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STATE OF MICHIGAN
COURT OF APPEALS


CINDIE L. PALMER, Personal Representative of the Estate of MICHAEL W. PALMER, Deceased, Plaintiff-Appellant, v WESLEY INTERNATIONAL, INC., f/k/a BUENA VISTA COATINGS, INC., f/k/a FLINT COATINGS, INC., f/k/a IOWA COATINGS, INC., f/k/a PROKOTE HOLDING, INC., f/k/a PROKOTE USA, INC., f/k/a UNIVERSAL APPLICATORS, INC., WESLEY INDUSTRIES, INC., HAROLD AUBERT, and DELPHI AUTOMOTIVE SYSTEMS USA, LLC, f/k/a DELPHI AUTOMOTIVE SYSTEMS, LLC, Defendants-Appellees.

UNPUBLISHED November 8, 2005

No. 262873 Saginaw Circuit Court LC No. 01-040359-NO

Before: Kelly, P.J., and Meter and Davis, JJ. PER CURIAM. Plaintiff appeals as of right from two separate opinions and orders of the circuit court granting defendants' motions for summary disposition.1 We affirm. This wrongful death action arose out of fatal injuries suffered by plaintiff's decedent while he was employed by defendant Wesley International, Inc. (Wesley) at its Buena Vista, Michigan, plant. Plaintiff's decedent was fatally injured while he was performing maintenance on a rotor-coating machine that was in operation. The trial court granted Wesley's motion for summary disposition under MCR 2.116(C)(10),2 concluding that, because plaintiff's claim was

This Court has ordered the instant appeal closed with regard to Delphi Automotive Systems USA, LLC, due to a pending bankruptcy proceeding. This opinion concerns only the remaining defendants. 2 Wesley's motion was filed under MCR 2.116(C)(7), (8), and (10). Although the trial court did not specifically state under which subsection it was granting the motion, we may assume that it
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based on Wesley's negligence, the claim was barred by the exclusive remedy provision of the Workers' Disability Compensation Act (WDCA). See MCL 418.131. Plaintiff argues that the trial court erred in granting Wesley's motion for summary disposition because she presented sufficient facts to establish that her claim fell within the intentional tort exception to the exclusive remedy provision of the WDCA. Plaintiff contends that she presented the trial court with evidence that Wesley, through its supervisory employee, defendant Harold Aubert, had actual knowledge that injury was certain to occur to plaintiff's decedent and that it willfully disregarded this knowledge. We disagree. We review a trial court's decision with regard to a motion for summary disposition de novo. Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003). Under the WDCA, the right to recover worker's compensation benefits is an employee's exclusive remedy against an employer for a personal injury or occupational disease arising out of or in the course of employment, unless there has been an intentional tort. MCL 418.131; Harris v Vernier, 242 Mich App 306, 310; 617 NW2d 764 (2000). MCL 418.131(1) provides, in part: An intentional tort shall exist only when an employee is injured as a result of a deliberate act of the employer and the employer specifically intended an injury. An employer shall be deemed to have intended to injure if the employer had actual knowledge that an injury was certain to occur and willfully disregarded that knowledge. In Travis v Dreis & Krump Mfg Co, 453 Mich 149, 180; 551 NW2d 132 (1996), our Supreme Court interpreted the relevant statutory language as follows: If we read both sentences of the intentional tort exception together, it becomes evident that an employer must have made a conscious choice to injure an employee and have deliberately acted or failed to act in furtherance of that intent. The second sentence then allows the employer's intent to injure to be inferred if the employer had actual knowledge that an injury was certain to occur, under circumstances indicating deliberate disregard of that knowledge. Further, in Palazzola v Karmazin Products Corp, 223 Mich App 141, 149-150; 565 NW2d 868 (1997), this Court, paraphrasing Travis, explained that when proceeding under the second method for proving an intentional tort

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Michigan Law