                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 05a0988n.06
                            Filed: December 19, 2005

                            Consolidated Case Nos. 04-2263, 04-2264

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

SHARON MARION, PERSONAL REPRESENTATIVE
OF THE ESTATE OF JOSEPH BERRY, (04-2263)
EDWIN FLETCHER AND MARY FLETCHER, (04-2264)
       Plaintiffs-Appellants,

                                                      On Appeal from the
                v.                                    United States District Court for
                                                      the Western District of Michigan

WISCONSIN ELECTRIC POWER COMPANY,
     Defendant-Appellee.

______________________________/


         Before: KEITH, KENNEDY, and BATCHELDER, Circuit Judges

         Kennedy, J. In this consolidated appeal, Plaintiffs Marion and Fletcher appeal from the

district court’s opinion granting summary judgment to Defendants. In that opinion, the district court

held that the evidence relied on by Plaintiffs was not sufficient to support an action under the

intentional tort exception to the exclusive remedy provided by the Michigan Worker’s Disability

Compensation Act, M.C.L. §§ 418.101-941. For the following reasons, we AFFIRM the district

court.

                                         BACKGROUND

         This case stems from an accident at Wisconsin Electric Power Company’s (Defendant)

Presque Isle coal fired electrical generation facility in Marquette, Michigan. This type of plant

generates power by grinding coal into a fine powder and blowing the powder through duct work to
boilers. The coal heats water in the boilers into steam. The steam turns turbines, which generate

electricity. Three of the plant’s nine generating units use ball tube mills to crush coal. These units

use Powder River Basin Coal, which can spontaneously ignite under the ambient conditions present

in the power generation process. The highest risk of coal dust explosions occurs during start-up and

shut-down. For this reason, the plant has strict procedures that it must follow to minimize the

amount of excess coal in the ducts of the mills during these procedures. There is no definite way

to gauge whether the ducts or the mills have been emptied, so the procedure at this facility calls for

a mill to run for ten minutes at a steady stream of 91 decibels without adding any fuel before it is

shut-down. According to the procedures, if, during the ten minutes, any decibel change takes place,

the clock must restart and the mill must run for a continuous ten minute period at 91 decibels.

During start-up and shut-down, plant personnel are prohibited from entering certain areas around

the mill due to the heightened risk of an explosion.1

       Plaintiffs were employed as maintenance mechanics at the facility. On December 27, 2001,

the 8A mill system was taken out of service to allow for the replacement of an oil pump. To replace

the oil pump, Plaintiffs had to enter a restricted area. The full shut-down procedure was not

followed because an air fan stopped unexpectedly. This stoppage caused a premature shut-down of

the mill. The mill only ran for approximately seven minutes, rather than the required ten minutes,

at the appropriate decibel level. The system was not restarted to complete the shut-down procedure.

       Plaintiffs entered the restricted area and replaced the oil pump. After completing their work,

they exited the restricted area, and advised their supervisor that they had completed the repair. They

then returned to the restricted area to clean their tools. They did not inform anyone that they were


       1
        This opinion will refer to those areas as “restricted areas.”

                                                  2
returning to the restricted area. The mill was restarted while they were in the restricted area and a

coal dust explosion occurred. Joseph Berry was killed and Erwin Fletcher was severely injured and

is now disabled.

       The plant has a public address system. Under the start-up and shut-down procedures, an

announcement must be made before a mill is started or stopped in order to alert workers to stay clear

of the restricted area around the mill. An announcement was made on the public address system

prior to the plant’s starting up, but a later investigation revealed that the only speaker in the

restricted area in which Plaintiffs were cleaning their tools was inoperative. The investigation

concluded that the speaker had not been working for some time prior to the accident.

       Although Plaintiffs’ injuries are compensable under the Michigan Worker’s Disability

Compensation Act (MWDCA), M.C.L. §§ 418.101-941, Plaintiffs filed a tort suit against Defendant

under the intentional tort exception to the MWDCA. After discovery, the district court granted

Defendant summary judgment. Plaintiffs appealed.

