Opinion
354764
10-21-2021
ZAID MINAS, Plaintiff-Appellant, v. BARRA GEORGE FARAS and ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, Defendants, and BARCLAY THERAPY AND REHAB, LLC, ANESTHESIA SERVICES AFFILIATES, and MICHIGAN AMBULATORY SURGICAL CENTER, Intervening Plaintiffs, and NAWAR TRUCKING 1 INC., Defendant-Appellee.
UNPUBLISHED
Macomb Circuit Court LC No. 2018-001969-NI
Before: Shapiro, P.J., and Borrello and O'Brien, JJ.
PER CURIAM.
In this negligence action, plaintiff Zaid Minas appeals the trial court's order granting summary disposition to defendant Nawar Trucking 1 Inc. For the reasons stated in this opinion, we reverse.
I. BACKGROUND
Minas received weekly compensation from Nawar to drive semitrucks owned by Nawar. Nawar was under agreement with Superior Global Logistics, LLC, to haul loads on Superior's behalf. On August 15, 2017, Minas was hauling a load for Superior while driving a semitruck owned by Nawar when he was involved in an accident in Cartersville, Georgia. Minas claims that the truck's tires were worn and defective and that one of the tires blew while he was driving the truck on the interstate, causing the truck to strike a guardrail. Minas alleges a number of injuries arising from the accident and that he is no longer able to work as a result.
Minas filed suit against Nawar alleging that it breached a duty to use reasonable care in maintaining the vehicle supplied to plaintiff. Nawar moved for summary disposition under MCR 2.116(C)(7) (immunity) and (C)(10) (no genuine issue of material fact), contending, in part, that Minas's claim was barred by the exclusive remedy provision of the Worker's Disability Compensation Act (WDCA), MCL 418.101, et seq. Nawar argued that Minas was a Nawar "employee," as defined by MCL 418.161(1)(n), and therefore Minas's sole right of recovery was for worker's compensation benefits and not civil relief. The trial court agreed, ruling that it did not have jurisdiction to adjudicate the claim against Nawar and so granted the motion for summary disposition. The trial court denied Minas's motion for reconsideration. This appeal followed.
Minas's suit also included allegations against Barra George Faras, Minas's fiancé, for injuries allegedly sustained in a separate, and unrelated, automobile accident. The issues arising from the accident with Faras are not part of this appeal.
We review de novo a trial court's decision on a motion for summary disposition. See Lowrey v LMPS & LMPJ, Inc, 500 Mich. 1, 5; 890 N.W.2d 344 (2016). Though the trial court did not specify the subsection on which it granted summary disposition, the trial court relied on evidence outside the pleadings to reach its decision. Therefore, we will treat the motion as having been granted under MCR 2.116(C)(10). See Kefgen v Davidson, 241 Mich.App. 611, 616; 617 N.W.2d 351 (2000). Summary disposition is warranted under this subrule when "there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law." West v Gen Motors Corp, 469 Mich. 177, 183; 665 N.W.2d 468 (2003). "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." Id.
II. ANALYSIS
A.
Minas argues that the trial court improperly granted Nawar's motion for summary disposition because Nawar did not have worker's compensation insurance and, therefore, the trial court had jurisdiction to adjudicate Minas's claim for civil damages. We reverse the grant of summary disposition because there is a question of material fact whether Nawar maintained the requisite insurance coverage.
Under the WDCA's exclusive remedy provision, "[a]n employee, who receives a personal injury arising out of and in the course of employment by an employer who is subject to this act at the time of the injury, shall be paid compensation as provided in this act." MCL 418.301(1). See also Johnson v Detroit Edison Co, 288 Mich.App. 688, 695-696; 795 N.W.2d 161 (2010) ("Typically, an employee's exclusive remedy against an employer for work-related personal injury, or occupational disease, is those benefits provided by the WDCA."). A defendant's "assertion of the exclusive remedy provision of the WDCA is a direct challenge to the trial court's subject-matter jurisdiction . . . ." Harris v Vernier, 242 Mich.App. 306, 309; 617 N.W.2d 764 (2000).
