Court of
Appeals granted leave to appeal and affirmed the denial of
summary disposition on the claim of negligent infliction of
emotional distress.2 We reverse in part the judgment of the
Court of Appeals and remand this case to the Macomb Circuit
Court for entry of summary disposition in favor of the
defendant on the claim of negligent infliction of emotional
distress. Plaintiffs’ cause of action is barred by the
exclusive remedy provision of the Worker’s Disability
Compensation Act (WDCA), MCL 418.131.
I
The sixteen-year-old decedent was hired by defendant
Ashland Oil, Inc.,3 through the Chippewa Valley Schools’ work
1
The decedent’s minor sister is also named as a
plaintiff by virtue of her loss of consortium claim. Because
that claim is not implicated in this appeal, further
references to “plaintiffs” in this case refer only to the
parents of the decedent.
2
The Court of Appeals agreed with defendant that the
trial court erred in denying summary disposition of the claims
of intentional tort and breach of contract. Those claims are
not before us.
3
While there are multiple defendants in this case, only
defendant Ashland Oil is a party to this appeal. Accordingly,
further references to “defendant” in this case refer only to
2
study plan. After securing a work permit, decedent began
working for defendant at defendant’s “Instant Oil Change”
service facility. On June 2, 1995, a customer brought in a
five-gallon bucket that was filled with a liquid believed by
a coemployee of decedent to be waste oil. Following
procedures outlined by the defendant, the bucket was emptied
into a “catch basin.” Toward the end of normal business
hours, there was a problem with draining the catch basin. The
coemployee set about to check the level of the waste oil in
the catch basin. He purportedly did this by using a
disposable lighter, which caused an explosion.4 In the
ensuing fire, decedent was killed. Decedent’s parents learned
of the explosion and fire almost immediately and went to the
service center. While at the service center, plaintiffs were
told of their son’s death.
II
Plaintiffs sued their son’s employer, his school, and
employees of the school.5 Of the several causes of action
brought by plaintiffs against defendant Ashland, only one
Ashland Oil.
4
The coemployee denied he had used the lighter to look
inside the catch basin. For purposes of resolution of the
issue presented by defendant, it is unnecessary to resolve
this factual dispute.
5
Decedent’s parents filed several causes of action
including breach of contract, gross negligence, and
intentional tort. Additionally, decedent’s minor sister filed
an action for loss of consortium. Decedent’s father also sued
defendant as personal representative of his son’s estate.
3
remained after the Court of Appeals issued its unpublished per
curiam opinion on January 12, 2001 (Docket No. 209075). This
was a claim by plaintiffs of negligent infliction of emotional
distress.6 Plaintiffs claimed damages from witnessing the
death of their child. Defendant asserts that the cause of
action is barred by the exclusive remedy provision of the
WDCA, MCL 418.131, which states:
(1) 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
knowledge. 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 law.
(2) As used in this section and section 827,
“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, and “employer” includes the
employer's insurer and a service agent to a self
insured employer insofar as they furnish, or fail
to furnish, safety inspections or safety advisory
services incident to providing worker's
compensation insurance or incident to a self
6
Plaintiffs’ cause of action is sometimes referred to as
“bystander recovery,” and its elements are set forth in
Wargelin v Sisters of Mercy Health Corp, 149 Mich App 75; 385
NW2d 732 (1986). This Court has never recognized the
existence of such a cause of action, and we decline to discuss
the validity of plaintiffs’ claim at this time because a
discussion of the merits of the claim is unnecessary to our
determination.
4
insured employer's liability servicing contract.
[Emphasis added.]
III
The Court of Appeals held that the claim for negligent
infliction of emotional distress brought by plaintiffs, even
when it concerned a work-related accident, was a separate tort
and thus not within the bar of the exclusive remedy provision.
The plain language of the statute, however, states that the
exclusive remedy for an employee, including “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,” is found in the WDCA. MCL 418.131(2).
This provision is dispositive of this case. Here, the
plaintiffs’ claim has accrued by reason of the death of an
employee of the defendant. The plaintiffs are within the
category of individuals barred from suit, namely, as defined
by § 131(2) of the WDCA, “any other person to whom a claim
accrues by reason of the . . . death of . . . the employee .
. . .” Thus, the claim is barred.
