JUSTIN OVERLEY SSN: XXX-XX-XXXX, Plaintiff,
v.
J. STEVENS CONSTRUCTION, INC and MICHIGAN INSURANCE COMPANY, QUANDEL CONSTRUCTION COMPANY and ZURICH AMERICAN INSURANCE CO, MUSKEGON ROOFING COMPANY, Uninsured, WOLF LAKE CONSTRUCTION COMPANY, Uninsured, JONATHAN M. ALVIAR, Uninsured, RAUL C. ALVIAR, Uninsured and WILLIAM A. BLUHM, Uninsured, Defendants,
and
J. STEVENS CONSTRUCTION COMPANY and MICHIGAN INSURANCE COMPANY, Form-C Petitioners,
v.
GLYNN ROOFING, Uninsured, MICHAEL ALLEN GLYNN, Uninsured and T & M TREE SERVICE, Uninsured. Form-C Respondents.
No. 7323
Michigan Workers Compensation
State of Michigan Department of Licensing and Regulatory Affairs Michigan Administrative Hearings System Board of Magistrates
August 12, 2019
The
social security number and dates of birth have been redacted
from this opinion.
Plaintiff – Joel A. Alpert (P27352)
Defendants – J. Stevens Construction and Michigan
Insurance Company – John L. Ruedisueli (P41164)
Defendants – Quandel Construction Co. and Zurich
American Insurance –Mark C. White (P55051)
All
other Defendants and Form–C Respondents – None
OPINION & ORDER
David
H. Williams, Magistrate (253 G) Judge.
TRIAL
DATE(S):
Trial
in this matter began on December 6, 2018. It continued
December 7, 2018 and January 11, 2019 It was scheduled to
resume on January 31, 2019 however due to closure of the
State offices, did not proceed, being adjourned until March
4, 2019 which was adjourned again for medical reasons
involving one of defense witnesses. Testimony and admission
of evidence was completed March 22, 2019. The parties
submitted Trial Briefs by May 17, 2019 at which point the
case was submitted for decision.
CLAIM:
This
case has a rather extensive and convoluted procedural history
up to the point at which it was ready for and proceeded to
trial. There were numerous and varied Applications for
Hearing-Form A filed by Plaintiff against multiple entities
and individuals. A good many of those were ultimately
dismissed along the way prior to trial. Suffice it to say
that even at that point there remained numerous defendants,
only two of which had workers’ compensation insurance
coverage, while the others, including the Form–C
Respondents, were uninsured. None of those named entities or
individuals personally appeared at trial or retained legal
counsel to represent their respective interests in these
proceedings.
The
initial Application for Mediation or Hearing–Form A
(“AFH-A”) was filed on October 26, 2015 and which
named J. Stevens Construction as a “statutory
employer”. Shortly thereafter, on November 12, 2015
additional AFHs-A were filed naming Muskegon Roofing Company,
West Michigan Roofing, Raoul Alvarez and St. Joseph Mercy
Health System on the same basis. Amended Applications for
Mediation or Hearing–Form A were filed against all of
the above-named parties on January 4, 2016, without reference
to the same being statutory employers. Still later, on
January 19, 2016 additional “Amended”
Applications for Hearing-Form A were filed naming 3 more
defendants: Trinity Senior Living Center, Marycrest Manor and
Quandel Construction under the statutory employment theory.
Wolf Lake Construction Co., LLC was also added to the
ever-growing list of defendants about this same time by way
of another AFH-A file by Plaintiff on January 28, 2016. An
additional AFH-A was filed against St. Joseph Mercy Health
System on February 24, 2016 which did not reference said
entity as a statutory employer. Another AFH-A was filed by
Plaintiff on July 22, 2106 which named “Raul
Alvira” as a defendant-employer. Trinity Continuing
Care Services was then brought into the case via yet one more
AFH-A filed on August 15, 2016. An Amended AFH-A was filed
against Raul Alvira on October 24, 2016. An additional party,
“Jonathan Alviar” was then brought into the case
pursuant to an AFH-A filed by Plaintiff on December 8, 2016.
