STATE OF MICHIGAN

                             COURT OF APPEALS



DAVID J. MCQUEER,                                                    UNPUBLISHED
                                                                     April 19, 2016
                Plaintiff-Appellant,

v                                                                    No. 325619

PERFECT FENCE COMPANY,                                               LC No. 2014-030287-NO

                Defendant-Appellee.


Before: TALBOT, C.J., and HOEKSTRA and SHAPIRO, JJ.

TALBOT, C.J. (concurring).

        I join the majority opinion in full. I write separately to address a concern discussed at
length during oral arguments on this matter: whether plaintiff has standing.

        Despite not being listed as an employee on defendant’s policy with Accident Fund,
plaintiff has received benefits from Accident Fund as the result of his accident. Defendant
suggests that plaintiff lacks standing because he has received benefits, and that the true dispute is
between defendant and Accident Fund over the fact that plaintiff was not disclosed as an
employee to Accident Fund. While such a dispute might well exist, plaintiff has standing in this
matter.

        In Michigan, “a litigant has standing whenever there is a legal cause of action.”1 As
explained in this Court’s opinion, plaintiff has presented evidence sufficient to create a question
of fact regarding whether defendant violated MCL 418.171. Pursuant to MCL 418.641(2), “[t]he
employee of an employer who violates the provisions of [MCL 418].171 . . . shall be entitled to
recover damages from the employer in a civil action that arose out of and in the course of
employment notwithstanding the provisions of [MCL 418.]131.” Thus, by violating MCL
418.171, an employer is no longer protected by the exclusive remedy provision of MCL 418.131,
and may be liable for damages in a tort action.2



1
    Lansing Sch Ed Ass’n v Lansing Bd of Ed, 487 Mich 349, 372; 792 NW2d 686 (2010).
2
  See Smeester v Pub-N-Grub, Inc (On Remand), 208 Mich App 308, 312; 527 NW2d 5 (1995)
(explaining that MCL 418.641(2) “imposes common-law liability in addition to, but not as a

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      That said, this Court has explained that in actions filed pursuant to MCL 481.641(2), an
employee is not entitled to double recovery:

                  Nothing in the WDCA purports to limit the damages recoverable in an
          action under [MCL 418.]641(2) in comparison with those otherwise available in a
          personal injury action sounding in tort. However, generally, it is abhorrent to the
          fundamental principles of the WDCA to allow any form of double recovery.
          Accordingly, if . . . an employee successfully has pursued and recovered benefits
          in a worker’s compensation proceeding, or been voluntarily awarded benefits, any
          such benefits must be subtracted from the recovery awarded by the trier of fact in
          a common-law action under [MCL 418.]641(2). Judgment then may be entered
          on the verdict thus adjusted.[3]

         Of course, it remains to be seen whether plaintiff’s suit will succeed. And if he does
succeed, plaintiff may nonetheless recover nothing if his damages are equal to or less than the
compensation he has already received. However, if the suit is successful, the finder of fact may
conclude that the damages suffered by plaintiff exceed the benefits he has received, in which
case defendant will be liable for the difference. This is one risk an employer accepts when it
fails to comply with MCL 418.171.

                                                              /s/ Michael J. Talbot




substitute for, benefits recoverable under the WDCA.”). Such a suit is not duplicative of
worker’s compensation proceedings. “There would be no point to pursuing such a common-law
remedy, with its requirement that the plaintiff prove fault, when the same recovery could be had
in a worker’s compensation proceeding . . . .” Id. at 314.
3
    Id. at 314 (citations omitted; emphasis supplied).


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