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STATE OF MICHIGAN
COURT OF APPEALS


GENERAL MOTORS CORPORATION, Plaintiff-Appellee/Cross-Appellant. v ABRAHAM WEBERMAN, MARY HAMILTON, and STALBURG, FISCHER, WEBERMAN & VERROS, P.C. Defendants-Appellants/CrossAppellees.

UNPUBLISHED October 3, 2000

No. 210441 Oakland Circuit Court LC No. 96-532327-CZ

Before: Whitbeck, P.J., and Fitzgerald and Markey, JJ. PER CURIAM. Defendants appeal by right the amended order of judgment entered against them and the order denying defendants Weberman's and Hamilton's motion for mediation sanctions. Plaintiff cross appeals the trial court's amended judgment denying treble damages and attorney fees pursuant to MCL 600.2919a; MSA 27A.2919(1). We affirm. Defendants first argue that the Workers' Disability Compensation Bureau had exclusive jurisdiction over this matter because it involved an overpayment of compensation and the employer employee relationship. We disagree. Whether the circuit court had proper subject matter jurisdiction is a question of law for this Court to decide. Dlaikan v Roodbeen, 206 Mich App 591, 592-593; 522 NW2d 719 (1994); see, also, Jackson Comm College v Michigan Dep't of Treasury, ___ Mich App ___; ___ NW2d ___ (Docket no. 210887, issued 7/14/00), slip op p 3 ("This Court reviews jurisdictional questions de novo."). A question of law is reviewed de novo. Cardinal Mooney High School v Michigan High School Athletic Ass'n, 437 Mich 75, 80; 467 NW2d 21 (1991). MCL 418.841(1); MSA 17.237(841)(1) provides in pertinent part: Any dispute or controversy concerning compensation or other benefits shall be submitted to the bureau and all questions arising under this act shall be determined by the bureau . . . .

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Questions of workers' compensation, compensation procedure, and the remedy for failure to follow that procedure are statutorily established and are to be determined by the bureau. Maglaughlin v Liberty Mutual Ins Co, 82 Mich App 708, 712; 267 NW2d 160 (1978). "A circuit court may have concurrent jurisdiction over certain issues, particularly those involving determination of rights arising out of an entirely different relationship than that of employer-employee." Lulgjuraj v Chrysler Corp, 185 Mich App 539, 545; 463 NW2d 152 (1990). However, the jurisdiction of the bureau is exclusive in matters where the employer-employee relationship is "substantially involved." Id. The case of Panagos v North Detroit Gen'l Hosp, 35 Mich App 554; 192 NW2d 542 (1971), cited by plaintiff, is instructive regarding whether the employer-employee relationship is merely incidental or unrelated to the cause of action. In Panagos, supra at 555, the plaintiff, an employee of the defendant hospital, cut her mouth during lunch on a foreign particle allegedly in a piece of pie that the plaintiff purchased in the hospital's cafeteria. The cut became infected, and the plaintiff allegedly lost teeth as a result of the infection. Id. The plaintiff was disabled from working for about fifteen weeks, during which time defendant voluntarily paid her workers' compensation benefits. Id. After returning to work, the plaintiff commenced a lawsuit against the defendant, claiming negligence and breach of warranty. Id. The defendant claimed that the trial court should have dismissed the matter because the Workers' Compensation Bureau had exclusive jurisdiction over the matter. Id. Finding for the plaintiff, this Court stated that the plaintiff's cause of action had nothing to do with the fact that the plaintiff also happened to be employed by the defendant. Id. at 559. The Court held that the plaintiff did not first have to seek relief from the Workers' Compensation Bureau because it was "clear that the employee employer relationship [was] unrelated to the cause of action." Id. In the present case, we conclude that the employer-employee relationship is not "at the heart" of plaintiff's claim in this matter nor is that relationship "substantially involved" to the extent that the Workers' Disability Compensation Bureau had exclusive jurisdiction. Lulgjuraj, supra. The circuit court was not deprived of jurisdiction in this case because the employer-employee relationship was "only incidentally involved." Modeen v Consumers Power Co, 384 Mich 354, 360-361; 184 NW2d 197 (1971), quoting Bonney v Citizens' Mutual Auto Ins Co, 333 Mich 435, 440; 53 NW2d 321 (1952). As plaintiff accurately states, this is not a "controversy concerning compensation" as provided in MCL 418.841(1); MSA 17.237(841)(1), but rather defendant Weberman's and defendant law firm's retention of a $53,410.17 check erroneously made out to and sent only to the law firm. The funds that were sent to the law firm in error did not represent workers' compensation benefits or attorney fees. Compensation benefits had already been calculated to be $37,507, and defendants had accepted this calculation. Further, after receiving the $37,507 (less attorney fees and costs), defendant Hamilton agreed to accept $105,000 for future compensation benefits in a redemption agreement. Before plaintiff's request for a return of the $53,410.17, there is no indication that any of the defendants believed that defendant Hamilton was entitled to more benefits than what she had already received. In fact, defendant Weberman and the law firm had never released any of these funds to defendant