About a week later an Application for Mediation of Hearing
– Form C was filed by Quandel Construction seeking a
determination that it “. . . was not an employer of
Justin Overley.” On December 27, 2016 another AFH-A was
filed by Plaintiff naming William A. Bluhm as an employer
from which benefits were being sought. On April 27, 2018 a
further AFH-Form A was filed bringing in the State of
Michigan Second Injury Fund as a party defendant alleging
“Total and Permanent Disability”. On April 30,
2018 Applications for Hearing – Form C were filed by
Defendants J. Stevens Construction and Michigan Insurance
Company adding even more parties to the case. These included:
Glynn Roofing, Michael Allen Glynn, Jr., and T & M Tree
Service under the theory that one or more of them had
“contracted with Justin Overley.”[1]
Numerous
named Defendants were let out of this case prior to the start
of trial. In an Order signed on December 21, 2016 West
Michigan Roofing Company and Auto Owners Insurance Company
were so Dismissed.2 The various Trinity Health related
entities (Trinity Senior Living Center, Trinity Continuing
Care Services, St. Joseph Mercy Health System and Trinity
Health Michigan) were Dismissed by Order signed on January
25, 2018 (mailed February 10, 2018). The same was true with
respect to as Plaintiff’s Application adding the State
of Michigan–Second Injury Fund (Total & Permanent
Disability Provisions) which was also Dismissed shortly prior
to trial by Order signed October 15, 2018 (mailed October 31,
2018).
The
essence of Plaintiff’s claim against the remaining
Defendants was that he was employed by one (or more) of these
entities/individuals when on July 28, 2015 he sustained
severe and permanent injuries due to having fallen off a roof
while working on a construction site in Livonia, Michigan. At
least two (2) of these Defendants were claimed to have
liability as so-called “statutory employers”
inasmuch as other(s) in an allegedly sub-contract type
situation were uninsured for workers’ compensation.
As for
the underlying basis giving rise to the claimed disability
Plaintiff alleged that the consequences of his falling off
the roof resulted in paraplegia and other significant
conditions involving his head, legs, internal injuries,
neurological deficits and so forth. Vocational assistance was
requested. An attorney fee on medical was also sought.
STIPULATIONS:
Only
those parties which appeared via counsel were
“present” for trial proceedings which commenced
on Dec. 6, 2108. Same consisted of three in total: Plaintiff,
Defendants J. Stevens Construction Company/Michigan Insurance
Co. and Quandel Construction/ Zurich American Insurance
Company. They were the only parties involved in the taking of
Stipulations. As mentioned above, neither counsel for nor any
representatives of the remaining Defendants as it related to
Plaintiff’s Applications-Form A and/or
Defendants’ Form C attended or otherwise participated
in these proceedings.
The
extent of matters Stipulated by Plaintiff and the two (2)
above-referenced Defendants, J. Stevens/Michigan Insurance
and Quandel/Zurich-American Insurance, were very limited in
nature. Both left to proof whether they were subject to the
Workers’ Compensation Act on the alleged date of injury
(“DOI”). Both agreed that insurance coverage was
afforded by the above-named carriers. Both denied that the
“alleged” employee Overley was in their employ on
the DOI and left to proofs whether a personal injury arose
out of and in the course of such alleged employment on said
date. The same held true with respect to the issue of whether
the claimed disability was due to the alleged personal
injury.
Notice
was left to proofs, but both Defendants admitted the
Plaintiff’s claim was made within the statutorily
prescribed period. Since employment was denied there were no
stipulations made as it concerned an average weekly wage,
fringe benefits and the like. There was no dual employment
claimed and all agreed that there were no alternative
benefits paid by either Defendant and received by Plaintiff
which would be subject to coordination under WDCA sections
354 or 358; MCL 418.354 and MCL 418.358. It was agreed that
no workers’ compensation benefits were paid. Defendants
agreed to Plaintiff having an IRS filing status of
“single” and left to proofs whether any of his
three (3) claimed minor children were
“dependents”.
EXHIBITS:
Numerous
documents and expert depositions were offered and admitted;
either at the outset of trial or during presentation of
witness testimony (which provided foundation for some to
which objection was initially made, but later cured or the
objection withdrawn) during...
