Law School Case Brief
Kuhlgert v. Mich. State Univ. - Nos. 332442, 338363, 344533, 2019 Mich. App. LEXIS 2398 (Ct. App. May 21, 2019)
22 U.S.C.S. § 2451 et seq., was incorporated by reference in MCL 418.161(1)(b), which sets forth the activities authorized under the Mutual Education and Cultural Exchange Act, and it is now designated as 22 U.S.C.S. § 2452. The latter's Subsection (a) authorizes the Director of the United States Information Agency, in the interests of strengthening international cooperative relations, to provide, by grant, contract, or otherwise, for the following: (1) educational exchanges, (i) by financing studies, research, instruction, and other educational activities—(A) of or for American citizens and nationals in foreign countries, and (B) of or for citizens and nationals of foreign countries in American schools and institutions of learning located in or outside the United States; and (ii) by financing visits and interchanges between the United States and other countries of students, trainees, teachers, instructors, and professors.
Ostendorf was a post-doctoral research associate at MSU and lead scientist involving a project funded through a grant from the Advanced Research Projects Agency for the Department of Energy. She was in the United States on a J-1 Visa as a participant in an exchange visitor program as authorized under the Mutual Educational and Cultural Exchange Act (MECEA), 22 USC 2451 et seq. The goal of Ostendorf's project was to screen plants for increased photosynthetic capacity. She began her work in 2012 for a one-year term, with the anticipation that the project could be renewed annually and last for three or more years. She was injured during her third term.
In October 2014, Ostendorf left the Food and Safety Toxicology Building where she worked and walked towards her vehicle parked in a lot located elsewhere on the MSU campus. She had walked approximately 900 feet when, while completing a text message, she emerged from the sidewalk abutting a driveway and was struck by a truck. At that time, Cole Gibson was backing up his truck—an MSU vehicle—toward a loading dock. Ostendorf suffered severe injuries.
These consolidated appeals all concern whether the injuries that plaintiff Elisabeth Ostendorf (hereinafter Ostendorf), a German national, suffered when a truck owned by Michigan State University (MSU) struck her as she was walking on the campus triggers the exclusive-remedy provision of the Worker's Disability Compensation Act (WDCA), MCL 418.101 et seq. See MCL 418.131(1) (except where an intentional tort is involved, benefits as provided by the WDCA constitute an employee's "exclusive remedy against the employer for a personal injury"). If not, then MSU's no-fault insurer, State Farm Mutual Automobile Insurance Company, and its excess liability insurer, United Educators (hereinafter UE), are responsible for providing insurance coverage for her injuries.
Whether the injuries that plaintiff Elisabeth Ostendorf (hereinafter Ostendorf), a German national, suffered when a truck owned by Michigan State University (MSU) struck her as she was walking on the campus triggers the exclusive-remedy provision of the Worker's Disability Compensation Act (WDCA), MCL 418.101 et seq?
The court affirmed. UE first argues that the Court of Claims and the MCAC erred when they concluded that Ostendorf's employment status removed her from coverage under the WDCA by way of MCL 418.161(1)(b)—which exempts "foreign nationals" from the definition of "employee." The court disagreed.
The court reviews a trial court's findings of fact for clear error. MCR 2.613(C). Questions of law, including statutory interpretation, are reviewed de novo. Thompson v Thompson, 261 Mich App 353, 358; 683 NW2d 250 (2004).
The MCAC reviews a decision of the Workers' Compensation Board of Magistrates for whether the decision is supported by competent, material, and substantial evidence on the whole record; absent fraud, the MCAC's factual conclusions are conclusive on appeal if supported by competent record evidence. Omian v Chrysler Group LLC, 309 Mich App 297, 306; 869 NW2d 625 (2015). A decision of the MCAC is subject to reversal if it is based on erroneous legal reasoning or the wrong legal framework. "Although judicial review of a decision by the MCAC is limited, questions of law in a workers' compensation case, including the proper interpretation of a statute, are reviewed de novo." Arbuckle v Gen Motors LLC, 499 Mich 521, 531; 885 NW2d 232 (2016).
It is undisputed that MSU, as an employer, generally comes under the protections and requirements of the WDCA. The exclusive-remedy provision under the WDCA requires that "[a]n employee" receive compensation as provided under the Act. See MCL 418.301(1) (emphasis added). The WDCA defines "employee" broadly, see MCL 418.161, but in doing so sets forth the following exemption: "Nationals of foreign countries employed pursuant to section 102(a)(1) of the [MECEA], shall not be considered employees under this act." MCL 418.161(1)(b).
It is also undisputed that, as the WDCA magistrate had found, "the Exchange Visitor Program (EVP) is an international exchange program administered by the Department of State to implement the MECEA by means of educational and cultural programs," that "[t]he EVP program is commonly known as the 'J visa program' as participants in the program are issued a 'J' non-immigrant visa for entry into the United States," or that Ostendorf was "in the United States under a 'J-1 visa.'" Instead, UE maintains that Ostendorf was not an exempt employee because MSU, not the State Department, paid her salary.
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