The Michigan Court of Appeals issued its opinion in a case I briefed (92675_Moore_Appellant’s_Brief_3134220.127.116.113.1838) and argued in the Court of Appeals last summer, ruling consistent with the Supreme Court’s recent disposition of workers compensation insurance coverage for subcontractors holding themselves out to be employers, while claiming to be employees.
The facts involved a workers compensation claimant who was hired to do a four-hour roofing job by the putative “employer”. The claimant ran an independent roofing business, had other workers doing roofing work at another location, purchased workers compensation insurance, and otherwise held himself out to be a roofer doing roofing work. He injured his foot while performing the four-hour job and sought workers compensation benefits from the company that had hired him to do that job. Several iterations of a decision were rendered by the workers compensation board and the appellate commission. The Court of Appeals granted my application for leave to appeal, and then, plaintiff’s cross-application on a wage-loss calculation issue (a very interesting issue in its own right but which is likely rendered moot by this finding that the claimant was not in fact an employee).
The coverage case involved several underlying insurance companies potentially covering the claim depending on the employment status of the claimant. What is remarkable, among other interesting procedural twists and turns, is that two Judges on the panel I argued the case before were on opposite sides of the underlying issue in a Court of Appeals conflict panel opinion issued after the Court of Appeals convened a special conflict panel to address whether the language of MCL 418.161(1)(n) (pre-2011 amendments) was conjunctive or disjunctive, requiring satisfaction of all or only one of the “elements” listed to remove or, divest, a claimant of “employee” status under the Workers Disability Compensation Act.
That conflict panel decision by the Court of Appeals actually ruled against the arguments I forwarded in my brief, but as I predicted in the brief, and at oral argument, the Supreme Court was considering the conflict panel’s decision and was likely to overrule it, which they did, as I explained in this post: Supreme Court Overrules Court of Appeals Decision Defining Employees for Purposes of Workers Compensation Entitlement
Thus, at oral argument, I made a full frontal assault on the conflict panel’s decision reading the statutory language as conjunctive (much to the satisfaction of Judge Borrello, who the Supreme Court ultimately sided with), and, as well, in my arguments section of the brief.
The Court also used my argument to counter the Appellate Commission’s unique (if not strained) reading of the meaning of the introductory phrase of the statute “in relation to this service” (my emphasis). In its decision, the appellate commission reasoned that the phrase contained in MCL 418.161(1)(n) referred not to roofing in general, but roofing on behalf of the putative employer. The Commission had stated that plaintiff did not maintain a separate business of roofing for this employer, nor was he hired by this employer in his capacity as a roofing contractor with a crew of workers. Rather, the Commission had stated plaintiff was hired by the putative employer as an individual worker.
As I argued in my brief, this reasoning was flawed because the statutory phrase “in relation to this service” refers to roofing in general. And, the Court of Appeals cites to the case I referred to, Reed v. Yackell, 473 Mich 520, 537 (2005), in which the Supreme Court had used the precise example factually relevant in this case, to wit, a roofer doing roofing work! In other words, the Court of Appeals went on to reason, the phrase “in relation to this service” refers to the type of services performed, not the identity of the party receiving the services.
It was one of the more active panels that I have been before and they were extremely engaged in the issue and the outcome. Read the decision here: Moore Opinion
If you have any questions about this case and its impact on general liability and workers’ compensation insurance coverage determinations please call Carson J. Tucker, (734) 218-3605.