MARK BOGGS V SCOTT GATES
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STATE OF MICHIGAN
COURT OF APPEALS
MARK BOGGS,
UNPUBLISHED
July 28, 2000
Plaintiff-Appellant,
v
No. 220995
Kent Circuit Court
LC No. 96-011294-NO
SCOTT GATES,
Defendant-Appellee.
Before: Bandstra, C.J., and Jansen and Whitbeck, JJ.
PER CURIAM.
Plaintiff appeals as of right from the trial court’s order of summary disposition in favor of
defendant pursuant to MCR 2.116(C)(10). We affirm.
This case arises out of an injury suffered by plaintiff while he was working as a supervising
machinist at Quality Die and Mold Corporation. Defendant was the plant superintendent and plaintiff’s
supervisor at Quality Die when plaintiff was injured. In December 1994, a spindle speeder was not
working properly on the steel milling machine that plaintiff was operating. Plaintiff removed the spindle
speeder and gave it to defendant for repair. Ultimately, defendant took the part home to fix it and
returned it to plaintiff the following day. When plaintiff installed the spindle speeder, he heard a rattling
noise and leaned closer to the machine to detect the cause of the noise. Plaintiff was then struck in the
right eye by a rod that had bent outward and he lost eighty-five percent of the vision in that eye. Plaintiff
did receive a lump sum worker’s compensation payment of $80,000 because of the injury he suffered
on the job.
Plaintiff filed suit against defendant in October 1996, alleging that defendant negligently
attempted to repair the spindle speeder.1 Defendant later moved for summary disposition under § 131
and §827 of the Worker’s Disability Compensation Act (WDCA), MCL 418.101 et seq.; MSA
1
We note that the appeal involving the declaratory judgment action regarding defendant’s homeowner’s
insurer, and whether the insurer has a duty to defend and indemnify in this action, is also being decided
by this panel today. See State Farm Fire and Casualty Co v Boggs, unpublished opinion per curiam
of the Court of Appeals, issued __/__/2000 (Docket No. 218886).
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17.237(101) et seq., contending that plaintiff’s exclusive remedy was worker’s compensation because
plaintiff’s complaint sounded only in negligence against a coemployee. The trial court granted
defendant’ motion for summary disposition, ruling that defendant was a coemployee and that there was
no evidence that defendant was an independent contractor nor acting outside the scope of his
employment when he attempted to fix the machine part at home.
Plaintiff argues that the trial court improperly granted summary disposition in favor of defendant
because he and defendant were not coemployees for the purposes of § 131 and § 827 of the WDCA.
We review de novo a trial court’s ruling on a motion for summary disposition. Spiek v Dep’t of
Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). A motion under MCR 2.116(C)(10)
tests the factual support of a plaintiff’s claim. The court must consider the pleadings, affidavits,
depositions, admissions, and any other documentary evidence submitted or filed in the action to
determine whether a genuine issue of any material fact exists to warrant a trial. Spiek, supra, p 337.
MCL 418.827(1); MSA 17.237(827) provides in relevant part:
Where the injury for which compensation is payable under this act was caused
under circumstances creating a legal liability in some person other than a natural person
in the same employ or the employer to pay damages in respect thereof, the acceptance
of compensation benefits or the taking of proceedings to enforce compensation
payments shall not act as an election of remedies but the injured employee or his or her
dependents or personal representative may also proceed to enforce the liability of the
third party for damages in accordance with this section.
As stated in Jones v General Motors Corp, 136 Mich App 251, 257-258; 355 NW2d 646 (1984),
“[t]he exclusive remedy and coemployee provisions bar a suit against an employer for the negligence of
a coemployee acting within the scope of employment.” Plaintiff, however, contends that he is not
barred from suing defendant because defendant was not acting as a fellow employee of Quality Die
when he took the spindle speeder home to repair it. It is plaintiff’s contention that defendant was acting
as an independent contractor when he repaired the spindle speeder at home and that he was acting
outside the scope of his employment duties when he did so.
First, we agree with the trial court that there was no evidence that defendant was an
independent contractor. Gates had worked for Quality Die for approximately nineteen years: first as a
machinist, then as head of maintenance, then as head of the duplicating department, and finally as plant
superintendent. Jack Boudrie, who was the sole owner and president of Quality Die at the time of
plaintiff’s injury, testified at his deposition that defendant was a salaried employee when he repaired the
spindle speeder and Boudrie hired defendant to be the plant superintendent. Boudrie also testified that,
to the best of his knowledge, defendant was never given separate or additional compensation for fixing
machine parts after normal business hours. Gates also testified that he did not bill Quality Die separately
for repairing the spindle speeder.
Plaintiff has presented no evidence that defendant was an independent contractor when he
repaired the spindle speeder at his home. See Nichol v Billot, 406 Mich 284, 293-297; 279 NW2d
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761 (1979). Thus, the trial court correctly found that plaintiff failed to present any evidence raising a
genuine issue of material fact with regard to whether defendant was acting as an independent contractor.
Plaintiff also contends that he and defendant were not coemployees because defendant was
acting outside the scope of his employment when he repaired the spindle speeder at his home.
However, the record evidence supports the trial court’s finding that defendant’s actions were within the
scope of his employment. Defendant testified that before he became plant superintendent, he held the
position of head of maintenance at Quality Die. Further, defendant testified that as plant superintendent,
he continued to make minor repairs to machines. Boudrie testified that given defendant’s experience
and training in machine maintenance, he was not surprised that defendant took the spindle speeder home
to repair it, and that it was within his discretion as plant superintendent to do so. Boudrie also testified
that it was defendant’s job to do whatever was necessary to “make sure that the plant kept running, and
that the equipment . . . kept running also.” The mere fact that defendant took the spindle speeder home
to repair it does not take the action outside of defendant’s scope of employment. See Fidelity &
Casualty Co of New York v DeShone, 384 Mich 686, 692; 187 NW2d 215 (1971) (to be in the
course of employment, employees are not required to do only those acts that are part of their assigned
work).
Plaintiff presented no evidence sufficient to raise a genuine issue of material fact about whether
defendant was acting within the scope of his employment when he took the spindle speeder home to
repair it. Therefore, the trial court did not err in finding that there was no factual dispute regarding
whether defendant was acting within the scope of his employment because the evidence shows that he
was acting within the scope of his employment.
Affirmed.
/s/ Richard A. Bandstra
/s/ Kathleen Jansen
/s/ William C. Whitbeck
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