Howard v. White

MacKenzie, P.J.

(dissenting). I respectfully dissent. In my view, the trial court properly granted summary disposition in favor of defendant City of Detroit.

An action in tort against one’s employer is precluded by the exclusive remedy provision of the Workers’ Disability Compensation Act, MCL 418.131; MSA 17.237(131), if it seeks recovery for personal injury arising out of and in the course of employment and if the cause of action is based on the employment relationship. Holody v Detroit, 117 Mich App 76, 79; 323 NW2d 599 (1982).

In this case, paragraphs 8 and 9 of plaintiffs’ complaint allege as follows:

8. At the time of the aforementioned collision, Kim Howard was an employee of the defendant City of Detroit and driving a van owned by the defendant City of Detroit, vehicle number 886-703, (hereinafter referred to as "vehicle number 886-703”), while on a job assignment.
9. At the time of the aforementioned collision, Dennis Kitchen was an employee of the defendant City of Detroit and was riding in the right front passenger seat of vehicle number 886-703 while on a job assignment with Kim Howard. [Emphasis added.]

Further, the record indicates that, at the time of the hearing on defendant’s motion, plaintiff Kitchen had sought and was receiving workers’ compensation benefits and plaintiff Howard was in the process of negotiating a workers’ compensation *595settlement with defendant. Thus, it is apparent that plaintiffs’ position has been that their injuries arose out of and in the course of their employment relationship with defendant.

In order for the dual capacity doctrine to apply, the employer-employee relationship must be entirely unrelated to or only incidentally involved with the incident that is the basis for the cause of action against the employer. Newberry v Uniroyal, Inc, 133 Mich App 800, 804; 350 NW2d 324 (1984). In this case, the majority concludes that defendant’s status as plaintiffs’ employer was merely coincidental to plaintiffs’ cause of action. I cannot agree with that conclusion. The reason plaintiffs were on the road at the time they were injured was to perform their job as refuse collectors. Their work was in no sense "coincidental” to their claim.

Plaintiffs’ cause of action is tantamount to an assertion that the city provided them with an unsafe work environment, a situation clearly within the exclusive remedy provision of the Workers’ Disability Compensation Act. Because I am satisfied that the trial court correctly granted summary disposition in favor of defendant, I would affirm.