Harris v. Vernier

*323Smolensk, P.J.

(dissenting). I respectfully dissent. ! disagree with the majority’s conclusion that the worker’s compensation exclusive remedy provision, when asserted, as a defense to a third-party no-fault claim brought in the circuit court, constitutes a defense challenging the circuit court’s subject-matter jurisdiction. In this specific context, I conclude that the exclusive remedy provision is properly understood as an affirmative defense. Because defendant failed to raise the issue as an affirmative defense in his responsive pleading, the defense has been waived. Accordingly, I would reverse the trial court’s grant of summary disposition in favor of defendant.

i

In this case, we are asked to decide whether the worker’s compensation exclusive remedy provision should be considered as an affirmative defense or as an attack on the circuit court’s subject-matter jurisdiction.1 The majority concludes that the exclusive remedy provision automatically divests the circuit court of subject-matter jurisdiction over plaintiff’s third-party no-fault claim because the provision grants the Bureau of Worker’s Compensation exclusive jurisdiction over a plaintiff’s claims for personal injuries arising out of and in the course of employment. Yet, it is clear from decisions of our Supreme Court that circuit courts have jurisdiction over a *324plaintiff’s no-fault claims, even when the plaintiff simultaneously pursues a claim for worker’s compensation benefits for injuries arising out of the same motor vehicle accident. Therefore, it cannot logically be said that the exclusive remedy provision always divests the circuit court of subject-matter jurisdiction in this type of case.

In Mathis v Interstate Motor Freight System, 408 Mich 164, 174-175, 183; 289 NW2d 708 (1980), our Supreme Court held that an employee injured in a motor vehicle accident in the course of his employment is not limited to worker’s compensation benefits as his sole remedy, but may also collect no-fault insurance benefits. The Court rejected the defendants’ argument that the worker’s compensation exclusive remedy provision barred the plaintiffs from pursuing actions for damages under the no-fault act, because “ [t]he Worker’s Disability Compensation Act (wdca) and the no-fault insurance act are complete and self-contained legislative schemes addressing discrete problems.” Id. at 179. Following Mathis, our Supreme Court decided Great American Ins Co v Queen, 410 Mich 73, 86; 300 NW2d 895 (1980), which likewise held that a plaintiff injured in a motor vehicle accident in the course of his employment may, in certain circumstances, bring both a personal injury claim in the circuit court and a claim for worker’s compensation benefits under the wdca:

When an employee is injured in a motor vehicle accident in the course of his employment, his entitlement to compensation for his injuries, from all sources, is governed by the worker’s compensation act and the no-fault act. His rights and entitlements under each act are affected by his *325being injured under circumstances which make him subject to the provisions of the other. [Emphasis in original.]

Logically, the worker’s compensation exclusive remedy provision can only divest the circuit court of subject-matter jurisdiction over a plaintiff’s claim if the provision uniformly does so in all cases of the same nature. If the provision merely defeats a plaintiff’s claim in particular factual circumstances, then it should be viewed as an affirmative defense, rather than a defense attacking the circuit court’s subject-matter jurisdiction. Our Supreme Court has defined subject-matter jurisdiction as

“the right of the court to exercise judicial power over that class of cases; not the particular case before it, but rather the abstract power to try a case of the kind or character of the one pending; and not whether the particular case is one that presents a cause of action, or under the particular facts is triable before the court in which it is pending, because of some inherent facts which exist and may be developed during the trial.” [Bowie v Arder, 441 Mich 23, 39; 490 NW2d 568 (1992), quoting Joy v Two-Bit Corp, 287 Mich 244, 253-254; 283 NW 45 (1938).]

See also Campbell v St John Hosp, 434 Mich 608, 613-614; 455 NW2d 695 (1990).