In asserting that plaintiffs’ negligent infliction of
emotional distress claim is not barred by MCL 418.131, the
Court of Appeals and the dissent here rely substantially on
Barnes v Double Seal Glass Co, Inc, 129 Mich App 66; 341 NW2d
812 (1983), and Auto Club Ins Ass’n v Hardiman, 228 Mich App
470; 579 NW2d 115 (1998). However, those cases are materially
5
distinguishable from the present case and, consequently, offer
little guidance in its resolution.
Barnes also involved a tragic workplace death of a
sixteen-year-old. In that case, the Court of Appeals held
that the trial court erred, on the basis of the exclusive
remedy provision of the WDCA, in granting summary disposition
in favor of the employer with regard to the claim of the
employee’s parents for intentional infliction of emotional
distress. Id. at 75-76. This result does not seem unusual in
any way because MCL 418.131(1) provides for an intentional
tort exception to the exclusive remedy rule of the worker’s
compensation scheme and that is the exception the Barnes’ suit
invoked. Thus, since the instant case involves a
nonintentional tort claim, i.e., negligent rather than
intentional infliction of emotional distress, the Barnes
holding is inapposite.
Similarly, the holding of Hardiman is inapposite to the
resolution of the present case. Most importantly, Hardiman
did not involve a worker’s compensation question; rather, it
dealt with the narrow question whether damages in a non
worker’s compensation civil lawsuit, involving a “negligent
infliction of emotional distress” claim, constituted
“derivative damages” so that insurance coverage could be
limited.7 This issue of law is irrelevant to a discussion of
7
Evidently, the negligent infliction of emotional
distress claim in Hardiman was based on an incident in which
6
the nuances of the exclusive remedy provision of the WDCA.
While there is discussion in Hardiman of the distinctions
between derivative and independent actions in civil
litigation, the statute here, MCL 418.131, controls the
lawsuit in the instant case. This statute never alludes to
derivative or independent actions, but simply states that
claims accruing “by reason of the injury to, or death of, the
employee” are barred. Thus, because these plaintiffs have
claims that have accrued “by reason of” the death of the
employee, they are without a remedy, and nothing Hardiman
states affects this in the slightest.
Moreover, although we regard the plain language of MCL
418.131 as decisive, we believe that our decision is
reinforced by an understanding of the history of the exclusive
remedy provision of the WDCA. Helpful in this regard are this
Court’s companion decisions in Moran v Nafi Corp, 370 Mich
536; 122 NW2d 800 (1963), and Balcer v Leonard Refineries,
Inc, 370 Mich 531; 122 NW2d 805 (1963). In both Moran and
Balcer, we addressed whether a claim for loss of consortium
against an employer based on an injury suffered by a spouse as
an employee was barred by the then much less well-defined
a six-year-old witnessed her brother being struck by an
automobile, which rendered the brother a paraplegic. Id. at
472. The Hardiman panel concluded that a claim for negligent
infliction of emotional damages is not “derivative” because it
“may be maintained as a separate, independent cause of action
and is not dependent upon actual injury to, or recovery by,
another person.” Id. at 475.
7
exclusive remedy provision of the Workmen’s Compensation Act,
which did not then, as it does now, expressly extend to
persons other than an employee.8
Notwithstanding the much less sweeping language in the
old statute, Justice O’Hara writing for the Court had no
trouble concluding in Moran that, not just an employee, but
also a third party, was barred from maintaining a cause of
action against an employer under the exclusive remedy
provision. Justice O’Hara said:
Under the above section and the title of the
act, as previously discussed, we believe any
broadening of the base of recovery against the
employer as a result of an industrial injury to
include an action at law by any other person must,
if it is to be authorized, be authorized by
legislative action. We hold the legislative intent
expressed in the act precludes the judicial
construction contended for by plaintiff and adopted
by the learned trial judge [which would have
allowed the loss of consortium claim to go
forward]. [Id. at 543.][9]
8
The language of MCL 411.4, the predecessor of MCL
418.131, as then in effect, stated simply:
Where the conditions of liability under this
act exist, the right to the recovery of
compensation benefits, as herein provided, shall be
the exclusive remedy against the employer.
