Ottenwess v. Hawkeye Security Insurance

269 N.W.2d 570, 84 Mich. App. 292, 1978 Mich. App. LEXIS 2488
CourtMichigan Court of Appeals
DecidedJune 20, 1978
DocketDocket 77-2819
StatusPublished
Cited by28 cases

This text of 269 N.W.2d 570 (Ottenwess v. Hawkeye Security Insurance) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ottenwess v. Hawkeye Security Insurance, 269 N.W.2d 570, 84 Mich. App. 292, 1978 Mich. App. LEXIS 2488 (Mich. Ct. App. 1978).

Opinions

R. B. Burns, J.

Plaintiff, decedent’s spouse, instituted suit to collect no-fault automobile insurance benefits from decedent’s insurer, Hawkeye Security Insurance Company (Hawkeye), and decedent’s employer’s insurer, Travelers Insurance Company (Travelers). The trial court granted both defendants summary judgment on the authority of Mathis v Interstate Motor Freight System, 73 Mich App 602; 252 NW2d 842 (1977), and plaintiff appeals.

The decedent, Michael Ottenwess, was an employee of Wickes Lumber Company. While examining or attempting to repair a malfunction in the mechanism of a company dump truck, Ottenwess was crushed to death when the dump box suddenly [295]*295came down upon him, trapping him between the box and the frame of the truck. The malfunction came to Ottenwess’s attention while he was making deliveries with the truck in the regular course of his employment. He had just exited the cab and was standing on or next to the dump box when the incident occurred. Following the accident, plaintiff and her two minor children received worker’s compensation benefits from Wickes Lumber Company’s compensation carrier.

I. Liability of Employer’s No-Fault Insurer

Defendant Travelers asserts that the exclusive remedy provision of the Worker’s Disability Compensation Act, MCL 418.131; MSA 17.237(131), prevents recovery by plaintiff, relying upon Mathis v Interstate Motor Freight System, supra. Except for the fact that in that case the employer was self-insured, Mathis is identical to the situation before us as far as Travelers is concerned. There, plaintiff was injured while unloading freight from his employer’s semi-trailer. He drew worker’s compensation benefits and applied for benefits under the no-fault act. The trial judge held that worker’s compensation benefits were plaintiff’s exclusive remedy. In a single sentence this Court affirmed:

"The Supreme Court in Solakis v Roberts, 395 Mich 13, 20; 233 NW2d 1, 4 (1975), said: 'When an employee’s injury is within the scope of the act, workmen’s compensation benefits are the exclusive remedy against the employer.’ Affirmed.” Mathis v Interstate Motor Freight System, supra at 603; 252 NW2d at 842.

Plaintiff seeks to distinguish Mathis on the grounds that, there, the employer was a no-fault self-insurer and as such would pay no-fault benefits for an injury in tort, whereas in the instant case the employer is a contractual insurer for [296]*296whom no-fault benefits are paid ex contractu. Plaintiffs distinction is supported by the recent case of Hawkins v Auto Owners Ins Co, 83 Mich App 225; 268 NW2d 534 (1978). That case was factually indistinguishable from the instant case, and the Court said:

"The defendant in the instant case, unlike the defendant in Mathis v Interstate Motor Freight System, 73 Mich App 602; 252 NW2d 842 (1977), is not plaintiff’s employer as defined in § 131. Consequently, that exclusive remedy provision does not operate to bar the instant circuit court action. Therefore, accelerated judgment, based on § 131, was improper and must be reversed.
"The statutory schemes of worker’s disability compensation and no-fault motor vehicle insurance provide an employee, such as the plaintiff, who is injured in the course of employment while occupying an employer-owned motor vehicle covered by a no-fault policy issued by an insurance company, at least two potential avenues of recovering compensation. The employee may obtain worker’s disability compensation benefits and also may obtain no-fault benefits.”

We do not agree with the distinction made in Hawkins, because it conflicts with the no-fault act’s provision that a self-insurer "has all the obligations and rights of an insurer under this chapter”. MCL 500.3101(4); MSA 24.13101(4). The liabilities of self-insurers and insurers must be coextensive. Under Hawkins, the liability of insurers is greater than that of self-insurers. For the purpose of the application of the exclusive remedy provision of the Worker’s Disability Compensation Act, an employer’s no-fault insurer must be considered the alter ego of the employer.

Nor do we agree with plaintiffs tort-contract distinction. Applicability of the exclusive remedy [297]*297provision of the Worker’s Disability Compensation Act turns not upon the characterization of the asserted cause of action as tort or contract, but upon whether the employee has a right to recover benefits under the act. MCL 418.131; MSA 17.237(131). An employee has a right to compensation where he "receives a personal injury arising out of and in the course of his employment”. MCL 418.301; MSA 17.237(301).

