153829 - McQueer v Perfect Fence Co
Attorney Information
David
J. McQueer,
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Mark R. Granzotto
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Plaintiff-Appellee,
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v
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(Appeal from Ct of Appeals)
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(Grand Traverse – Power, T.)
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Perfect Fence Company,
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David M. Shafer
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Defendant-Appellant.
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Order Link
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Opinions Link
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Summary
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Plaintiff, an employee of defendant Perfect
Fence Company, was injured while installing a fence when he was struck in the
head by a Bobcat that was being used to drive a fence post into the ground. The
operator of the Bobcat was plaintiff’s nominal supervisor, who had allegedly,
just a day or two earlier, been instructed by defendant’s owner not to employ
the Bobcat in that manner because it was too dangerous. After plaintiff brought
this negligence suit, defendant moved for summary disposition, arguing that
plaintiff was an employee receiving worker’s compensation benefits, and that
the exclusive remedy provision of the worker’s compensation act barred the
suit. The trial court agreed, rejecting plaintiff’s argument that he could
maintain his suit pursuant to MCL 418.171(4), which provides that statutory
employers who try to circumvent the insurance requirements of the act may be
held liable in tort. The trial court also refused to allow plaintiff to amend
his complaint to add an intentional tort claim, because there was no evidence
of any intent to injure, or to add a breach of contract claim, because the
amount involved was jurisdictionally inadequate. In an unpublished opinion, the
Court of Appeals reversed, holding that plaintiff had done enough to maintain
or further develop his claims under MCL 418.171(4) and the intentional tort
exception to the worker’s compensation exclusive remedy. The Supreme Court has
ordered oral argument on the defendant’s application for leave to appeal to
address: (1) whether the statutory employer provision of MCL 418.171(4) is
applicable to plaintiff’s claims; and (2) if so, whether plaintiff has
established a genuine issue of material fact sufficient to avoid summary
disposition; and (3) whether the Court of Appeals erred by reversing the trial
court’s order denying, on the basis of futility, plaintiff’s motion to amend
his complaint to add an intentional tort claim.