9
Three justices joined the lead opinion of Justice
O’Hara in Moran that contained this holding. At the time,
there were eight justices on this Court. In a concurring
opinion, Chief Justice Carr, joined by two other justices,
stated “[w]e are in accord with the holding of Mr. Justice
O’Hara that the rights granted by the workmen’s compensation
act to an employee who sustained an injury arising out of and
in the course of his employment are exclusive.” Id. at 545.
Thus, the above-quoted holding from the lead opinion in Moran
regarding the exclusivity of the Workmen’s Compensation Act
constituted a majority holding of this Court. Chief Justice
8
In Balcer, which was considered and released with Moran,
Justice Smith concluded to similar effect that the exclusive
remedy provision barred a claim by a third party against the
employer on the basis of an injury to an employee. He offered
historical background that is edifying:
“The history of the development of statutes,
such as this, creating a compensable right
independent of the employer’s negligence and
notwithstanding an employee’s contributory
negligence, recalls that the keystone was the
exclusiveness of the remedy. This concept emerged
from a balancing of the sacrifices and gains of
both employees and employers, in which the former
relinquished whatever rights they had at common law
in exchange for a sure recovery under the
compensation statutes, while the employers on their
part, in accepting a definite and exclusive
liability, assumed an added cost of operation which
in time could be actuarially measured and
accurately predicted; incident to this both parties
realized a saving in the form of reduced hazards
and costs of litigation.” [Id. at 535 (Smith, J.),
quoting Smither & Co, Inc v Coles, 100 US App DC
68, 70; 242 F2d 220 (1957) (emphasis in Balcer).]
Our holding in this case is also consistent with the
overview of the different approaches to the exclusive remedy
provision that Justice Smith discussed in Balcer at 533-534,
Carr’s opinion included additional discussion of his view that
this Court should not have adopted a cause of action for loss
of consortium, id. at 544-545, which presumably was his reason
for writing separately.
Similarly, in Balcer, the lead opinion, which was joined
by four of the eight participating justices, indicated that
the plain language of MCL 411.4 as then in effect barred the
wife’s loss of consortium claim. Id. at 532-533 (Smith, J.).
The other four justices concurred for the reasons set forth in
Moran, supra. Id. at 535 (Carr, C.J.).
9
quoting 2 Larson, Workmen’s Compensation, § 66.10, p 141, as
follows:
“There are 3 general types of ‘exclusive
liability’ clause which, for present purposes, must
be carefully identified with the cases that depend
upon them; from the narrowest to the broadest, they
are as follows: the Massachusetts type, which only
says that the employee, by coming within the act,
waives his common-law rights; the California and
Michigan type, which say that the employer’s
liability shall be ‘exclusive,’ or that he shall
have ‘no other liability whatsoever’; and the New
York type, which carries this kind of statute 1
step further by specifying that the excluded
actions include those by ‘such employee, his
personal representatives, husband, parents,
dependents or next of kin, or anyone otherwise
entitled to recover damages, at common law or
otherwise on account of such injury or death.’”
[Emphasis in Balcer.]
Since this was written in 1963, MCL 418.131 has been enacted
and has, of course, moved Michigan into the “New York type” of
exclusive remedy provision under which it is even more clear
that a third party ordinarily cannot recover damages from an
employer on the basis of an employee’s death.
Against this background, it is all the more appropriate
that, as with our predecessors, we should continue to accord
a plain reading to the current exclusive remedy provision,
which unambiguously bars from suit “any other person to whom
a claim accrues by reason of the injury to, or death of, the
employee.”
No one would disagree with the dissent that the death
underlying this case occurred under tragic and horrific
circumstances. However, our empathy for plaintiffs does not
10
justify this Court ignoring the plain language of MCL 418.131,
which bars the imposition of liability on defendant in the
present circumstances. It could be argued, as undoubtedly it
has been before the Legislature, that the law should allow a
cause of action under circumstances like those in this case.
Yet, as Justices Smith and O’Hara and the many others on this
Court who have written or signed opinions to a similar effect
have understood, this is a policy matter—which is to say, it
is not this Court’s choice to make. Rather, we, as judges,
must apply the legislation as it is written. As Justice
Cavanagh stated for a unanimous Court in Huggett v Dep’t of
Natural Resources, 464 Mich 711, 717; 629 NW2d 915 (2001):
If the statutory language is clear and
unambiguous, then we conclude that the Legislature
intended the meaning it clearly and unambiguously
expressed, and the statute is enforced as written.
