____________________________________________________________________________________________ 

____________________________________________________________________________________________________________________________ 

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Michigan Supreme Court 

Lansing, Michigan 48909 

C hief Justice Justices 

Maura D. Corrigan	 Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Clifford W. Taylor Opinion Robert P. Young, Jr. 

Stephen J. Markman 

FILED APRIL 24, 2002
 

KENNETH D. HESSE, Personal


Representative of the Estate of


JASON L. HESSE, Deceased, KENNETH


D. HESSE, CYNTHIA R. HESSE, and


AMY R. HESSE, a Minor, by her next


friend, Kenneth D. Hesse,
 

Plaintiffs-Appellees,
 

v	 No. 118548
 

ASHLAND OIL, INC., formerly known as


Ashland, Inc., a foreign corporation,


doing business as Valvoline Instant Oil


Change and as the Valvoline Company,
 

Defendant-Appellant, 


and
 

CHIPPEWA VALLEY SCHOOLS, JAMES J.


RIVARD, JAMES P. MURPHY, and RUTH


ANN BOOMS, Jointly and Severally,
 

Defendants.
 

PER CURIAM
 
In this case, plaintiffs, the parents of the decedent1,
 

claimed that the decedent’s employer was liable in tort for
 

the negligent infliction upon plaintiffs of emotional
 

distress, caused when plaintiffs were present at their son’s
 

workplace at the time of his death. The circuit court denied
 

defendant’s motion for summary disposition. The Court of
 

Appeals granted leave to appeal and affirmed the denial of
 

summary disposition on the claim of negligent infliction of
 

emotional distress.2 We reverse in part the judgment of the
 

Court of Appeals and remand this case to the Macomb Circuit
 

Court for entry of summary disposition in favor of the
 

defendant on the claim of negligent infliction of emotional
 

distress. Plaintiffs’ cause of action is barred by the
 

exclusive remedy provision of the Worker’s Disability
 

Compensation Act (WDCA), MCL 418.131. 


I 


The sixteen-year-old decedent was hired by defendant
 

Ashland Oil, Inc.,3 through the Chippewa Valley Schools’ work
 

1 The decedent’s minor sister is also named as a
 

plaintiff by virtue of her loss of consortium claim. Because
 

that claim is not implicated in this appeal, further
 

references to “plaintiffs” in this case refer only to the


parents of the decedent.
 

2
 The Court of Appeals agreed with defendant that the


trial court erred in denying summary disposition of the claims


of intentional tort and breach of contract. Those claims are
 

not before us. 


3 While there are multiple defendants in this case, only


defendant Ashland Oil is a party to this appeal. Accordingly,


further references to “defendant” in this case refer only to
 

2
 
study plan. After securing a work permit, decedent began
 

working for defendant at defendant’s “Instant Oil Change”
 

service facility. On June 2, 1995, a customer brought in a
 

five-gallon bucket that was filled with a liquid believed by
 

a coemployee of decedent to be waste oil. Following
 

procedures outlined by the defendant, the bucket was emptied
 

into a “catch basin.” Toward the end of normal business
 

hours, there was a problem with draining the catch basin. The
 

coemployee set about to check the level of the waste oil in
 

the catch basin. He purportedly did this by using a
 

disposable lighter, which caused an explosion.4 In the
 

ensuing fire, decedent was killed. Decedent’s parents learned
 

of the explosion and fire almost immediately and went to the
 

service center. While at the service center, plaintiffs were
 

told of their son’s death.
 

II
 

Plaintiffs sued their son’s employer, his school, and
 

employees of the school.5 Of the several causes of action
 

brought by plaintiffs against defendant Ashland, only one
 

Ashland Oil.
 

4 The coemployee denied he had used the lighter to look


inside the catch basin. For purposes of resolution of the


issue presented by defendant, it is unnecessary to resolve


this factual dispute. 


5
 Decedent’s parents filed several causes of action


including breach of contract, gross negligence, and
 

intentional tort. Additionally, decedent’s minor sister filed


an action for loss of consortium. Decedent’s father also sued
 

defendant as personal representative of his son’s estate. 