On appeal, Minas argues the trial court erred by granting Nawar's motion for summary disposition because Nawar did not maintain worker's compensation insurance and so, under MCL 418.641(2), Nawar did not have immunity from civil suit. This argument brings to light one circumstance in which an employee may pursue a civil action against an employer. MCL 418.641(2) provides: "The employee of an employer who violates the provisions of . . . [MCL 418.611] shall be entitled to recover damages from the employer in a civil action because of an injury that arose out of and in the course of employment notwithstanding the provisions of section 131." And MCL 418.611(1)(b) states: "Each employer under this act, subject to the approval of the director, shall secure the payment of compensation under this act by . . . insuring against liability with an insurer authorized to transact the business of worker's compensation insurance within this state." In other words, an employee may sustain a civil action against an employer when the employer fails to maintain a worker's compensation policy. See McCaul v Modern Tile & Carpet, Inc, 248 Mich.App. 610, 622-623; 640 N.W.2d 589 (2001), quoting Dir, Bureau of Workers' Disability Compensation v BMC Mfg, Inc, 200 Mich.App. 478, 483; 504 N.W.2d 695 (1993) ("If an employer fails to comply with the insurance requirements of the worker's compensation act . . . it is liable in tort for injuries to its employees.").
In its motion for summary disposition, Nawar argued that Minas was an employee of Nawar and therefore Minas's negligence claims against it were barred by the exclusive remedy provision. In his response to the motion for summary disposition, Minas not only contested Nawar's characterization that he was an "employee, " but also argued that his civil suit was proper because Nawar failed to maintain worker's compensation insurance and was not an authorized self-insurer. In support, Minas submitted an affidavit attesting that Nawar did not maintain worker's compensation insurance. Minas also noted the evidence establishing that he received a 1099 form at the end of the year from Nawar, which shows that he was treated as an independent contractor by Nawar for tax purposes. Minas also points out that if Nawar did not treat him as an employee for tax purposes, it is reasonable to conclude that Nawar did not maintain worker's compensation insurance for him. Thus, Minas has carried his burden to establish a material question of fact as to whether Nawar maintained worker's compensation insurance. See MCR 2.116(G)(4) ("When a motion under subrule (C)(10) is made and supported as provided in this rule, an adverse party . . . must . . . set forth specific facts showing that there is a genuine issue for trial."). And Nawar failed to submit any evidence that it carried worker's compensation insurance or that it received authorization to be a self-insurer. Thus, the trial court erred by granting summary disposition to Nawar when Minas established a question of fact on a material issue.
On appeal, Minas maintains that he was an independent contractor of Nawar, not an employee. However, he does not address the trial court's ruling that he was an employee according to the factors set forth in MCL 418.161(1)(n) or provide argument regarding those factors. Minas also failed to raise this issue in his questions presented on appeal. Mettler Walloon, LLC v Melrose Twp, 281 Mich.App. 184, 221; 761 N.W.2d 293 (2008) (concluding an appellant cannot raise an issue not contained in the questions presented). Accordingly, the question of whether Minas is an employee for purposes of the WDCA is not properly before us, and the trial court's ruling on that matter stands.
In granting Nawar summary disposition, the trial court noted that Nawar's agreement with Superior required Nawar to maintain its own worker's compensation insurance. However, there was no proof that Nawar complied with that contractual obligation.