Admittedly, if the exclusive remedy provision had been properly raised as a defense in this case, it would bar plaintiff’s claim because defendant was plaintiff’s coemployee at the time of the accident. “An action against a coemployee for personal injuries is barred if both employees were acting in the course of their employment at the time the injury occurred.” Schwartz v Golden, 126 Mich App 790, 793; 338 NW2d 218 (1983). However, characterization of the exclusive remedy provision as an affirmative defense or as *326a jurisdictional matter cannot depend on the facts of any one particular case. The proper inquiry is whether the circuit court has the abstract power to entertain third-party no-fault claims brought by a plaintiff injured in a motor vehicle accident in the course of his employment. Given the decisions in Mathis and Great American, which provide that a plaintiff may simultaneously bring both a circuit court action for damages under the no-fault act and a claim for worker’s compensation benefits, the exclusive remedy provision does not divest the circuit court of subject-matter jurisdiction over these types of claims.2

Additionally, a published opinion of this Court recently rejected the argument that the exclusive remedy provision deprives the circuit court of subject-matter jurisdiction over personal injury claims brought under the no-fault act. Specht v Citizens Ins Co of America, 234 Mich App 292; 593 NW2d 670 (1999). In Specht, the plaintiff suffered injuries while driving her personal automobile in the course of her employment. In addition to filing a worker’s compensation claim, the plaintiff also filed a lawsuit in the circuit court against her no-fault insurer. The defendant’s sole argument on appeal was that the circuit court lacked jurisdiction to decide the plaintiff’s tort claim. This Court rejected that argument, holding that *327the plaintiff’s no-fault claim “was clearly an issue over which the circuit court had jurisdiction.” Id. at 298. Under MCR 7.215(H)(1), we are bound to follow the rule established in Specht and should therefore reject the instant defendant’s argument that the circuit court lacked subject-matter jurisdiction over plaintiff’s no-fault claim.

The majority attempts to distinguish Mathis, Great American, and Specht from the instant case on the basis of the type of defendant named in those suits. The majority argues that those cases are inapposite because they involved defendants other than the plaintiff’s employer or a coemployee. I respectfully disagree. It is true that none of the cited cases involved a defendant who was also the plaintiff’s coemployee.3 However, I disagree that the identity of the defendant sued determines whether the circuit court has subject-matter jurisdiction over the plaintiff’s claim. In my opinion, the majority’s focus on the “class of litigants” involved in this case, i.e., the fact that plaintiff sued a coemployee, reflects a determination that defendant enjoyed the benefit of a valid defense that, if properly raised, would have completely barred plaintiff’s claim. However, a circuit court’s subject-matter jurisdiction is not determined by “whether the particular case is one that presents a cause of action, or under the particular facts is triable before the court.” Bowie, supra at 39.

*328Finally, the majority’s holding that the circuit court lacked subject-matter jurisdiction over plaintiff’s third-party no-fault claim makes little sense in light of the subrogation provision of the WDCA, MCL 418.827(5); MSA 17.237(827)(5). That statutory section provides a worker’s compensation carrier the right to assert a lien against any recovery attained by the injured worker in an action for personal injuries brought against a third party. In re Worker’s Compensation Lien, 231 Mich App 556, 558-559; 591 NW2d 221 (1998).4 This subrogation provision has been applied in tort actions brought under the no-fault act. McCain v Auto-Owners Ins Co (On Rehearing), 223 Mich App 327, 332; 566 NW2d 629 (1997). If the worker’s compensation exclusive remedy provision deprives the circuit court of subject-matter jurisdiction over injured workers’ no-fault claims, then injured workers would be unable to recover no-fault benefits in circuit court actions, and worker’s compensation carriers would never need to seek a lien against amounts recovered in such suits.

In this case, we are not called to decide whether a plaintiff should be able to sue his coemployee in tort for personal injuries arising out of and in the course of employment. Rather, we are asked to decide *329whether the defense sought to be advanced by defendant is properly characterized as an affirmative defense or as an attack on the circuit court’s subject-matter jurisdiction. For the reasons set forth above, I conclude that the exclusive remedy provision does not deprive the circuit court of subject-matter jurisdiction over an injured employee’s no-fault claim.