3
 
remained after the Court of Appeals issued its unpublished per
 

curiam opinion on January 12, 2001 (Docket No. 209075). This
 

was a claim by plaintiffs of negligent infliction of emotional
 

distress.6 Plaintiffs claimed damages from witnessing the
 

death of their child. Defendant asserts that the cause of
 

action is barred by the exclusive remedy provision of the
 

WDCA, MCL 418.131, which states: 


(1) The right to the recovery of benefits as


provided in this act shall be the employee's


exclusive remedy against the employer for a
 

personal injury or occupational disease. The only


exception to this exclusive remedy is an
 

intentional tort. 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. The issue of whether an act was an
 

intentional tort shall be a question of law for the


court. This subsection shall not enlarge or reduce


rights under law.
 

(2) As used in this section and section 827,


“employee” includes the person injured, his or her


personal representatives, and any other person to
 

whom a claim accrues by reason of the injury to, or
 

death of, the employee, and “employer” includes the


employer's insurer and a service agent to a selfinsured employer insofar as they furnish, or fail


to furnish, safety inspections or safety advisory


services incident to providing worker's
 

compensation insurance or incident to a self6 Plaintiffs’ cause of action is sometimes referred to as
 

“bystander recovery,” and its elements are set forth in


Wargelin v Sisters of Mercy Health Corp, 149 Mich App 75; 385
 

NW2d 732 (1986). This Court has never recognized the


existence of such a cause of action, and we decline to discuss


the validity of plaintiffs’ claim at this time because a


discussion of the merits of the claim is unnecessary to our


determination.
 

4
 
insured employer's liability servicing contract.


[Emphasis added.]
 

III
 

The Court of Appeals held that the claim for negligent
 

infliction of emotional distress brought by plaintiffs, even
 

when it concerned a work-related accident, was a separate tort
 

and thus not within the bar of the exclusive remedy provision.
 

The plain language of the statute, however, states that the
 

exclusive remedy for an employee, including “his or her
 

personal representatives, and any other person to whom a claim
 

accrues by reason of the injury to, or death of, the
 

employee,” is found in the WDCA. MCL 418.131(2). 


This provision is dispositive of this case. Here, the
 

plaintiffs’ claim has accrued by reason of the death of an
 

employee of the defendant. The plaintiffs are within the
 

category of individuals barred from suit, namely, as defined
 

by § 131(2) of the WDCA, “any other person to whom a claim
 

accrues by reason of the . . . death of . . . the employee .
 

. . .” Thus, the claim is barred.
 

In asserting that plaintiffs’ negligent infliction of
 

emotional distress claim is not barred by MCL 418.131, the
 

Court of Appeals and the dissent here rely substantially on
 

Barnes v Double Seal Glass Co, Inc, 129 Mich App 66; 341 NW2d
 

812 (1983), and Auto Club Ins Ass’n v Hardiman, 228 Mich App
 

470; 579 NW2d 115 (1998). However, those cases are materially
 

5
 
 

distinguishable from the present case and, consequently, offer
 

little guidance in its resolution.
 

Barnes also involved a tragic workplace death of a
 

sixteen-year-old. In that case, the Court of Appeals held
 

that the trial court erred, on the basis of the exclusive
 

remedy provision of the WDCA, in granting summary disposition
 

in favor of the employer with regard to the claim of the
 

employee’s parents for intentional infliction of emotional
 

distress. Id. at 75-76. This result does not seem unusual in
 

any way because MCL 418.131(1) provides for an intentional
 

tort exception to the exclusive remedy rule of the worker’s
 

compensation scheme and that is the exception the Barnes’ suit
 

invoked. Thus, since the instant case involves a
 

nonintentional tort claim, i.e., negligent rather than
 

intentional infliction of emotional distress, the Barnes
 

holding is inapposite.
 

Similarly, the holding of Hardiman is inapposite to the
 

resolution of the present case. Most importantly, Hardiman
 

did not involve a worker’s compensation question; rather, it
 

dealt with the narrow question whether damages in a nonworker’s compensation civil lawsuit, involving a “negligent
 

infliction of emotional distress” claim, constituted
 

“derivative damages” so that insurance coverage could be
 

limited.7 This issue of law is irrelevant to a discussion of
 

7
 Evidently, the negligent infliction of emotional


distress claim in Hardiman was based on an incident in which
 

6
 
the nuances of the exclusive remedy provision of the WDCA.
 

