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STATE OF MICHIGAN
COURT OF APPEALS


WANDA MONTGOMERY, Plaintiff-Appellee, v BRAD JACOBSON, Defendant-Appellant.

UNPUBLISHED December 20, 1996

No. 183037 LC No. 94-472794-NO

Before: Michael J. Kelly, P.J., and Hood and H.D. Soet*, JJ. PER CURIAM. We granted defendant's application for leave to appeal the trial court's denial of defendant's motions for summary disposition and reconsideration in this premises liability action. We reverse. Plaintiff was injured at defendant's home. Defendant was hosting a "team building" outing, which was initiated, sponsored, and paid for by the parties' employer, Electronic Data Systems, Inc. (EDS). Rather than seek worker's compensation benefits from EDS, plaintiff brought an action in circuit court against defendant. Defendant moved for summary disposition pursuant to MCR 2.116(C)(10) on the ground that there existed no question of fact regarding whether plaintiff's injuries were within the scope of her employment, and therefore her claim fell within the coverage of the Worker's Compensation Disability Act, MCL 418.101 et seq.; MSA 17.237(101) et seq, and the exclusive jurisdiction of the bureau of worker's compensation. The trial court denied this motion and defendant's motion for reconsideration. Because the matter was mediated for less than $10,000, it was remanded to district court. The facts of this case require a determination of whether plaintiff's injury arose out of and in the course of her employment. The Worker's Disability Compensation Act provides the exclusive remedy for co-employee negligence. MCL 418.827; MSA 17.237(827); Travis v Dreis & Krump Mfg Co, 453 Mich 149, 189; ___ NW2d ___ (1996). Circuit courts have no jurisdiction to determine whether a defendant was the plaintiff's employer or co-employee and thus able to invoke the exclusive remedy provision. Sewell v Clearing Machine Corp, 419 Mich 56, 62; 347 NW2d 447 (1984). However, * Circuit judge, sitting on the Court of Appeals by assignment. -1

once it is determined that the plaintiff was an employee or co-employee of the defendant, the bureau of worker's compensation has exclusive jurisdiction to decide whether injuries suffered by an employee arose out of and in the course of employment. MCL 418.841(1); MSA 17.237(841)(1); Szydlowski v General Motors Corp, 397 Mich 356, 359; 245 NW2d 26 (1976). Morever, as this Court has instructed: "[A]s a general rule the question whether an injury arose out of and in the course of employment is a question to be resolved in the first instance by the bureau. However, there is an exception `where it is obvious that the cause of action is not based on the employer/employee relationship.' The question whether plaintiff's injury arose out of and in the course of his employment may be a question of law or one primarily of fact, or a mixed question of law and fact. Thus, where the facts are undisputed, the question is one of law for the courts to decide." [Zarka v Burger King, 206 Mich App 409, 411; 522 NW2d 650 (1994), citations omitted.] In the instant case, the parties agree that plaintiff and defendant were co-employees. Thus, the sole issue is whether plaintiff's injury arose out of and in the course of her employment. The Worker's Disability Compensation Act, MCL 418.301(3); MSA 17.237(301)(3), provides that [a]n employee going to or from his or her work, while on the premises where the employee's work is to be performed, and within a reasonable time before and after his or her working hours, is presumed to be in the course of his or her employment. Notwithstanding this presumption, an injury incurred in the pursuit of an activity the major purpose of which is social or recreational is not covered under this act. This Court has adopted the test set forth in 1A Larson, Workmen's Compensation Law,

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