                                            ANALYSIS

       This court reviews a grant of summary judgment de novo. Adams v. City of Auburn Hills,

336 F.3d 515, 518 (6th Cir. 2003). For the purposes of this appeal, we construe the evidence in the

light most favorable to Plaintiffs and draw all reasonable inferences in their favor. Aiken v. City of

Memphis, 190 F.3d 753, 755 (6th Cir. 1999) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

Corp., 475 U.S. 574, 587, 106 S. Ct. 1348 (1986)). Granting summary judgment is proper when “the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” FED.R.CIV.P. 56(c).


                                                  3
        The MWDCA provides an exclusive remedy for employees for injuries they suffer on the

job. The only exception to this exclusive remedy is the intentional tort exception. M.C.L. §

418.131(1).2 The Michigan Supreme Court interpreted the intentional tort exception in Travis v.

Dreis and Krump Mfg. Co., 551 N.W.2d 132, 143 (Mich.1996) and its companion case, Golec v.

Metal Exchange Corp., 551 N.W.2d 132, 143 (Mich.1996). Travis involved a woman who was

injured when a press “double-cycled” and severely damaged her hands. Travis, 551 N.W.2d at 135-

36. In addition, two of her fingers were amputated. Id. Her supervisor was aware that the press had

the tendency to double cycle, but did not tell her of this possibility. Id. He believed that he had

adjusted the press so that it would not double cycle. See id. Golec involved a man severely burned

by molten metal that splashed on him after he was ordered to continue filling a furnace with scrap

despite a previous splash and injury. Golec, 551 N.W.2d at 136-37. The Michigan Supreme Court

found that Travis did not establish that an intentional injury had occurred, but that a material dispute

of fact existed in Golec that required resolution by a fact-finder. Id. at 146-49.

       In analyzing the MWDCA, the Michigan Supreme Court indicated that the intentional tort

exception could be satisfied either through the proof of a “classic intentional tort,” Travis, 551


       2
        M.C.L.A. 418.131(1) reads:

               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.

                                                   4
N.W.2d at 143, or, “when there is no direct evidence of intent to injure, and intent must be proved

with circumstantial evidence,” id., through the satisfaction of a three-part test. That test required,

first, did the employer have “actual knowledge” that an injury would occur? Id. Second, was that

injury “certain to occur?” Id. Third, did the employer “willfully disregard[]” the risk to the

employee? Id.

       With regard to the first part of the test, the Michigan Supreme Court held that:

       [b]ecause the Legislature was careful to use the term “actual knowledge,” and not the
       less specific word “knowledge,”. . . the Legislature meant that constructive, implied,
       or imputed knowledge is not enough. Nor is it sufficient to allege that the employer
       should have known, or had reason to believe, that injury was certain to occur. A
       plaintiff may establish a corporate employer's actual knowledge by showing that a
       supervisory or managerial employee had actual knowledge that an injury would
       follow from what the employer deliberately did or did not do.

Travis, 551 N.W.2d at 143. With regard to the second part of the test, the Michigan Supreme Court

decided that:

       [w]hen an injury is “certain” to occur, no doubt exists with regard to whether it will
       occur. Thus, the laws of probability, which set forth the odds that something will
       occur, play no part in determining the certainty of injury. Consequently, scientific
       proof that, for example, one out of ten persons will be injured if exposed to a
       particular risk, is insufficient to prove certainty. Along similar lines, just because
       something has happened before on occasion does not mean that it is certain to occur
       again. Likewise, just because something has never happened before is not proof that
       it is not certain to occur.

Id. (footnote omitted). Finally, with respect to the third part of the test, the Michigan Supreme

Court held that:

       [b]ecause the purpose of the entire second sentence is to establish the employer's
       intent, we find that the use of the term "willfully" in the second sentence is intended
       to underscore that the employer's act or failure to act must be more than mere
       negligence, that is, a failure to act to protect a person who might foreseeably be
       injured from an appreciable risk of harm. An employer is deemed to have possessed
       the requisite state of mind when it disregards actual knowledge that an injury is
       certain to occur.

                                                  5
Id. The court went on to hold that: “ . . . the Legislature has permitted the employer's state of mind

to be inferred from its actions when there is no direct evidence of the employer's intent to injure.”

Id.