While there is discussion in Hardiman of the distinctions
 

between derivative and independent actions in civil
 

litigation, the statute here, MCL 418.131, controls the
 

lawsuit in the instant case. This statute never alludes to
 

derivative or independent actions, but simply states that
 

claims accruing “by reason of the injury to, or death of, the
 

employee” are barred. Thus, because these plaintiffs have
 

claims that have accrued “by reason of” the death of the
 

employee, they are without a remedy, and nothing Hardiman
 

states affects this in the slightest.
 

Moreover, although we regard the plain language of MCL
 

418.131 as decisive, we believe that our decision is
 

reinforced by an understanding of the history of the exclusive
 

remedy provision of the WDCA. Helpful in this regard are this
 

Court’s companion decisions in Moran v Nafi Corp, 370 Mich
 

536; 122 NW2d 800 (1963), and Balcer v Leonard Refineries,
 

Inc, 370 Mich 531; 122 NW2d 805 (1963). In both Moran and
 

Balcer, we addressed whether a claim for loss of consortium
 

against an employer based on an injury suffered by a spouse as
 

an employee was barred by the then much less well-defined
 

a six-year-old witnessed her brother being struck by an


automobile, which rendered the brother a paraplegic. Id. at
 

472. The Hardiman panel concluded that a claim for negligent


infliction of emotional damages is not “derivative” because it


“may be maintained as a separate, independent cause of action


and is not dependent upon actual injury to, or recovery by,


another person.” Id. at 475.
 

7
 
exclusive remedy provision of the Workmen’s Compensation Act,
 

which did not then, as it does now, expressly extend to
 

persons other than an employee.8
 

Notwithstanding the much less sweeping language in the
 

old statute, Justice O’Hara writing for the Court had no
 

trouble concluding in Moran that, not just an employee, but
 

also a third party, was barred from maintaining a cause of
 

action against an employer under the exclusive remedy
 

provision. Justice O’Hara said:
 

Under the above section and the title of the
 

act, as previously discussed, we believe any


broadening of the base of recovery against the


employer as a result of an industrial injury to


include an action at law by any other person must,


if it is to be authorized, be authorized by


legislative action. We hold the legislative intent
 

expressed in the act precludes the judicial


construction contended for by plaintiff and adopted


by the learned trial judge [which would have


allowed the loss of consortium claim to go


forward]. [Id. at 543.][9]
 

8 The language of MCL 411.4, the predecessor of MCL


418.131, as then in effect, stated simply:
 

Where the conditions of liability under this
 

act exist, the right to the recovery of
 

compensation benefits, as herein provided, shall be


the exclusive remedy against the employer.
 

9
 Three justices joined the lead opinion of Justice


O’Hara in Moran that contained this holding. At the time,


there were eight justices on this Court. In a concurring


opinion, Chief Justice Carr, joined by two other justices,


stated “[w]e are in accord with the holding of Mr. Justice


O’Hara that the rights granted by the workmen’s compensation


act to an employee who sustained an injury arising out of and


in the course of his employment are exclusive.” Id. at 545.
 

Thus, the above-quoted holding from the lead opinion in Moran
 

regarding the exclusivity of the Workmen’s Compensation Act


constituted a majority holding of this Court. Chief Justice
 

8
 
 

In Balcer, which was considered and released with Moran,
 

Justice Smith concluded to similar effect that the exclusive
 

remedy provision barred a claim by a third party against the
 

employer on the basis of an injury to an employee. He offered
 

historical background that is edifying:
 

“The history of the development of statutes,
 

such as this, creating a compensable right


independent of the employer’s negligence and
 

notwithstanding an employee’s contributory


negligence, recalls that the keystone was the
 

exclusiveness of the remedy. This concept emerged


from a balancing of the sacrifices and gains of


both employees and employers, in which the former


relinquished whatever rights they had at common law


in exchange for a sure recovery under the
 

compensation statutes, while the employers on their


part, in accepting a definite and exclusive
 

liability, assumed an added cost of operation which


in time could be actuarially measured and
 

accurately predicted; incident to this both parties


realized a saving in the form of reduced hazards


and costs of litigation.” [Id. at 535 (Smith, J.),


quoting Smither & Co, Inc v Coles, 100 US App DC


68, 70; 242 F2d 220 (1957) (emphasis in Balcer).]
 

