SCHWARTZ v. GOLDEN — Summary of Opinion (Michigan Court of Appeals, July 6, 1983)

Factual and Procedural Background

This action arose from an assault and battery. After a jury trial in district court, a verdict was returned for plaintiff in the amount of $15,000. Defendant appealed to the circuit court, but that appeal was dismissed for failure to file an appeal bond. The Michigan Court of Appeals granted defendant's application for leave to appeal. The Court of Appeals found that the circuit court erred in dismissing defendant's appeal and proceeded to resolve the substantive issue defendant sought to raise in circuit court.

Legal Issues Presented

Whether an action against a coemployee for personal injuries is barred under MCL 418.827(1); MSA 17.237(827)(1) if both employees were acting in the course of their employment at the time the injury occurred.
Whether issues concerning injuries and whether they arose out of and in the course of employment must be initially submitted to the Bureau of Workers' Disability Compensation for determination as to jurisdiction and liability.
Whether, on the facts of this case (an assault arising from a dispute between two furniture salespersons over who would wait on a customer), the defendant was acting in the course of his employment when he committed the assault.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Wright v Fields, 412 Mich. 227; 313 N.W.2d 902 (1981)	Reversal of dismissal of an appeal for failure to file an appeal bond (cited for error in dismissing the circuit court appeal).	Applied to conclude the circuit court erred in dismissing defendant's appeal.
Helmic v Paine, 369 Mich. 114, 119-120; 119 N.W.2d 574 (1963)	That an action against a coemployee for personal injuries is barred if both employees were acting in the course of their employment (interpretation of statutory exclusivity).	Used to state the statutory bar on coemployee actions when both act in course of employment.
Fidelity Casualty Co of New York v DeShone, 384 Mich. 686, 690-691; 187 N.W.2d 215 (1971)	Principle concerning when a coemployee action is barred under workers' compensation exclusivity.	Supported the proposition that coemployee suits are barred when both were acting in the course of employment.
Szydlowski v General Motors Corp, 397 Mich. 356; 245 N.W.2d 26 (1976)	Issues of whether injuries arose out of and in the course of employment must be submitted initially to the Bureau of Workers' Disability Compensation.	Used to state that jurisdictional and liability questions of this nature are for the bureau initially.
Herman v Theis, 10 Mich. App. 684; 160 N.W.2d 365 (1968)	Same bureau-submission principle regarding course-of-employment issues.	Included among cases establishing initial submission to the bureau.
Bednarski v General Motors Corp, 88 Mich. App. 482; 276 N.W.2d 624 (1979)	Procedural remedy analogous to remanding to the bureau and holding the court proceeding in abeyance.	Applied as authority for the remedy fashioned by the Court (remand with instructions to seek bureau determination).
Dixon v Sype, 92 Mich. App. 144; 284 N.W.2d 514 (1979)	Illustrates that actions against coemployees turning on whether plaintiff was acting in course of employment should be submitted to the bureau.	Compared and cited in support of requiring bureau determination when plaintiff's course-of-employment is at issue; also cited for analogous remedy.
Sewell v Bathey Mfg Co, 103 Mich. App. 732; 303 N.W.2d 876 (1981)	Support for bureau's initial jurisdiction over course-of-employment issues.	Included among cases stating initial submission to the bureau is required.
Johnson v Arby's, Inc, 116 Mich. App. 425; 323 N.W.2d 427 (1982)	Distinction that whether plaintiff was acting in the course of employment is within the bureau's exclusive jurisdiction; example of cases where defendant's employment status was the key issue for circuit court jurisdiction.	Used to illustrate the distinction between plaintiff-acting issues (for bureau) and defendant-acting issues (sometimes for circuit court); cited as an example and as authority for the remedial approach.
Houghtaling v Chapman, 119 Mich. App. 828; 327 N.W.2d 375 (1982)	An action against a coemployee which turned on whether plaintiff was acting in the course of his employment.	Cited as a similar case and as authority for the remedial procedure applied here.
Panagos v North Detroit General Hospital, 35 Mich. App. 554; 192 N.W.2d 542 (1971)	Example of a case in which employment was clearly unrelated to the cause of action and which may be commenced in circuit court without initial bureau determination.	Used as a comparison to identify circumstances in which the bureau's initial jurisdiction is not required.
Neal v Roura Iron Works, Inc, 66 Mich. App. 273; 238 N.W.2d 837 (1975)	Contrasted with Panagos to show differing outcomes on whether a case must be submitted to the bureau.	Compared with Panagos to illustrate the boundary of bureau jurisdiction.
Herndon v UAW Local No 3, 56 Mich. App. 435; 224 N.W.2d 334 (1974)	Example of a case in which the key issue was whether defendant was acting in the course of his employment and thus treated as within circuit court jurisdiction.	Used to illustrate the distinction between plaintiff-acting and defendant-acting issues and when circuit court jurisdiction has been recognized.
Crilly v Ballou, 353 Mich. 303, 326-327; 91 N.W.2d 493 (1958)	Holds that purely personal, non-work-connected disputes and intentional wilful misconduct are outside the course of employment, while "horseplay" and assaults resulting from workplace stresses may be within the course of employment.	Applied to determine that not every assault is outside the course of employment and to analyze whether the assault in this case arose from workplace stresses.