No further judicial construction is necessary or
permitted.
Justice Kelly not only joined that statement, but earlier
stated in her unanimous opinion in Chandler v Dowell
Schlumberger Inc, 456 Mich 395, 406; 572 NW2d 210 (1998), with
regard to the statute at issue there, that “[t]he Legislature
can and may rewrite the statute, but we will not do so.” The
dissent, we assume, still adheres to this rule, but deflects
the thrust of it by the claim that the language of the statute
at issue is ambiguous and, thus, the judiciary is free to
interpret its meaning. The worth of this argument, we
believe, is self-evident to those who read this
11
straightforward statute and the statute’s consistent and
unvarying judicial construction over the whole of the era of
worker’s compensation.
In sum, plaintiffs’ claim against defendant for negligent
infliction of emotional distress is barred by the exclusive
remedy provision of the WDCA contained in MCL 418.131.
IV
We reverse, in part, the judgment of the Court of Appeals
and remand to the Macomb Circuit Court for summary disposition
in favor of defendant. We do not retain jurisdiction.
CORRIGAN , C.J., and WEAVER , TAYLOR , YOUNG , and MARKMAN , JJ.,
concurred.
12
S T A T E O F M I C H I G A N
SUPREME COURT
KENNETH D. HESSE, Personal
Representative of the Estate of
JASON L. HESSE, deceased, KENNETH
D. HESSE, CYNTHIA R. HESSE, and
AMY R. HESSE, a minor, by her next
friend, Kenneth D. Hesse,
Plaintiffs-Appellees,
v No. 118548
ASHLAND OIL, INC., formerly known
as Ashland, Inc., a foreign
corporation, doing business as
Valvoline Instant Oil Change and
as the Valvoline Company,
Defendant-Appellant,
and
CHIPPEWA VALLEY SCHOOLS, JAMES J.
RIVARD, JAMES P. MURPHY, and RUTH
ANN BOOMS, jointly and severally,
Defendants.
___________________________________
KELLY, J. (dissenting).
In its efforts to read the law scrupulously, the majority
has misconstrued the exclusive remedy provision of the
Worker's Disability Compensation Act,1 giving it meaning never
intended by its framers. Plaintiffs allege an injury to
themselves, not to their son. Because their claim falls
outside the scope of the act, this Court should affirm the
decision of the Court of Appeals.
I. Factual and Procedural Background
Plaintiffs witnessed a terrible accident that they assert
was caused by defendant's negligence. They arrived at the
service center simultaneously with fire fighters and found the
building where their son Jason worked aflame from the
explosion that had occurred there minutes before. The fire
was burning too strongly for plaintiffs or anyone else to
rescue Jason from inside. Mrs. Hesse, in her anguish, made a
rescue effort and had to be restrained. She became so
distraught that she required immediate medical attention. She
and her husband remained at the scene for hours and eventually
witnessed the removal of a body, presumably that of their son.
Jason Hesse was burned beyond recognition, his body identified
only by dental records.
As the Court of Appeals recognized, there was ample
evidence that the experience traumatized both Mr. and Mrs.
Hesse to the point of causing them physical harm:
Ashland next argues that plaintiffs produced
no evidence that Kenneth and Cynthia Hesse suffered
1
MCL 418.131.
2
actual physical harm as a result of the accident,
other than the expected shock and distress stemming
from the death of their son. We disagree. Evidence
showed that Cynthia Hesse became so hysterical when
she arrived at the scene of the fire that she
required immediate medical treatment and sedation.
Further, in her deposition, Cynthia Hesse testified
that she experienced additional medical problems as
a result of her trauma. Mrs. Hesse testified that
her preexisting bladder condition was exacerbated
by her nervous condition after Jason's death.
Moreover, she suffered at least one nightmare
related to Jason's death, during which she reacted
so violently that she pulled muscles in her neck
and shoulder, which required medical attention.
Clearly, plaintiffs established a triable issue
with regard to whether Cynthia Hesse incurred
actual physical injury due to the shock she
experienced because of her son's death.
