Opinion
SC: 159865, 159866 COA: 332442, 338363 SC: 159867 COA: 344533
04-17-2020
Sebastian KUHLGERT, Conservator of Elisabeth Ostendorf, Plaintiff-Appellee, v. MICHIGAN STATE UNIVERSITY and Board of Trustees of Michigan State University, Defendants, and United Educators, Intervening Defendant-Appellant. Elisabeth Ostendorf, Plaintiff-Appellee, and United Educators, Intervening Plaintiff-Appellant, and State Farm Mutual Automobile Insurance Company, Intervening Plaintiff, v. Michigan State University, Defendant-Appellee.
Order
On order of the Court, the application for leave to appeal the May 21, 2019 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
Markman, J. (concurring). At issue here is whether the injuries sustained by Elisabeth Ostendorf were subject to the exclusive-remedy provision, MCL 418.131(1), of the Worker’s Disability Compensation Act, MCL 418.101 et seq. In my view, the Court of Appeals was correct in concluding that her injuries were not subject to this provision on the basis of MCL 418.161(1)(b) of the Act, which provides that "[n]ationals of foreign countries employed pursuant to section 102(a)(1) of the mutual educational and cultural exchange act of 1961, Public Law 87-256, 22 USC 2452, shall not be considered employees under this act." As the Court of Appeals explained, " 22 USC 2452(1)(a) is not limited to those educational exchange employees paid directly by the State Department. Instead, by its plain language, the statute also applies to those employees [such as Ostendorf] who are indirectly financed by that entity through its [exchange visitor programs]." Kuhlgert v. Mich. State Univ. , 328 Mich. App. 357, 369, 937 N.W.2d 716 (2019).
I thus see no reason to decide whether the Court of Appeals was also correct in concluding that her injuries were not subject to the exclusive-remedy provision because they were not "receive[d] ... arising out of and in the course of employment," MCL 418.301(1), where she was injured while walking to her vehicle on the premises of her employer after leaving the building in which she worked. See generally Simkins v. Gen. Motors Corp. (After Remand ), 453 Mich. 703, 556 N.W.2d 839 (1996).
Accordingly, because I agree with the Court of Appeals that Ms. Ostendorf’s injuries were not subject to the exclusive-remedy provision of the WDCA, I concur with our order denying leave to appeal.