CHESTER v. WORLD FOOTBALL
LEAGUE
75 Mich. App. 455, 255 N.W.2d
643 (1977)
V.J. BRENNAN, J. On September 27, 1974, plaintiffs Albert and Ardis
Chester brought suit against defendants jointly and severally for injuries
arising out of a dispute over wages between defendant Wyche and plaintiff
Albert Chester while Chester was controller for defendant Detroit Wheels
[hereafter Wheels]. Defendant World ) Football League [hereafter League] was
joined as alleged co-employer of defendant Wyche. Motion for summary judgment
was filed by defendants and granted by Wayne County Circuit judge Benjamin D.
Burdick on January 30, 1976. He found the claim against Wyche and the Wheels
was barred by the exclusive remedy provisions of the Workmen's Compensation
Act. He found for the League on the same basis or, alternatively, because Wyche
acted outside the scope of any possible agency with the League. Plaintiffs
appeal as of right.
The incident giving rise to this litigation occurred on September 20,
1974. Plaintiff had been employed as controller of the Wheels through Kelly
Services, Inc [hereafter Kelly]. Part of the arrangement meant that the Wheels
would pay Kelly and Kelly would then pay plaintiff. However, plaintiff's
deposition indicated that Kelly maintained no control over his time, duties or
conduct with the Wheels.
Plaintiff had been working for the Wheels since July, 1974. Prior to
September 20, 1974, the Wheels became insolvent and unable to meet their
payroll. Thereupon, the League seems to have agreed to pay Wyche's salary.
The last paycheck Wyche received on September 20, 1974, came from the
League.
On September 20, 1974, plaintiff was working at the offices of the
Wheels. Wyche and some other football players entered and engaged plaintiff in
discussion about back pay due the players. The conversation became heated and
Wyche grabbed plaintiff by the arm, plaintiff claiming he was thereby injured.
Plaintiff first contends that the trial court erred by granting summary
judgment for defendant Wheels. Plaintiff maintains that he was not, as a matter
of law, an employee of defendant Wheels on September 20, 1974, and so was not
precluded from bringing suit against them by the exclusive remedy provisions of
the Workmen's Compensation Act.
Viewing the facts most favorably to plaintiff, we must disagree. Under
the act, an employee is entitled to
compensation if he receives a personal injury, arising out of and in the
course of his employment by an employer coverage by the act. In this case,
there is no dispute that Chester was injured in the a course of his employment
or that the Wheels were an employer covered by the act. What we must decide is
the legal question of whether plaintiff was an employee of the Wheels within
the meaning of the act.
The device used in Michigan to determine the existence of an employment
relationship is the "economic reality" test. Generally, four factors
are isolated: control, payment of wages, the right to hire and fire, and the
right to discipline.
Applying these factors to this case, we believe plaintiff was an employee of
the Wheels.
The plaintiff in this case styles himself an independent contractor,
removed from the control normally associated with an employee status. We see no
distinction between the function plaintiff performed for the Wheels and similar
high-level employees in other businesses who may have some control over the
time, hours or duties of their employment. We believe summary judgment was
properly granted in favor of defendant Wheels.
Plaintiff next argues that the trial court erred by granting summary
judgment to defendant Wyche. He alleges that Wyche was not, as a matter of law,
an employee of the Wheels on September 20, 1974, and so would not be protected
by the exclusive remedy provisions of the Workmen's Compensation Act. We
disagree.
We have determined that plaintiff was an employee of defendant Wheels
for purposes of the Workmen's Compensation Act. We also recognize that
defendant Wyche was an employee of the Wheels and that the act will bar suit
against co-employees for injuries compensatable under the act. This bar
operates where the injury occurs in the regular course of employment.
Therefore, the question we must decide is whether this incident developed within
the course of their employment.
We find authority for the position that "injuries received in
assault, either sportive or malicious, are not, by reason of such fact alone,
beyond the realm of compensability". We do not believe even a favorable
interpretation of the facts indicate defendant Wyche's assault "so gross
and reprehensible . . . as to constitute intentional and willful conduct".
We feel the broad construction necessary and desirable for this provision
justifies finding the assault within the course of the parties' employment. We
perceive the incident as arising spontaneously from employee Wyche's attempt to
collect salary from employee Chester. We find no error in granting summary
judgment for defendant.
Plaintiff's second amended complaint against the WFL asserted two
separate theories of recovery. First, plaintiffs contended that the WFL was
vicariously liable for Wyche's battery under the doctrine of respondeat
superior. The second theory of liability articulated by plaintiff was that the
WFL was negligent, among other reasons, in keeping Wyche, a man purportedly of
known violent propensities, within the WFL organization, provoking Wyche to
violence by failing to act to satisfy his grievances and failing to act to prevent
those grievances from arising.
(The Court held that there was no respondeat superior liability because Wyche
was not an agent of the League ? However, the court held that the League
might be liable under the second theory and thus reversed the trial
court’s summary judgment for the WFL.)