Before its amendment by 1987 PA 28, subsection 131(1) was silent regarding whether an employee could sue in tort for an intentional tort suffered at the hands of his employer. This Court construed the prior version of subsection 131(1) in Beauchamp v Dow Chemical Co, 427 Mich. 1; 398 N.W.2d 882 (1986). In Beauchamp, the plaintiff was exposed at work to the chemical "Agent Orange" and, as a result, suffered physical and mental injuries.
In an opinion released on December 23, 1986, the Supreme Court held that the exclusive remedy provision of the WDCA does not bar an action by an employee for an intentional tort by an employer and that whether a tort was intentional should be determined by applying a "substantial certainty" standard, i.e., by discerning whether the employer intended the act that caused the injury and knew that the injury was substantially certain to occur. Beauchamp v Dow Chemical Co, 427 Mich. 1; 398 N.W.2d 882 (1986). Plaintiffs, in their brief on appeal, maintain that they successfully pleaded facts in fulfillment of the Beauchamp standard.
The exclusive remedy provision of the workers' compensation act bars recovery for physical or mental injury resulting from accident, and does not bar claims for invasion of a worker's interest in being free from interference with other interests, such as injuries to reputation resulting from defamation. See Beauchamp v Dow Chemical Co, 427 Mich. 1; 398 N.W.2d 882 (1986), in which this Court held that the exclusive remedy provision bars recovery by an employee for accidental injury and not for an intentional tort, and declared that where the employer knew that the injury was substantially certain to occur from the employer's intentional act, the employer may be found to have committed an intentional tort. In Beauchamp, the plaintiff sought recovery for physical and mental injury resulting from exposure to "Agent Orange" during employment with Dow Chemical.
If we find that it does not, we must determine what constitutes an intentional tort, and whether Joshua's claim was properly dismissed on summary judgment. [ยถ 11] Most states do not bar common-law suits alleging intentional torts by employers, despite the exclusive remedy provisions in their Workers' Compensation Acts. Fisher v. Shenandoah Gen. Const. Co., 498 So.2d 882, 886 (Fla. 1986); Beauchamp v. Dow Chemical Co., 427 Mich. 1, 398 N.W.2d 882, 889 (1986) (citing Petramalo, "Employer total liability," 1986 ABA National Institute on Workers' Compensation, p. 167). For example, courts in North Carolina, Ohio, Michigan, Minnesota, Montana, Indiana, Arkansas, Connecticut, and Vermont all acknowledge an exception to their workers' compensation exclusive remedy provisions for certain intentional torts.
Michigan courts have also criticized breach-of-contract claims that are disguised tort claims, but Michigan courts have stated in dicta that whether the worker's compensation act precludes a breach-of-contract claim for the employer's failure to provide a safe work environment depends on whether the contract terms are express or implied, as the exclusive-remedy provisions would presumably only bar the latter. In Beauchamp v. Dow Chem. Co., 398 N.W.2d 882 (Mich. 1986), a research chemist applied for workers' compensation benefits based on his exposure to certain chemicals, which he alleged impaired his normal bodily functions. See 398 N.W.2d at 883.
The Worker's Disability Act does not bar actions for intentional torts. Beauchamp v. Dow Chemical Company, 427 Mich. 1, 11, 398 N.W.2d 882 (1986) (resolving a division within the Michigan Court of Appeals). An intentional tort does not require an actual intention to injure: If the injury is substantially certain to occur as a consequence of actions the employer intended, the employer is deemed to have intended the injuries as well. . . .
The accident in AMCA's workplace occurred on January 21, 1987. The Michigan Supreme Court shortly before this date had occasion to decide whether intentional torts by an employer might take a work-related injury outside the broad scope of Michigan's workmen's compensation law in Beauchamp v. Dow Chemical Co., 427 Mich. 1, 398 N.W.2d 882 (1986). Intentional torts were held to be outside the scope of the workmen's compensation law, and would therefore give rise to a traditional suit against the employer in tort:
"When the employee seeks to recover benefits, the question is whether the injury was an accident from the employee's perspective; if the employer seeks to impose the accident requirement as a defense, the question is whether the injury was an accident from the employer's perspective." Beauchamp v. Dow Chemical Co., 427 Mich. 1, 398 N.W.2d 882, 888 (1986) (citing 2A Larson, Workmen's Compensation ยง 68.12)). Accordingly, where the incident arrives in court not as a compensation claim, but as a damage suit against an employer-assailant, then "it is the employer who must affirmatively plead the exclusiveness of the act as a defense.
When did the claims "arise?" Debtor's allegedly tortious acts occurred in June 1984, two months before Debtor filed its chapter 11 petition. Nevertheless, third-party plaintiff Respondents argue that Plaintiff # 1's claim for intentional tort as well as the third-party claims for contribution or indemnity arose in December 1986, several months after this Court confirmed Debtor's plan of reorganization, that is, on the decisional date of Beauchamp v. Dow Chemical Co., 427 Mich. 1, 398 N.W.2d 882 (1986). The Michigan Supreme Court, in Beauchamp, considered an employee's right to assert intentional tort claims against an employer in spite of the Worker's Disability Compensation Act's exclusivity provision and despite the absence of express statutory language allowing civil actions for torts. The Court concluded that the Legislature had never intended "that the exclusive remedy section of the act be construed to preclude a plaintiff's recovery for injuries suffered in an intentional tort . . ."
Still others require intentional conduct which the employer knows is "substantially certain" to cause injury or death. Bazley v. Tortorich, 397 So.2d 475 (La. 1981); Beauchamp v. Dow Chemical Co., 427 Mich. 1, 398 N.W.2d 882 (1986); Jones v. VIP Development Co., 15 Ohio St.3d 90, 472 N.E.2d 1046 (1984); Blankenship v. Cincinnati Milacron Chemicals Inc., 69 Ohio St.2d 608, 433 N.E.2d 572 (1982) VerBouwens v. Hamm Wood Products, 334 N.W.2d 874 (S.D. 1983). For a good discussion of the meaning of willful and wanton negligence, see Pleasant, 312 N.C. at 714-15, 325 S.E.2d at 247-48.