Further, plaintiffs succeeded in establishing
a triable issue with regard to whether Kenneth
Hesse suffered an actual physical injury. According
to the evidence, Kenneth Hesse experienced shock
and trauma related to Jason's death. Mr. Hesse
reported experiencing "depression, anxiety[,]
sleeping problems" and an inability to concentrate.
He also stated that Jason's death had caused him to
abuse alcohol. In August 1996, a doctor prescribed
Mr. Hesse Prozac because he was having "[a] lot of
trouble with energy," which was related to Mr.
Hesse's state of grief following Jason's death.
This evidence establishes a triable issue with
regard to whether Mr. Hesse suffered actual
physical injury as a result of the accident. [Slip
op, pp 9-10 (citations omitted).]
The Court of Appeals concluded that plaintiffs' claim for
their own injuries caused by witnessing the fire stated a
separate tort of negligent infliction of emotional distress.
It was not derived from the injuries to their son. The panel
cited Michigan law recognizing such a nonderivative claim.
Slip op at 9, citing Auto Club Ins Ass'n v Hardiman, 228 Mich
3
App 470, 474-477; 579 NW2d 115 (1998), and Barnes v Double
Seal Glass Co, 129 Mich App 66, 75-76; 341 NW2d 812 (1983).
II. The Cause of Action
A claim for negligent infliction of emotional distress is
generally recognized when a parent witnesses the violent death
of a child. See generally Prosser & Keeton, Torts (5th ed),
§ 54, pp 359-367; see also Consolidated Rail Corp v Gotshall,
512 US 532, 545-549; 114 S Ct 2396; 129 L Ed 2d 427 (1994).2
The common-law cause of action for negligent infliction of
emotional distress has been recognized and applied in
Michigan, although this Court has never ruled on the issue.
Hardiman, supra at 475; Wargelin v Sisters of Mercy Health
Corp, 149 Mich App 75, 81; 385 NW2d 732 (1986).
As stated by the Court of Appeals, the elements of
negligent infliction of emotional distress are: (1) serious
injury threatened or inflicted on a person, not the plaintiff,
of a nature to cause severe mental disturbance to the
plaintiff, (2) shock by the plaintiff from witnessing the
2
The United States Supreme Court in Consolidated Rail
noted that "[n]early all of the States" have recognized some
form of negligent infliction of emotional distress. Id. at
544-545. It went on to identify Michigan as one of nearly
half the states that "now allow bystanders outside of the zone
of danger to obtain recovery in certain circumstances for
emotional distress brought on by witnessing the injury or
death of a third party (who typically must be a close relative
of the bystander) that is caused by the defendant's
negligence." Id. at 549, n 10, citing Nugent v Bauermeister,
195 Mich App 158; 489 NW2d 148 (1992).
4
event that results in the plaintiff's actual physical harm,
(3) close relationship between the plaintiff and the injured
person (parent, child, husband, or wife), and (4) presence of
the plaintiff at the location of the accident at the time the
accident occurred or, if not presence, at least shock "fairly
contemporaneous" with the accident. Wargelin, supra at 81.3
Michigan generally does not regard a claim of negligent
infliction of emotional distress made by a close family member
to be derivative of the family member's injury. The Court of
Appeals considered the difference between derivative and
nonderivative actions in Hardiman, supra. There, it
distinguished the claim of negligent infliction of emotional
distress from claims such as loss of consortium, society, and
companionship, which are derivative claims.4 Unlike them, "a
claim of negligent or intentional infliction of emotional
distress may be maintained as a separate, independent cause of
3
Michigan precedent does not adhere to the "zone of
danger" rule that precludes liability when the witness was not
in any danger himself. See 2 Restatement Torts, 2d, § 313, pp
113-115; See also 2 Stein, Personal Injury Damages (3d ed),
§ 10:31, p 10-69, n 23.
4
The majority makes much of this Court's lead opinion in
Moran v Nafi Corp, 370 Mich 536; 122 NW2d 800 (1963). There,
the Court addressed only the claim of loss of consortium,
describing it as "growing out of the accidental injury to the
employee," or derivative. Id. at 538. See Black's Law
Dictionary (6th ed), defining "derivative" as: "Coming from
another; taken from something preceding; secondary." Where,
unlike a claim for loss of consortium, plaintiffs' claim for
negligent infliction of emotional distress is not derivative
of the employee's injury, Moran does not support the
majority's construction of MCL 418.131.