Suit is not barred against employers for all tort, Crawley v General Motors Truck Corp, 259 Mich 503; 244 NW 143 (1932), Panagos v North Detroit General Hospital, 35 Mich App 554; 192 NW2d 542 (1971), Moore v Federal Department Stores, Inc, 33 Mich App 556; 190 NW2d 262 (1971), or all contract, Milton v Oakland County, 50 Mich App 279; 213 NW2d 250 (1973), damages, but where the above criteria for recovery of worker’s compensation are applicable, suit is barred even on a contract theory, Neal v Roura Iron Works, Inc, 66 Mich App 273; 238 NW2d 837 (1975), Milton v Oakland County, supra. Since plaintiff was entitled to, and did in fact receive, worker’s compensation, further recovery cannot be had by labeling the asserted right thereto "contract”.

Mathis is therefore not distinguishable as to Travelers’ alleged liability, and controls the resolution of this issue. However, plaintiff has advanced arguments that the exclusivity provision of the Worker’s Disability Compensation Act does not bar recovery under the no-fault act. These arguments are not met by the brief opinion in Mathis. We have therefore reexamined the issue, and determine that Mathis was correctly decided.

The worker’s compensation exclusivity provision does not itself contain an exception to permit recovery of no-fault benefits, MCL 418.131; MSA [298]*29817.237(131), nor does the no-fault act contain an express partial repeal of the worker’s compensation exclusivity provision.

"Repeals by implication are not favored. The intent to repeal must very clearly appear, and courts will not hold to a repeal if they can find reasonable ground to hold to the contrary.” Couvelis v Michigan Bell Telephone Co, 281 Mich 223, 225; 274 NW 771, 772 (1937).
" 'The principle that the law does not favor repeals by implication is of especial application in the case of an important public statute of long standing, which should be shown to be repealed either expressly, or by a strong and necessary implication.’ 25 R.C.L. p. 920.” Attorney General, ex rel. Owen v Joyce, 233 Mich 619, 623; 207 NW 863, 864 (1926).

It is plaintiffs theory that subsection 3114(3) of the no-fault act clearly contemplates recovery by an employee of both worker’s compensation and no-fault benefits. This subsection provides:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Farm Bureau Mutual Insurance v. MIC General Insurance
483 N.W.2d 466 (Michigan Court of Appeals, 1992)
Rohlman v. Hawkeye Security Insurance
476 N.W.2d 461 (Michigan Court of Appeals, 1991)
Hackley v. State Farm Mutual Automobile Insurance
383 N.W.2d 108 (Michigan Court of Appeals, 1985)
Hornsby v. Southland Corp.
487 A.2d 1069 (Supreme Court of Rhode Island, 1985)
Royal Globe Insurance v. Frankenmuth Mutual Insurance
357 N.W.2d 652 (Michigan Supreme Court, 1984)
Griffin v. Lumbermens Mutual Casualty Co.
341 N.W.2d 163 (Michigan Court of Appeals, 1983)
Davis v. Auto-Owners Insurance
323 N.W.2d 418 (Michigan Court of Appeals, 1982)
State Farm Mutual Automobile Insurance v. Hawkeye-Security Insurance
321 N.W.2d 769 (Michigan Court of Appeals, 1982)
Kalin v. Detroit Automobile Inter-Insurance Exchange
316 N.W.2d 467 (Michigan Court of Appeals, 1982)
LeBlanc v. State Farm Mutual Automobile Insurance
301 N.W.2d 775 (Michigan Supreme Court, 1981)
Dowdy v. Motorland Insurance
293 N.W.2d 782 (Michigan Court of Appeals, 1980)
Mathis v. Interstate Motor Freight System
289 N.W.2d 708 (Michigan Supreme Court, 1980)
Moore v. Travelers Insurance
475 F. Supp. 891 (E.D. Michigan, 1979)
Lindsey v. Hartford Accident & Indemnity Co.
282 N.W.2d 440 (Michigan Court of Appeals, 1979)
Hathcox v. Liberty Mutual Insurance
282 N.W.2d 374 (Michigan Court of Appeals, 1979)
Lewis v. Yellow Freight System, Inc.
279 N.W.2d 327 (Michigan Court of Appeals, 1979)
Hubert v. Citizens Insurance Co. of America
279 N.W.2d 48 (Michigan Court of Appeals, 1979)
Detroit Automobile Inter-Insurance Exchange v. Commissioner of Insurance
272 N.W.2d 689 (Michigan Court of Appeals, 1978)
Daiie v. Com'r of Ins.
272 N.W.2d 689 (Michigan Court of Appeals, 1978)
Ottenwess v. Hawkeye Security Insurance
269 N.W.2d 570 (Michigan Court of Appeals, 1978)

Cite This Page — Counsel Stack

Bluebook (online)
269 N.W.2d 570, 84 Mich. App. 292, 1978 Mich. App. LEXIS 2488, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ottenwess-v-hawkeye-security-insurance-michctapp-1978.