Bitar v. Wakim
Bitar v. Wakim
Opinion of the Court
This case arises out of a slip and fall accident. The plaintiff, Ms. Fauzie Bitax, was working for Beirut Bakeiy, Inc. Beirut Bakery, Inc., is a Michigan corporation whose stock is solely owned by the defendant, Mr. Iskandar Wakim. At the time of the accident, Mr. Wakim also personally owned the property where the bakery was located and leased the property to the bakery.
On the night of December 23, 1991, Ms. Bitar was taking trash out of the bakery to a dumpster at the rear of the property. As she was walking across the property, she slipped and injured her ankle. Ms. Bitar applied for, and received, worker’s compensation benefits under the bakery’s insurance policy. Ms. Bitar then sued Mr. Wakim personally, claiming that accumulated ice and snow in the parking lot had caused her fall.
Mr. Wakim moved for summary disposition in circuit court asserting the exclusive remedy provision of the Worker’s Disability Compensation Act. MCL 418.131; MSA 17.237(131). Mr. Wakim’s motion was granted. Ms. Bitar then appealed to the Court of Appeals, which affirmed the trial court. 211 Mich App 617; 536 NW2d 583 (1995). The Court of Appeals found that Mr. Wakim was entitled to a “reverse piercing” of the corporate veil. Id. at 621-622. Accordingly, Mr. Wakim and Beirut Bakery, Inc., were regarded as the same entity, and both were entitled to rely upon the exclusive remedy provision. Id. at 622. The Court of Appeals also found that the plaintiff could not sue Mr. Wakim under a dual capacity theory. Id. at 624.
I. PIERCING OF THE CORPORATE VEIL
It is clear that a shareholder is a separate legal entity from the corporation. Bourne v Muskegon Circuit Judge, 327 Mich 175, 191; 41 NW2d 515 (1950). This is true even when the corporation’s stock is owned by one individual. Id.] see also Bill Kettlewell Excavating, Inc v St Clair Co Health Dep’t, 187 Mich App 633, 639; 468 NW2d 326 (1991). As a general principle, this separation of identities is to be respected. Wells v Firestone Tire & Rubber Co, 421 Mich 641, 650; 364 NW2d 670 (1984).
However, the corporate structure will be disregarded when the equities are compelling. Id. at 651. In such cases, the corporate veil is “pierced” and the shareholders are held liable for the acts of the company. Courts will grant this remedy where honoring the corporate structure would subvert justice or perpetuate fraud. Wells at 650; Klager v Robert Meyer Co, 415 Mich 402, 411; 329 NW2d 721 (1982), United Armenian Brethren Evangelical Church v Kazanjian, 322 Mich 651, 658; 34 NW2d 510 (1948). This decision is based on a consideration of the facts and equities of the case. Klager, supra at 411.
Normally, a plaintiff seeks to avoid the corporate structure to force a shareholder to accept responsibil
The Court made a similar finding in Pettaway v McConaghy, 367 Mich 651; 116 NW2d 789 (1962). In that case, the defendant was the majority stockholder and director of a corporation that had employed the plaintiff. Id. at 652-653. The plaintiff alleged that the defendant’s modifications to a machine had resulted in injuries to the plaintiff. Id. at 653. The Court found there to be “such a complete identity between the defendant and the corporation as to suggest that one was simply the alter ego of the other.” Id. at 654. The Court then stated that the plaintiff’s suit would be
n. application
We find that the equities of this case do not require the application of Wells and Pettaway. Unlike Wells, and the cases following it,
The equities of this case do not merit a reverse piercing of Beirut Bakery’s corporate veil. First, Mr. Wakim chose to maintain the property in his own
Moreover, a reverse piercing of Beirut Bakery’s corporate veil is not required to prevent injustice. Ms. Bitar injured herself on property owned by a legal entity that was not her employer. Thus, she can bring a lawsuit against the owner of that property without violating the exclusive remedy provision of the Worker’s Disability Compensation Act. See 6 Larson, Workers’ Compensation, § 72.81(b), pp 14-290.93 to 14-290.94. The act prevents Ms. Bitar from filing a tort action against her employer because she is entitled to worker’s compensation benefits. However, it does not bar a premises liability action against a third party. Thus, neither the policies of the act, nor the interests of justice, require that Mr. Wakim be allowed to escape suit merely because he is the majority shareholder of Ms. Bitar’s employer.
in. CONCLUSION
Because Mr. Wakim is not to be viewed as Bitar’s employer, we do not need to reach Mr. Wakim’s defense under the dual capacity doctrine. Further, we note that the Michigan Self-Insurers’ Association, as amicus curiae, argued that subsection 827(1) of the act provides Mr. Wakim with a defense in this case, even if he is not found to be Ms. Bitar’s employer. However, this issue was not adequately developed by
Mr. Wakim and the Beirut Bakery were separate legal entities at the time of Ms. Bitar’s fall. As the employer, the bakery should not be sued because of the exclusive remedy provision. However, the Court of Appeals erred when it allowed Mr. Wakim to use this provision to protect himself from suit as the premises owner. Therefore, we would reverse the Court of Appeals and would remand this case for further proceedings.