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Hamilton, nor was she ever informed that such funds existed. Under these circumstances, it is apparent to this Court that the bureau did not have exclusive jurisdiction over this matter1. Further, defendant Hamilton also argues that she was prejudiced and denied due process in this matter. These assertions are without merit. Contrary to defendant Hamilton's assertions, she received the full amount of the workers' compensation benefits she was owed. With respect to the parties' assertion that the bureau itself agreed that it did not have jurisdiction over this matter, we conclude that regardless of why the bureau claimed that it did not have jurisdiction, the circuit court did not err in establishing jurisdiction over this matter. Defendants argue that MCL 418.833(2); MSA 17.237(833)(2) precludes plaintiff from recovering the $53,410.17. We disagree. Statutory interpretation is a question of law that is reviewed de novo on appeal Cardinal Mooney High School, supra at 80; Michigan Automotive Research Corp v Dep't of Treasury (After Remand), 222 Mich App 227, 231; 564 NW2d 503 (1997). MCL 418.833(2); MSA 17.237(833)(2), known as the "one-year back rule," provides: When an employer or carrier takes action to recover overpayment of benefits, no recoupment of money shall be allowed for a period which is more than 1 year prior to the date of taking such action. In the present case, the trial court determined that MCL 418.833(2); MSA 17.237(833)(2) was inapplicable because an overpayment of benefits was not involved. We agree with the trial court's conclusion. As previously stated, the $53,410.17 check was not an overpayment of benefits, but rather an erroneous payment made to defendant law firm. Examining the clear language of the statute, we conclude that the statute is inapplicable because this is not an "action to recover overpayment of benefits." Defendant Hamilton also asserts that even if it is determined that the circuit court has jurisdiction and is not bound by the "one-year back rule," the doctrine of laches should apply in this case and prevent plaintiff from recovering the $53,410.17. Defendant Hamilton asserts that she has been severely prejudiced because she suffered a severe underpayment of workers' compensation benefits. We disagree. Defendant Hamilton was not severely prejudiced in this case. She had already received full benefits, including reduced benefits while benefits were being determined by the bureau and the WCAC, $37,507 (less attorney fees and costs) in 1995, and $105,000 (less attorney fees) as a settlement for future benefits in November, 1995. The November, 1995, agreement was a final settlement for workers' compensation benefits, and Hamilton signed a waiver releasing any further rights to Workers' Compensation benefits.

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We note that unlike the circumstances in Walley v Livonia Fire Dep't , unpublished opinion per curiam of the Court of Appeals, entered June 6, 2000 (Docket No; 210436), the case cited by the parties at oral argument, the present case involved a redemption agreement.

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Defendant Hamilton also asserts that the failure to enforce the one-year back rule would turn the entire Workers' Compensation Act into a meaningless piece of legislation. Defendant has failed to cite any authority to support this assertion; thus, this Court need not address this argument. Weiss v Hodge (After Remand), 223 Mich App 620, 637; 567 NW2d 468 (1997). Defendants Weberman and the law firm argue that under the election of remedies doctrine, plaintiff is prohibited from pursuing its legal and statutory claims of conversion and treble damages under MCL 600.2919a; MSA 27A.2919a because plaintiff has already prevailed on its equitable claim of unjust enrichment. We disagree. Because the election of remedies doctrine is "merely a procedural rule," Riverview Co-op, Inc v The First Nat'l Bank and Trust Co of Michigan, 417 Mich 307, 311; 337 NW2d 225 (1983), this issue presents a question of law that is reviewed de novo. The election of remedies doctrine precludes "one to whom there are available two inconsistent remedies from pursuing both." Id. The purpose of the doctrine is to prevent double recovery for a single injury and not to prevent recourse to alternate remedies. Id. at 312; Jim-Bob, Inc v Mehling, 178 Mich App 71, 91; 443 NW2d 451 (1989). If the wrongs for which the plaintiff seeks redress are separate and consistent, the doctrine of election of remedies does not bar the plaintiff's cause of action. Riverview, supra at 322. Further, a plaintiff may simultaneously pursue all available remedies regardless of legal consistency, as long as the plaintiff is not awarded a double recovery. Jim-Bob, supra at 92, quoting Walraven v Martin, 123 Mich App 342, 348; 333 NW2d 569 (1983). The election of remedies doctrine requires satisfaction of three prerequisites: (1) the existence of two or more remedies; (2) the inconsistency between such remedies; and (3) a choice of one of them. Riverview, supra at 313. The test for inconsistency of remedies is as follows: For one proceeding to be a bar to another for inconsistency, the remedies must proceed from opposite and irreconcilable claims of right and must be so inconsistent that a party could not logically assume to follow one without renouncing the other. Two modes of redress are inconsistent if the assertion of one involves the negation or repudiation of the other. In this sense, inconsistency may arise either because one remedy must allege as fact what the other denies, or because the theory of one must necessarily be repugnant to the other. More particularly, where the election of a remedy assumes the existence of a particular status or relation of the party to the subject matter of litigation, another remedy is inconsistent if, in order to seek it, the party must assume a different and inconsistent status or relation to the subject matter. [Production Finishing Corp v Shields, 158 Mich 479, 494-495; 405 NW2d 171 (1987), quoting 25 Am Jur 2d, Election of Remedies,

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