If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.

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### S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

JULIE A

. BOLEN,

Plaintiff

- Appellee/Cross

- Appellant, UNPUBLISHED February 18, 2021

v No. 348765

Oakland Circuit Court MARADA INDUSTRIES, INC ., doing business as COSMA BODY ASSEMBLY MICHIGAN, LC No. 2018

- 163688

- NO

Defendant

- Appellant/Cross

- Appellee.

Before: C AVANAGH

, P .J., and J ANSEN and S HAPIRO , JJ.

S HAPIRO

, J . ( concurring ).

I concur because I am bound by the Michigan Supreme Court ’s decisions in Kidder v

Miller

- Davis Co , 455 Mich 25; 564 NW2d 872 (1997)

, and Farrell v Dearborn Mfg Co , 416 Mich 267; 330 NW2d 397 (1982). I write separately to urge the Supreme Court to reconsider its holding s in those cases.

Michigan courts look negat ively upon a party’s attempt to “double dip

. ” That is exactly what defendant seeks to do in this case. It argues that two wholly separate entities are both granted immunity from suit under MCL 418.131 of the Worker’s Disability Compensation Act (WDCA)

, even though only one of them has obtained applicable worker ’ s compensation insurance, without which immunity is improper. Justice R YAN ’s dissent in Farrell clearly spells out why applying

the WDCA’s exclusive

- remedy provision in this manner is improper f rom both a legal and a market perspective:

My colleague ’ s approach suggests that if two companies can divide the attributes of employment equally enough, both will be entitled to the “exclusive remedy” bar of the statute, even though only one set of worke rs’ compensation insurance premiums must be paid. In short, my colleague’s opinion advertises “two bars for the price of one.”

Moreover, from a purely policy perspective, the Court’s decision enables a company to insulate itself from the economic conse quences of an unsafe work place. It seems clear that the Legislature contemplated that either total liability or- 2

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higher workers’ compensation insurance rates would provide an economic incentive for every company to care about worker safety. It now appear s that the labor broker scheme may be an expedient method of avoiding either type of liability. [ Farre l l , 416 Mich at 286

- 287 ( R YAN

, J., dissenting in part).]

Justice R YAN ’s argument became even more compelling after the decision in Robinson v City of Det roit , 462 Mich 439; 613 NW2d 307 (2000)

, a case concerning the interpretation of the governmental tort liability act in which the Supreme Court held that the term “the

, ” being a definite article, must be construed as referring to a single item: “ [W] e must follow these distinctions

between ‘ a ’ and ‘ the. ’ ” Id . at 462

. The C ourt went on to state: “ [R] ecognizing that ‘ the ’ is a definite article, and ‘ cause ’ is a singular noun, it is clear that the phrase ‘ the proximate cause ’ contemplates one cause.” Id

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The proper ruling in this case can be determined merely by substituting the word “employer” f

or “cause” and “proximate cause” in the foregoing passage so that it would read :

“ R ecognizing that ‘ the ’ is a definite article and ‘ employer ’ is a single nou n, it is clear that the phrase ‘ the employer ’ contemplates one employer.” Thus, following Robinson , when the WDCA 1 states that it provides the exclusive remedy as to “the employer,” MCL 418.131 (1)

, it refers to a single employer.

Putting aside the question of statutory interpretation, it is also clear that ATCO is not a typical labor broker. It provides professional level specialists to its clients and although their work places ATCO employees at the client’s workplace, they a re n ot treated as the client ’s employees. They are not fully integrated into the client’s workplace or perform the same work as the client’s direct employees perform. In this case, i n addition to not counting as defendant’s employees for purposes of worker’s compensation, plaintiff and the other ATCO employees worked under the direction of ATCO supervisors and could not be assigned to other work by defendant.

Finally, it is eviden t that the nature of some employment relationships has changed since

the Kidd er and Farrell decisions. The “gig” economy has blurred the lines between employers, contractors, employees and labor brokers. If for no other reason than the need to consider whether and how to address these changes, the Supreme Court should grant leave to appeal.

/s/ Douglas B. Shapiro

1 The language of the act is what controls. “The W orkmen’s C ompensation L aw is a departure, by statute, from the common law, and its procedure provisions speak all intended upon the subject. Rights, remedies and procedure thereunder are

. . . only [] as th e statute provides. ” Baughman v

Grand Trunk Western R Co , 277 Mich 70, 72; 268 NW 815 (1936). See also Lash v Traverse City

, 479 Mich 180, 189; 735 NW2d 628 (2007) (“ We presume that the Legislature intended the common meaning of the words used in the sta tute, and we may not substitute alternative language for that used by the Legislature .”)

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