Court's Reasoning and Analysis

The Court first concluded that the circuit court erred in dismissing defendant's appeal for failure to file bond, citing Wright v Fields. The Court then, in the interest of judicial economy, proceeded to resolve the substantive issue defendant sought to raise: whether the action against a coemployee is barred because the defendant was acting in the course of his employment.

The Court explained the governing legal framework: under MCL 418.827(1); MSA 17.237(827)(1) and controlling cases (Helmic v Paine; Fidelity Casualty Co of New York v DeShone), an action against a coemployee is barred if both employees were acting in the course of their employment. The Court also summarized controlling precedent that issues concerning whether injuries arose out of and in the course of employment must be initially submitted to the Bureau of Workers' Disability Compensation for determination of jurisdiction and liability (Szydlowski and a series of Michigan appellate decisions).

The Court addressed the boundary between matters that must first go to the bureau and those properly brought in circuit court: only cases where employment is clearly unrelated to the cause of action may bypass initial bureau determination (Panagos v North Detroit General Hospital contrasted with Neal v Roura Iron Works). The Court distinguished cases turning on whether the plaintiff was acting in the course of employment (which have been treated as bureau matters) from cases where the key issue was whether the defendant was acting in the course of employment (which have been treated as within circuit court jurisdiction in some decisions such as Herndon and Johnson v Arby's).

The Court then applied the Crilly v Ballou principle that not every assault is outside the course of employment — disputes arising from workplace stresses, tensions, and associations can place an assault within the course of employment, whereas purely personal, non-work-connected disputes of gross intentional misconduct may not. On the facts here — both parties were commission-paid furniture salespersons and the assault resulted from a dispute over which of them would wait on a particular customer — the Court determined the assault "resulted from the stresses, tensions, and associations of the working environment," and that the defendant was acting in the course of his employment when he committed the assault.

Recognizing that plaintiff could still recover if it were determined that he was not acting in the course of his employment when assaulted, the Court concluded it could not say plaintiff was clearly outside the course of his employment so as to fall within the Panagos exception. Accordingly, the Court fashioned a remedial procedure analogous to prior cases (Bednarski; Dixon; Johnson; Houghtaling): remand to the district court with instructions that plaintiff seek a bureau determination within a specified time, and directions to the district court to hold the case in abeyance pending the bureau decision if an application is timely filed.

The Court set explicit conditional outcomes based on the bureau's determination or plaintiff's failure to act: if the bureau finds plaintiff was acting in the course of his employment, or if plaintiff fails to file an application within 30 days, the district court's decision is reversed; if the bureau finds plaintiff was not acting in the course of his employment, the district court's decision is affirmed. The Court remanded for further proceedings consistent with these instructions and retained no jurisdiction.

Holding and Implications

Holding: The Court remanded the case to the district court with instructions that plaintiff, within 30 days of the release of the opinion, file an application for a hearing with the Bureau of Workers' Disability Compensation. If such an application is timely filed, the district court shall hold the case in abeyance pending the bureau's decision. If the bureau finds that plaintiff was acting in the course of his employment when the injury occurred, or if plaintiff fails to file an application within 30 days, the district court's decision is reversed. If the bureau finds that plaintiff was not acting in the course of his employment when the injury occurred, the district court's decision is affirmed. The Court remanded for further proceedings and retained no jurisdiction.

Implications: The direct effect is to require an initial administrative determination by the bureau on the question whether the injury arose out of and in the course of employment before final adjudication in court when that issue is not clearly outside the scope of employment. The opinion does not announce broader new precedent beyond applying existing authorities and does not discuss other broader implications; it prescribes a specific procedural remedy and conditional disposition for this case.

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SCHWARTZ v GOLDEN

MacKENZIE, J.

In this action for assault and battery, after a jury trial in district court, a verdict was returned for plaintiff in the amount of $15,000. Defendant's appeal to circuit court was dismissed for failure to file an appeal bond, and this Court granted defendant's application for leave to appeal.