However, the question of fact in this case is not one for trial. Whether the exclusive remedy provision of the WDCA applies goes to whether the trial court has jurisdiction, Harris, 242 Mich.App. at 309, and whether a court has jurisdiction is a question of law, Midwest Energy Co-op v Michigan Pub Serv Comm, 268 Mich.App. 521, 523; 708 N.W.2d 147 (2005). Because the factual dispute as to whether Nawar carried worker's compensation insurance is dispositive of the jurisdictional question, the trial court shall determine the question of fact on remand. See Dextrom v Wexford Co, 287 Mich.App. 406, 432; 789 N.W.2d 211 (2010) (holding that the circuit court was required to decide a preliminary question of fact determinative of whether governmental immunity applied). On remand, the trial court shall exercise its discretion in permitting additional discovery, briefing or an evidentiary hearing to decide the jurisdictional issue.
B.
Aside from whether Nawar carried worker's compensation coverage, Minas also argues that the WDCA does not apply in this case because his injury did not arise in the scope of employment. Specifically, Minas contends that this action falls outside the scope of the WDCA because Nawar's duty to maintain the truck and tires arose from its contract with Superior. This argument is without merit.
As noted in footnote 3, Minas has not offered support for his argument that he was an independent contractor for purposes of the WDCA.
Again, the exclusive remedy provision provides: "An employee, who receives a personal injury arising out of and in the course of employment by an employer who is subject to this act at the time of the injury, shall be paid compensation as provided in this act." MCL 418.301(1). "An injury arises out of the course of employment when it occurs as a circumstance of or incident to the employment relationship." Calovecchi v State, 223 Mich.App. 349, 352; 566 N.W.2d 40 (1997).
The trial court correctly concluded that Minas's injuries arose during the course of his employment. At the time of the accident, Minas was driving a truck owned by Nawar at the instruction of Nawar. Whether Nawar's duty to maintain the semitruck arose from its contractual obligations with Superior-as Minas contends-has no bearing on whether the accident and Minas's corresponding injuries arose during the course Minas's of employment.
C.
Finally, Nawar presents an alternative ground for affirmance. See Middlebrooks v Wayne Co, 446 Mich. 151, 166 n 41; 521 N.W.2d 774 (1994) (a party may present a preserved "alternative ground for affirmance."). See also Gleason v Dep't of Transp, 256 Mich.App. 1, 3; 662 N.W.2d 822 (2003) ("A trial court's ruling may be upheld on appeal where the right result issued, albeit for the wrong reason."). As it argued before the trial court, Nawar contends on appeal that summary disposition is proper on the ground that Minas was greater than 50% comparatively negligent and therefore precluded from recovering damages. The trial court did not reach this issue because it determined that it lacked jurisdiction over Minas's claim.
As noted, there is a question of fact whether Nawar maintained worker's compensation coverage. If on remand the trial court determines that Nawar did not comply with the WDCA's insurance requirement, Nawar will be "liable in tort for injuries to its employees." State Farm Mut Auto Ins Co v Roe, 226 Mich.App. 258, 265-266; 573 N.W.2d 628 (1997), citing MCL 418.641(2). And if Minas may proceed with a civil suit as allowed by the WDCA, "an employer may not assert as a defense the negligence of the employee, unless that negligence is wilful." Smeester v Pub-n-Grub, Inc (On Remand), 208 Mich.App. 308, 315; 527 N.W.2d 5 (1995), citing MCL 418.141. Nawar does not address whether Minas was willfully negligent and therefore fails to address the applicable standard. And even if Nawar were to provide evidence of willful negligence, the respective percentages of fault is a matter on which reasonable minds can differ, and so, except in rare cases, that determination is left to the fact-finder. See Holton v A+ Ins Assoc, Inc, 255 Mich.App. 318, 323-324; 661 N.W.2d 248 (2003) ("[T]he trier of fact in a tort-based action must allocate liability among those at fault.") (emphasis omitted). Accordingly, we reject Nawar's alternative ground for affirmance.
Reversed and remanded to the trial court for proceedings consistent with this opinion. We do not retain jurisdiction. As the prevailing party, Minas may tax costs. MCR 7.219(A).
Douglas B. Shapiro, Stephen L. Borrello, Colleen A. O'Brien