n

An affirmative defense is a defense that does not controvert the establishment of the plaintiff’s prima facie case, but otherwise denies relief to the plaintiff. Chmielewski v Xermac, Inc, 457 Mich 593, 617; 580 NW2d 817 (1998), quoting Stanke v State Farm Mut Automobile Ins Co, 200 Mich App 307, 312; 503 NW2d 758 (1993). “[A]n affirmative defense includes any defense that seeks to foreclose a plaintiff from continuing a civil action for reasons unrelated to the plaintiffs prima facie case.” Kelly-Nevils v Detroit Receiving Hosp, 207 Mich App 410, 420; 526 NW2d 15 (1994). In this case, the exclusive remedy provision, if applied, would bar plaintiff’s third-party no-fault claim for reasons completely unrelated to plaintiff’s prima facie case against defendant. Therefore, it should be properly understood as an affirmative defense to plaintiff’s claim.

MCR 2.111(F) requires a party against whom a cause of action has been asserted to state affirmative defenses in the responsive pleading. That rule provides, in pertinent part:

(3) Affirmative Defenses. Affirmative defenses must be stated in a party’s responsive pleading, either as originally filed or as amended in accordance with MCR 2.118. Under a *330separate and distinct heading, a party must state the facts constituting
(a) an affirmative defense, such as contributory negligence; the existence of an agreement to arbitrate; assumption of risk; payment; release; satisfaction; discharge; license; fraud; duress; estoppel; statute of frauds; statute of limitations; immunity granted by law; want or failure of consideration; or that an instrument or transaction is void, voidable, or cannot be recovered on by reason of statute or nondelivery;
(b) a defense that by reason of other affirmative matter seeks to avoid the legal effect of or defeat the claim of the opposing party, in whole or in part;
(c) a ground of defense that, if not raised in the pleading, would be likely to take the adverse party by surprise.

Although the worker’s compensation exclusive remedy provision is not specifically listed within MCR 2.111(F)(3)(a), that does not preclude it from being considered an affirmative defense. The affirmative defenses enumerated in MCR 2.111(F)(3)(a) “were not intended to form a closed class, but were included by way of illustration only.” Campbell, supra at 615. A party that fails to raise an affirmative defense as required by MCR 2.111(F) waives that defense. Id.) Kelly-Nevils, supra at 420. Because defendant failed to raise the worker’s compensation exclusive remedy provision as an affirmative defense in his responsive pleading, the defense has been waived.

I would reverse the trial court’s grant of summary disposition in favor of defendant and would remand this matter to the trial court for further proceedings.

The majority correctly notes that numerous prior cases have characterized the exclusive remedy provision variously as an affirmative defense, as a type of immunity, and as a question of subject-matter jurisdiction. Because those cases simply assumed the character of the exclusive remedy defense, and did not squarely address the issue presently before us, they are not controlling.

Although the majority concedes that “[a] trial court is not automatically divested of jurisdiction over a no-fault claim under the exclusive remedy provision by virtue of the fact that a plaintiff was injured during the course of luis employment,” ante at 317, the majority nevertheless concludes that the provision did strip the circuit court of subject-matter jurisdiction in this case. I respectfully submit that the circuit court either does or does not have subject-matter jurisdiction over injured employees’ third-party no-fault claims. The circuit court’s subject-matter jurisdiction cannot depend on the facts presented in individual cases.

In Mathis, three plaintiffs sued their employers’ no-fault insurers and one plaintiff sued his employer, which was a self-insured entity under the no-fault act. Mathis, supra at 176-178. In Great American, the plaintiff recovered benefits from his employer’s no-fault insurer. Great American, supra at 88. In Specht, the plaintiff sued her private no-fault insurance carrier. Specht, supra at 294.

The majority correctly notes that an injured party’s coemployees and employer are specifically excluded from the definition of the third parties from which a worker’s compensation carrier may seek subrogation. MCL 418.827(1); MSA 17.237(827)(1). However, this exclusion does not affect the general observation that the Legislature intended both the wdca and the no-fault act to apply in cases where a plaintiff suffers personal injuries in an automobile accident while in the course of employment. Mathis, supra; Great American, supra. As set forth above, the fact that a plaintiff may not have a viable cause- of action in a specific factual setting cannot determine whether the circuit court has subject-matter jurisdiction over a general class of cases.