Our holding in this case is also consistent with the
 

overview of the different approaches to the exclusive remedy
 

provision that Justice Smith discussed in Balcer at 533-534,
 

Carr’s opinion included additional discussion of his view that


this Court should not have adopted a cause of action for loss


of consortium, id. at 544-545, which presumably was his reason


for writing separately.
 

Similarly, in Balcer, the lead opinion, which was joined


by four of the eight participating justices, indicated that


the plain language of MCL 411.4 as then in effect barred the


wife’s loss of consortium claim. Id. at 532-533 (Smith, J.).


The other four justices concurred for the reasons set forth in


Moran, supra. Id. at 535 (Carr, C.J.).
 

9
 
quoting 2 Larson, Workmen’s Compensation, § 66.10, p 141, as
 

follows:
 

“There are 3 general types of ‘exclusive


liability’ clause which, for present purposes, must


be carefully identified with the cases that depend


upon them; from the narrowest to the broadest, they


are as follows: the Massachusetts type, which only


says that the employee, by coming within the act,


waives his common-law rights; the California and


Michigan type, which say that the employer’s


liability shall be ‘exclusive,’ or that he shall


have ‘no other liability whatsoever’; and the New


York type, which carries this kind of statute 1


step further by specifying that the excluded
 

actions include those by ‘such employee, his
 

personal representatives, husband, parents,


dependents or next of kin, or anyone otherwise
 

entitled to recover damages, at common law or


otherwise on account of such injury or death.’”


[Emphasis in Balcer.]
 

Since this was written in 1963, MCL 418.131 has been enacted
 

and has, of course, moved Michigan into the “New York type” of
 

exclusive remedy provision under which it is even more clear
 

that a third party ordinarily cannot recover damages from an
 

employer on the basis of an employee’s death.
 

Against this background, it is all the more appropriate
 

that, as with our predecessors, we should continue to accord
 

a plain reading to the current exclusive remedy provision,
 

which unambiguously bars from suit “any other person to whom
 

a claim accrues by reason of the injury to, or death of, the
 

employee.”
 

No one would disagree with the dissent that the death
 

underlying this case occurred under tragic and horrific
 

circumstances. However, our empathy for plaintiffs does not
 

10
 
justify this Court ignoring the plain language of MCL 418.131,
 

which bars the imposition of liability on defendant in the
 

present circumstances. It could be argued, as undoubtedly it
 

has been before the Legislature, that the law should allow a
 

cause of action under circumstances like those in this case.
 

Yet, as Justices Smith and O’Hara and the many others on this
 

Court who have written or signed opinions to a similar effect
 

have understood, this is a policy matter—which is to say, it
 

is not this Court’s choice to make. Rather, we, as judges,
 

must apply the legislation as it is written. As Justice
 

Cavanagh stated for a unanimous Court in Huggett v Dep’t of
 

Natural Resources, 464 Mich 711, 717; 629 NW2d 915 (2001):
 

If the statutory language is clear and
 

unambiguous, then we conclude that the Legislature


intended the meaning it clearly and unambiguously


expressed, and the statute is enforced as written.


No further judicial construction is necessary or


permitted.
 

Justice Kelly not only joined that statement, but earlier
 

stated in her unanimous opinion in Chandler v Dowell
 

Schlumberger Inc, 456 Mich 395, 406; 572 NW2d 210 (1998), with
 

regard to the statute at issue there, that “[t]he Legislature
 

can and may rewrite the statute, but we will not do so.” The
 

dissent, we assume, still adheres to this rule, but deflects
 

the thrust of it by the claim that the language of the statute
 

at issue is ambiguous and, thus, the judiciary is free to
 

interpret its meaning. The worth of this argument, we
 

believe, is self-evident to those who read this
 

11
 
straightforward statute and the statute’s consistent and
 

unvarying judicial construction over the whole of the era of
 

worker’s compensation.
 

In sum, plaintiffs’ claim against defendant for negligent
 

infliction of emotional distress is barred by the exclusive
 

remedy provision of the WDCA contained in MCL 418.131.
 