See, for example, Nardi v American Motors Corp, 156 Mich App 275; 401 NW2d 348 (1986). In cases involving a parent-subsidiary corporate structure, an economic realities test is used to determine which entity, or both, is the employer under the Worker’s Disability Compensation Act. We agree with the parties that this test does not apply to the case currently before the Court.
In view of the interest of the parties in the dual capacity doctrine, the parties were directed to file supplemental briefs on the question whether plaintiff-appellant’s suit is barred by MCL 418.827(1); MSA 17.237(827)(1) because defendant is a “natural person in the same employ” as plaintiff. After receipt of the additional briefing, the Court concluded that it should not depart from the well-established rule that issues not presented to the trial court or the Court of Appeals are not preserved for review by this Court.
Dissenting Opinion
I respectfully dissent. I would decline to address the issue whether the trial court erred in reverse piercing of the corporate veil because, even if we accept the plaintiff’s argument on that issue, her suit would still be barred by MCL 418.827(1); MSA 17.237(827)(1).
Subsection 827(1) of the Worker’s Disability Compensation Act states, in 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 .... [MCL 418.827(1); MSA 17.237(827)(1) (emphasis added).]
The negative implication of this subsection is that a worker who receives worker’s compensation benefits may not sue “a natural person in the same employ or the employer” for work-related injuries, and Michigan courts have consistently interpreted this provision in that manner. Welch, Worker’s Compensation in Michigan: Law & Practice (3d ed), § 5.8, pp 5-11 to 5-14. Farrell v Dearborn Mfg Co, 416 Mich 267, 283; 330 NW2d 267 (1982); Pettaway v McConaghy, 367 Mich 651, 654-655; 116 NW2d 789 (1962).
In fact, Pettaway is similar to the present case. In Pettaway, the defendant was the sole shareholder and president of American Asbestos Products, Co. The plaintiff was injured at work, received worker’s compensation benefits, and then sued the defendant individually for negligence. This Court unanimously held that the suit was barred by the precursor of § 827.
The lead opinion declines to address this argument, stating that it was not developed by the lower court or the parties. I do not believe that this is accurate. The argument is presented in the defendant’s brief to this Court, and is clearly presented by both amici curiae Michigan Defense Trial Counsel and Michigan Self-Insurers’ Association. Furthermore, this Court has the authority to decide cases on grounds not
On July 31, 1997, this Court directed the parties to brief whether plaintiff’s suit was barred by § 827. 568 NW2d 87. When this order was entered, this Court was well aware that this issue had not been presented to the lower courts. Nevertheless, the order was entered. Now, after the parties have incurred the expense of researching and preparing the requested supplemental briefs, the lead opinion declines to consider the very issue for which it ordered supplemental briefs.
In Peterman v Dep’t of Natural Resources, 446 Mich 177, 183; 521 NW2d 499 (1994), this Court stated “absent unusual circumstances, issues not raised at trial may not be raised on appeal.” This Court’s ordering of supplemental briefs certainly satisfies the unusual circumstance prerequisite. Under such circumstances, this Court should address § 827.
My reading of the record and the law suggests there are no relevant facts left to be developed. A remand would merely prolong litigation and potentially waste judicial resources.
At oral argument, plaintiff’s attorney again acknowledged that Wakim is the president of Beirut Bakery, Inc.
The precursor of § 827 was previously codified at MCL 413.15; MSA 17.189. The language was not changed.
Concurring Opinion
(concurring). I concur with the result reached by the lead opinion in this case. I write separately, however, to note that the outcome may have been different had the defendant raised the coemployee issue in the courts below.
Justice Brickley is correct to point out, in footnote 2, that failure to present or adequately brief an issue in the trial court or the Court of Appeals prohibits review by this Court because the issue is not preserved and, hence, forever barred. See Lawrence v Darrah & Associates, 445 Mich 1, 4, n 2; 516 NW2d 43 (1994).
Because the coemployee issue was not preserved for this Court’s review, I agree with the lead opinion
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