Sign In

153829 - McQueer v Perfect Fence Co

David J. McQueer,
Mark R. Granzotto
(Appeal from Ct of Appeals)
(Grand Traverse – Power, T.)
Perfect Fence Company,
David M. Shafer


​​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 In an unpublished opinion, the Court of Appeals reversed, holding that plaintiff had done enough to maintain or further develop his claims under MCL 418.171(4) and the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.