5
action and is not dependent upon actual injury to, or recovery
by, another person." Hardiman, supra at 475, citing Barnes,
supra at 75-76; Campos v General Motors Corp, 71 Mich App 23,
25; 246 NW2d 352 (1976).
I believe that the claim plaintiffs made in this case is
not derivative of their son's accident, as the term
"derivative" is used in Michigan law. For that reason, it
survives the exclusive remedy provision of the WDCA.
Moreover, I believe that my position finds support in the
language and purpose of the WDCA.
III. The Exclusivity of the WDCA
Although no case is on point, Barnes is closely
analogous. In Barnes, the Michigan Court of Appeals
determined that a claim for the intentional infliction of
emotional distress is not covered by the exclusive remedy
provision of the WDCA. There, the plaintiffs' son was killed
in a work-related accident. Although intentional tort claims
are generally not precluded by the WDCA, the Court of Appeals
analysis of the emotional distress claim is instructive. The
Court concluded that "Plaintiffs' claim for intentional
infliction of emotional distress is made on their own behalf,
for their own injuries, for a tort directed at them rather
than at their son. The claim is not for wrongful death and is
not covered by . . . the exclusive remedy provision of the
WDCA . . . ." See Id. at 76. The instant claim for negligent
6
infliction of emotional distress belongs to plaintiffs in the
same way.
The language of the exclusive remedy provision is not
unambiguous, as the majority unequivocally asserts. MCL
418.131 restricts recovery to the disabled employee and "any
other person to whom a claim accrues by reason of the injury
to, or death of, the employee . . . ." MCL 418.131(2). The
purpose of the WDCA is to provide a system of "compensation to
employees for injuries suffered in the course of employment,
regardless of who is at fault." Clark v United Automotive
Technology, Inc, 459 Mich 681, 686-687; 594 NW2d 447 (1999)
(emphasis added). By way of contrast, plaintiffs allege
injuries to themselves. They were not employed by defendant
and therefore did not sustain their injuries in the course of
employment.
I believe that a fair reading of MCL 418.131 begins with
the understanding that recovery under the WDCA is available to
an injured employee and to individuals standing in his place.
Claims outside the WDCA brought, for example, by the personal
representative of a deceased employee's estate truly accrue by
reason of the employee's death and are precluded by MCL
418.131. On the other hand, plaintiffs' claim is based on the
effect on them of having witnessed the employee's death. It
is not meant to recover for the death itself. They do not
stand in their son's shoes while making this claim. Hence, it
7
falls outside the scope of the WDCA, and MCL 418.131 does not
pertain to it. See Barnes, supra at 71.
Notably, if plaintiffs are prevented from maintaining
this action, they will also be unable to avail themselves of
the remedies of the WDCA. They will have nowhere else to turn
to recover for their physical manifestations of witnessing
their son's horrific death.
As this Court stated in Clark, supra at 687: "In return
for [the employer incurring] almost automatic liability,
employees are limited in the amount of compensation they may
collect from their employer, and, except in limited
circumstances, may not bring a tort action against the
employer." Under the majority's construction of the exclusive
remedy provision, plaintiffs' recovery is precluded, but there
is no corresponding "almost automatic liability" for their
injuries to justify the preclusion. That result could not
have been intended by the Legislature.
IV. Conclusion
The majority has extended the reach of the exclusive
remedy provision of the WDCA to bar plaintiffs' claim of
negligent infliction of emotional distress. The per curiam
opinion effects this leap without citing any authority on
point and without considering that MCL 418.131 is subject to
differing interpretations. The majority relies simply on its
reading of MCL 418.131, obdurately asserting that it is plain
8
and unambiguous.
By contrast, the Court of Appeals interpretation of the
statute is based on the sound reasoning in Barnes, Hardiman,
and Wargelin. This Court should apply existing law and
consider the purpose underlying the WDCA. It should conclude
that the exclusive remedy provision must be construed as not
including the claims of third parties ineligible for
compensation under the WCDA, and it should affirm the judgment
of the Court of Appeals.
CAVANAGH, J.
I would either grant or deny leave to appeal, but would
not dispose of this case by an opinion per curiam.
9