        In this case, Plaintiffs do not assert that their injuries were caused by a classic intentional

tort, rather they assert that they have offered sufficient evidence under the Michigan Supreme

Court’s three-part test to survive summary judgment. We agree with the district court that Plaintiffs

have not offered sufficient facts to raise a material question of fact as to any part of the test.

        Defendant lacked “actual knowledge” that an explosion would occur. The evidence in the

record indicates that an explosion was more likely to occur during start-up or shut-down and that

the procedures were designed to minimize the possibility of an explosion. But, Plaintiffs do not

offer any evidence that Defendant or its agents knew that an explosion would occur. Thus, Plaintiffs

cannot show that Defendant possessed actual knowledge that an injury-causing explosion would

occur in this case. The evidence in the record indicates that it was difficult if not impossible to

predict when an explosion would occur. Such unpredictability precludes Defendant or its agents

from having actual knowledge of an injury-causing explosion.

        Furthermore, Plaintiffs cannot prove that injury was certain to occur. While it may be true

that injury is certain to occur if people are present in a restricted area when a coal dust explosion

occurs, the test established by the Michigan Supreme Court requires that Plaintiffs prove that an

explosion or some other injury-causing event is certain to occur on start-up when the proper shut-

down procedure was not followed, as occurred in this case. Travis, 551 N.W.2d at 143. Plaintiffs

cannot prove that an explosion would occur on start-up every time that the shut-down procedure was

not followed. Id. (explaining that “[w]hen an injury is “certain” to occur, no doubt exists with


                                                   6
regard to whether it will occur. Thus, the laws of probability, which set forth the odds that

something will occur, play no part in determining the certainty of injury.”). Thus, it cannot be said

that Defendant or anyone working for Defendant knew that an explosion was certain to occur. Cf.

Sperle v. Mich. Dep’t of Corr., 297 F.3d 483, 496 (6th Cir. 2002) (“In the present case, the record

provides no evidence that any of the individual defendants were certain that Tammy Sperle's murder

was going to occur, even if we assume that Warden Jackson refused to make himself available to

receive a warning concerning a danger to Tammy Sperle's life.”)

        Finally, Plaintiffs cannot prove that Defendant willfully disregarded a risk. Neither

Defendant nor its agents were aware that Plaintiffs had returned to a restricted area. Like our recent

decision in Upsher v. Gross Pointe Pub. Sch. Sys., 285 F.3d 448, 455-56 (6th Cir. 2002), we find

that this case is closer to Travis than it is to Golec, in part, because Plaintiffs were not ordered to

continue working despite a demonstrable risk. Plaintiffs own testimony indicates that they returned

to the restricted area after informing their supervisor that they were finished and without informing

anyone before they returned. Plaintiffs argue that despite that fact, Defendant’s alleged knowledge

of the faulty public address system is enough to raise a triable issue of fact as to whether the injuries

they suffered were intentional. We disagree. If Defendant did indeed start the mill with the

knowledge that the public address system was faulty, such an act might be negligent, perhaps even

grossly so, but it would not be intentional under Michigan law. See id. (“Here, however, even if

we assume the asbestos-containing tiles constituted a "continuously operative dangerous condition,"

a fact we do not resolve, there is no evidence that any of the defendants knew this condition would

cause injury and refrained from informing the plaintiffs. The supervisor in Golec ordered the

plaintiff to return to work with full knowledge that the operating condition had recently resulted in


                                                   7
an injury-causing explosion. Here, the plaintiffs' proof shows merely that: (1) the defendants (and

we note only some of the individually named defendants) knew of the general dangers associated

with asbestos exposure; (2) the defendants did not provide adequate training regarding the proper

method for removing asbestos-containing tiles; and (3) the defendants did not provide adequate

protective devices such as clothing, air respirators, air monitoring, and the like.       While the

defendants' actions may have been negligent, or even grossly negligent, we conclude that the

plaintiffs' proof fails to establish that the defendants had actual knowledge that injury was certain

to occur and willfully disregarded that knowledge. The plaintiffs, therefore, are subject to the

exclusive remedies provided under the MWDCA and may not recover in this action.”). Because

Plaintiffs fail to raise a material question of fact, summary judgment was appropriate.

                                         CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s judgment.




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