(concurring). I regard it my duty, as well as the duty of the trial bench, to follow the settled law of this state.
Ray v. Transamerica Insurance Company (1968), 10 Mich App 55, is settled law. No panel of this Court has held to the contrary. The Supreme Court has not spoken on the issue.
I am not persuaded that a constitutional question is presented as urged by appellee insurer. Hence, I do not address myself to that issue.
I do record my own judicial disagreement with Ray.
The liability of the insurance carrier under the Michigan Workmen’s Compensation Act is primary. *612It is not the liability of an indemnitor nor guarantor. It is a named party defendant in claims brought by employees under the act, as distinguished from the claims asserted against defendants in other negligence actions where the insurer cannot be named. The insurer is required to respond directly when benefits are awarded under the act. Within the terms of the concerned statute the employer and the insurer are indistinguishable in law and in fact.
The act permits an employer to be a self-insurer. It can hardly be seriously contended that if the employer in the case at bar were a self-insurer, the separate cause of action here asserted could be maintained against the employer because it negligently inspected its own premises or equipment. How then does the existence of insurance coverage create one?
Be all this as it may, Ray is the law of this state. I am constrained to add that if it so flagrantly offended against the legislative intent as judicially construed, the legislature has had the opportunity to express a contrary intent by amendment. It has not done so, and Ray remains the settled law. The failure of the trial judge to apply it was clearly and reversibly erroneous.
I concur with the Chief Judge.