IV
 

We reverse, in part, the judgment of the Court of Appeals
 

and remand to the Macomb Circuit Court for summary disposition
 

in favor of defendant. We do not retain jurisdiction. 


CORRIGAN, C.J., and WEAVER, TAYLOR, YOUNG, and MARKMAN, JJ.,
 

concurred.
 

12
 
___________________________________ 

v 

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

SUPREME COURT
 

KENNETH D. HESSE, Personal


Representative of the Estate of


JASON L. HESSE, deceased, KENNETH


D. HESSE, CYNTHIA R. HESSE, and


AMY R. HESSE, a minor, by her next


friend, Kenneth D. Hesse,
 

Plaintiffs-Appellees,
 

No. 118548
 

ASHLAND OIL, INC., formerly known


as Ashland, Inc., a foreign


corporation, doing business as


Valvoline Instant Oil Change and


as the Valvoline Company,
 

Defendant-Appellant,
 

and
 

CHIPPEWA VALLEY SCHOOLS, JAMES J.


RIVARD, JAMES P. MURPHY, and RUTH


ANN BOOMS, jointly and severally,
 

Defendants.
 

KELLY, J. (dissenting).
 

In its efforts to read the law scrupulously, the majority
 

has misconstrued the exclusive remedy provision of the
 
Worker's Disability Compensation Act,1 giving it meaning never
 

intended by its framers. Plaintiffs allege an injury to
 

themselves, not to their son. Because their claim falls
 

outside the scope of the act, this Court should affirm the
 

decision of the Court of Appeals.
 

I. Factual and Procedural Background
 

Plaintiffs witnessed a terrible accident that they assert
 

was caused by defendant's negligence. They arrived at the
 

service center simultaneously with fire fighters and found the
 

building where their son Jason worked aflame from the
 

explosion that had occurred there minutes before. The fire
 

was burning too strongly for plaintiffs or anyone else to
 

rescue Jason from inside. Mrs. Hesse, in her anguish, made a
 

rescue effort and had to be restrained. She became so
 

distraught that she required immediate medical attention. She
 

and her husband remained at the scene for hours and eventually
 

witnessed the removal of a body, presumably that of their son.
 

Jason Hesse was burned beyond recognition, his body identified
 

only by dental records.
 

As the Court of Appeals recognized, there was ample
 

evidence that the experience traumatized both Mr. and Mrs.
 

Hesse to the point of causing them physical harm:
 

Ashland next argues that plaintiffs produced


no evidence that Kenneth and Cynthia Hesse suffered
 

1
 MCL 418.131.
 

2
 
actual physical harm as a result of the accident,


other than the expected shock and distress stemming


from the death of their son. We disagree. Evidence


showed that Cynthia Hesse became so hysterical when


she arrived at the scene of the fire that she
 

required immediate medical treatment and sedation.


Further, in her deposition, Cynthia Hesse testified


that she experienced additional medical problems as


a result of her trauma. Mrs. Hesse testified that
 

her preexisting bladder condition was exacerbated


by her nervous condition after Jason's death.
 

Moreover, she suffered at least one nightmare


related to Jason's death, during which she reacted


so violently that she pulled muscles in her neck


and shoulder, which required medical attention.


Clearly, plaintiffs established a triable issue


with regard to whether Cynthia Hesse incurred


actual physical injury due to the shock she
 

experienced because of her son's death.
 

Further, plaintiffs succeeded in establishing


a triable issue with regard to whether Kenneth


Hesse suffered an actual physical injury. According


to the evidence, Kenneth Hesse experienced shock


and trauma related to Jason's death. Mr. Hesse
 

reported experiencing "depression, anxiety[,]


sleeping problems" and an inability to concentrate.


He also stated that Jason's death had caused him to
 

abuse alcohol. In August 1996, a doctor prescribed


Mr. Hesse Prozac because he was having "[a] lot of


trouble with energy," which was related to Mr.
 

Hesse's state of grief following Jason's death.


This evidence establishes a triable issue with
 

regard to whether Mr. Hesse suffered actual
 

physical injury as a result of the accident. [Slip


op, pp 9-10 (citations omitted).]
 

The Court of Appeals concluded that plaintiffs' claim for
 

their own injuries caused by witnessing the fire stated a
 

separate tort of negligent infliction of emotional distress.
 