The circuit court erred in dismissing defendant's appeal. Wright v Fields, 412 Mich. 227; 313 N.W.2d 902 (1981). However, in the interests of judicial economy, we will resolve the issue defendant sought to raise in circuit court.

An action against a coemployee for personal injuries is barred if both employees were acting in the course of their employment at the time the injury occurred. MCL 418.827(1); MSA 17.237(827)(1); Helmic v Paine, 369 Mich. 114, 119-120; 119 N.W.2d 574 (1963); Fidelity Casualty Co of New York v DeShone, 384 Mich. 686, 690-691; 187 N.W.2d 215 (1971). Issues concerning injuries and whether they arose out of and in the course of employment must be initially submitted to the Bureau of Workers' Disability Compensation for determination as to jurisdiction and liability. Szydlowski v General Motors Corp, 397 Mich. 356; 245 N.W.2d 26 (1976); Herman v Theis, 10 Mich. App. 684; 160 N.W.2d 365 (1968); Bednarski v General Motors Corp, 88 Mich. App. 482; 276 N.W.2d 624 (1979); Dixon v Sype, 92 Mich. App. 144; 284 N.W.2d 514 (1979); Sewell v Bathey Mfg Co, 103 Mich. App. 732; 303 N.W.2d 876 (1981); Johnson v Arby's, Inc, 116 Mich. App. 425; 323 N.W.2d 427 (1982); Houghtaling v Chapman, 119 Mich. App. 828; 327 N.W.2d 375 (1982).

Only cases in which employment is clearly unrelated to the cause of action may be commenced in circuit court without an initial determination by the bureau. Compare Panagos v North Detroit General Hospital, 35 Mich. App. 554; 192 N.W.2d 542 (1971), with Neal v Roura Iron Works, Inc, 66 Mich. App. 273; 238 N.W.2d 837 (1975). It should be noted that Dixon v Sype, supra, and Houghtaling v Chapman, supra, were actions against coemployees which turned on whether plaintiff was acting in the course of his employment. Cases in which the key issue was whether defendant was acting in the course of his employment have been treated as within the jurisdiction of the circuit court. See Herndon v UAW Local No 3, 56 Mich. App. 435; 224 N.W.2d 334 (1974), and Johnson v Arby's, supra. The latter case provides a particularly striking example of this distinction, because the Johnson Court, in disposing of plaintiff's claim against his employer, recognized that whether plaintiff was acting in the course of his employment was an issue within the bureau's exclusive jurisdiction. The distinction is justified because, in view of MCL 418.827(1); MSA 17.237(827)(1), whether defendant was acting in the course of his employment is irrelevant to whether plaintiff can obtain workers' compensation benefits.

Not every assault is outside the course of employment. In Crilly v Ballou, 353 Mich. 303, 326-327; 91 N.W.2d 493 (1958), the Court held that purely personal, non-work-connected, disputes and acts of such gross and reprehensible nature as to constitute intentional and wilful misconduct were outside the course of employment but that "horseplay" and assaults resulting from the stresses, tensions, and associations of the working environment, human and material, were within the course of employment. Here, plaintiff and defendant were furniture salespersons and were paid on a commission basis. It was undisputed that the assault and battery resulted from a dispute between plaintiff and defendant as to which of them would wait on a particular customer. Therefore, the assault and battery committed by defendant resulted from the stresses, tensions, and associations of the working environment, and defendant was acting in the course of his employment when he committed the assault. Compare Herndon v UAW Local No 3, supra, in which the assault resulted from a labor dispute.

Plaintiff could still recover if it was determined that he was not acting in the course of his employment when assaulted. However, in view of Crilly v Ballou, supra, it cannot be said that plaintiff was so clearly outside the course of his employment when assaulted as to fall within the exception stated in Panagos v North Detroit General Hospital, supra. We therefore apply a remedy analogous to that applied in Bednarski v General Motors, supra, p 487; Dixon v Sype, supra, pp 149-150; Johnson v Arby's, supra, pp 431-432, and Houghtaling v Chapman, supra, p 832. We remand this case to district court. Plaintiff shall, within 30 days of the release date of this opinion, file an application for a hearing on the question in controversy with the bureau. If such an application is timely filed, the district court shall hold this case in abeyance pending the bureau's decision. If the bureau finds that plaintiff was acting in the course of his employment at the time the injury occurred or if plaintiff fails to file an application with the bureau within 30 days, the district court's decision is reversed. If the bureau finds that plaintiff was not acting in the course of his employment at the time the injury occurred, the district court's decision is affirmed.

Remanded for further proceedings consistent with this opinion. We retain no jurisdiction.

SCHWARTZ v. GOLDEN