It was not derived from the injuries to their son. The panel
 

cited Michigan law recognizing such a nonderivative claim.
 

Slip op at 9, citing Auto Club Ins Ass'n v Hardiman, 228 Mich
 

3
 
App 470, 474-477; 579 NW2d 115 (1998), and Barnes v Double
 

Seal Glass Co, 129 Mich App 66, 75-76; 341 NW2d 812 (1983).
 

II. The Cause of Action
 

A claim for negligent infliction of emotional distress is
 

generally recognized when a parent witnesses the violent death
 

of a child. See generally Prosser & Keeton, Torts (5th ed),
 

§ 54, pp 359-367; see also Consolidated Rail Corp v Gotshall,
 

512 US 532, 545-549; 114 S Ct 2396; 129 L Ed 2d 427 (1994).2
 

The common-law cause of action for negligent infliction of
 

emotional distress has been recognized and applied in
 

Michigan, although this Court has never ruled on the issue.
 

Hardiman, supra at 475; Wargelin v Sisters of Mercy Health
 

Corp, 149 Mich App 75, 81; 385 NW2d 732 (1986).
 

As stated by the Court of Appeals, the elements of
 

negligent infliction of emotional distress are: (1) serious
 

injury threatened or inflicted on a person, not the plaintiff,
 

of a nature to cause severe mental disturbance to the
 

plaintiff, (2) shock by the plaintiff from witnessing the
 

2 The United States Supreme Court in Consolidated Rail
 

noted that "[n]early all of the States" have recognized some


form of negligent infliction of emotional distress. Id. at
 

544-545. It went on to identify Michigan as one of nearly


half the states that "now allow bystanders outside of the zone


of danger to obtain recovery in certain circumstances for


emotional distress brought on by witnessing the injury or


death of a third party (who typically must be a close relative


of the bystander) that is caused by the defendant's
 

negligence." Id. at 549, n 10, citing Nugent v Bauermeister,


195 Mich App 158; 489 NW2d 148 (1992).
 

4
 
event that results in the plaintiff's actual physical harm,
 

(3) close relationship between the plaintiff and the injured
 

person (parent, child, husband, or wife), and (4) presence of
 

the plaintiff at the location of the accident at the time the
 

accident occurred or, if not presence, at least shock "fairly
 

contemporaneous" with the accident. Wargelin, supra at 81.3
 

Michigan generally does not regard a claim of negligent
 

infliction of emotional distress made by a close family member
 

to be derivative of the family member's injury. The Court of
 

Appeals considered the difference between derivative and
 

nonderivative actions in Hardiman, supra. There, it
 

distinguished the claim of negligent infliction of emotional
 

distress from claims such as loss of consortium, society, and
 

companionship, which are derivative claims.4 Unlike them, "a
 

claim of negligent or intentional infliction of emotional
 

distress may be maintained as a separate, independent cause of
 

3 Michigan precedent does not adhere to the "zone of


danger" rule that precludes liability when the witness was not


in any danger himself. See 2 Restatement Torts, 2d, § 313, pp


113-115; See also 2 Stein, Personal Injury Damages (3d ed),


§ 10:31, p 10-69, n 23.
 

4 The majority makes much of this Court's lead opinion in


Moran v Nafi Corp, 370 Mich 536; 122 NW2d 800 (1963). There,


the Court addressed only the claim of loss of consortium,


describing it as "growing out of the accidental injury to the


employee," or derivative. Id. at 538. See Black's Law
 

Dictionary (6th ed), defining "derivative" as: "Coming from


another; taken from something preceding; secondary." Where,


unlike a claim for loss of consortium, plaintiffs' claim for


negligent infliction of emotional distress is not derivative


of the employee's injury, Moran does not support the
 

majority's construction of MCL 418.131.
 

5
 
action and is not dependent upon actual injury to, or recovery
 

by, another person." Hardiman, supra at 475, citing Barnes,
 

supra at 75-76; Campos v General Motors Corp, 71 Mich App 23,
 

25; 246 NW2d 352 (1976).
 

I believe that the claim plaintiffs made in this case is
 

not derivative of their son's accident, as the term
 

"derivative" is used in Michigan law. For that reason, it
 

survives the exclusive remedy provision of the WDCA.
 

Moreover, I believe that my position finds support in the
 

language and purpose of the WDCA.
 

III. The Exclusivity of the WDCA
 

Although no case is on point, Barnes is closely
 

analogous. In Barnes, the Michigan Court of Appeals
 

determined that a claim for the intentional infliction of
 

emotional distress is not covered by the exclusive remedy
 

provision of the WDCA. There, the plaintiffs' son was killed
 

in a work-related accident. Although intentional tort claims
 

are generally not precluded by the WDCA, the Court of Appeals
 

analysis of the emotional distress claim is instructive. The
 

Court concluded that "Plaintiffs' claim for intentional
 

infliction of emotional distress is made on their own behalf,
 

for their own injuries, for a tort directed at them rather
 

than at their son. The claim is not for wrongful death and is
 

not covered by . . . the exclusive remedy provision of the
 

WDCA . . . ." See Id. at 76. The instant claim for negligent
 

6
 
infliction of emotional distress belongs to plaintiffs in the
 

same way.
 

The language of the exclusive remedy provision is not
 

unambiguous, as the majority unequivocally asserts. MCL
 

418.131 restricts recovery to the disabled employee and "any
 

other person to whom a claim accrues by reason of the injury
 

to, or death of, the employee . . . ." MCL 418.131(2). The
 

purpose of the WDCA is to provide a system of "compensation to
 

employees for injuries suffered in the course of employment,
 

regardless of who is at fault." Clark v United Automotive
 

Technology, Inc, 459 Mich 681, 686-687; 594 NW2d 447 (1999)
 

(emphasis added). By way of contrast, plaintiffs allege
 

injuries to themselves. They were not employed by defendant
 

and therefore did not sustain their injuries in the course of
 

employment.
 

I believe that a fair reading of MCL 418.131 begins with
 

the understanding that recovery under the WDCA is available to
 

an injured employee and to individuals standing in his place.
 

Claims outside the WDCA brought, for example, by the personal
 

representative of a deceased employee's estate truly accrue by
 

reason of the employee's death and are precluded by MCL
 

418.131. On the other hand, plaintiffs' claim is based on the
 

effect on them of having witnessed the employee's death. It
 

is not meant to recover for the death itself. They do not
 

stand in their son's shoes while making this claim. Hence, it
 

7
 
falls outside the scope of the WDCA, and MCL 418.131 does not
 

pertain to it. See Barnes, supra at 71.
 

Notably, if plaintiffs are prevented from maintaining
 

this action, they will also be unable to avail themselves of
 

the remedies of the WDCA. They will have nowhere else to turn
 

to recover for their physical manifestations of witnessing
 

their son's horrific death. 


As this Court stated in Clark, supra at 687: "In return
 

for [the employer incurring] almost automatic liability,
 

employees are limited in the amount of compensation they may
 

collect from their employer, and, except in limited
 

circumstances, may not bring a tort action against the
 

employer." Under the majority's construction of the exclusive
 

remedy provision, plaintiffs' recovery is precluded, but there
 

is no corresponding "almost automatic liability" for their
 

injuries to justify the preclusion. That result could not
 

have been intended by the Legislature.
 

IV. Conclusion
 

The majority has extended the reach of the exclusive
 

remedy provision of the WDCA to bar plaintiffs' claim of
 

negligent infliction of emotional distress. The per curiam
 

opinion effects this leap without citing any authority on
 

point and without considering that MCL 418.131 is subject to
 

differing interpretations. The majority relies simply on its
 

reading of MCL 418.131, obdurately asserting that it is plain
 

8
 
and unambiguous.
 

By contrast, the Court of Appeals interpretation of the
 

statute is based on the sound reasoning in Barnes, Hardiman,
 

and Wargelin. This Court should apply existing law and
 

consider the purpose underlying the WDCA. It should conclude
 

that the exclusive remedy provision must be construed as not
 

including the claims of third parties ineligible for
 

compensation under the WCDA, and it should affirm the judgment
 

of the Court of Appeals.
 

CAVANAGH, J.
 

I would either grant or deny leave to appeal, but would
 

not dispose of this case by an opinion per curiam.
 

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