                        STATE OF MICHIGAN

                        COURT OF APPEALS



ACE AMERICAN INSURANCE COMPANY and              UNPUBLISHED
PACIFIC EMPLOYERS INSURANCE                     February 17, 2015
COMPANY,

           Plaintiffs-Appellees/Cross-
           Appellants,

v                                               No. 317501
                                                Court of Claims
WORKERS’ COMPENSATION                           LC No. 12-000096-MM
AGENCY/DIRECTOR,

           Defendant,
and

DOUGLAS GREEN, Trustee, MICHAEL T.
REID, Trustee, and KEVIN ELSENHEIMER,
Trustee,

           Defendants-Appellants/Cross-
           Appellees.


ACE AMERICAN INSURANCE COMPANY and
PACIFIC EMPLOYERS INSURANCE
COMPANY,

           Plaintiffs-Appellees/Cross-
           Appellants,

v                                               No. 317569
                                                Court of Claims
WORKERS’ COMPENSATION                           LC No. 12-000096-MM
AGENCY/DIRECTOR,

           Defendant-Appellant/Cross-
           Appellee,
and

DOUGLAS GREEN, Trustee, MICHAEL T.

                                          -1-
REID, Trustee, KEVIN ELSENHEIMER, Trustee,

                Defendants.


Before: K. F. KELLY, P.J., and SAWYER and METER, JJ.

PER CURIAM.

        In these consolidated cases, defendants appeal as of right from an order of the Court of
Claims granting plaintiffs’ motion for summary disposition under MCR 2.116(C)(9) (failure to
state a valid defense) and (10) (no genuine issue of material fact). We affirm.

       This dispute arose when two workers’ compensation insurers failed to properly identify
the employer they insured on several Form 4001 notifications submitted to the Workers’
Compensation Agency (WCA). Between May 28, 1999, and October 6, 2009, Delphi
Corporation was a WCA-approved self-insured employer in Michigan. Between October 2001
and July 2009, with the exclusion of one year between October 1, 2002, and October 1, 2003,
Delphi secured multi-state insurance policies from plaintiffs Pacific Employers Insurance
Company and ACE American Insurance Company to cover several of its subsidiaries that were
not qualified as self-insurers. Although the insurance policies covered only Delphi’s
subsidiaries, plaintiffs inaccurately listed Delphi as the insured employer on the Form 400s
submitted to the WCA.

        In 2005, Delphi filed for bankruptcy. Generally, when a self-insured employer becomes
insolvent, employees claiming workers’ compensation benefits may receive payments from the
Self-Insurers’ Security Fund (SISF) under MCL 418.537(1). However, on July 14, 2009, the
WCA and the SISF Funds Administration submitted an objection to the bankruptcy court,
announcing plaintiffs’ possible liability to Delphi employees in place of the SISF’s liability. The
following day, the WCA sent plaintiffs notice of their potential liability.

        On October 6, 2009, the bankruptcy court discharged all of Delphi’s workers’
compensation obligations under a plan of reorganization. On the day of discharge, plaintiffs
filed an adversary complaint in the bankruptcy court against Delphi, the SISF, and the WCA.
While the bankruptcy court considered plaintiffs’ adversary claims, the WCA director scheduled
a Rule 5 compliance hearing to determine whether plaintiffs were liable on Delphi’s 180
outstanding workers’ compensation claims due to the errors on the original Form 400s.
Thereafter, plaintiffs requested that this Court take superintending control over the matter and
dismiss the Rule 5 hearing. In response, the bankruptcy court issued the following stay order:




1
    See §625 of the Worker’s Disability and Compensation Act (WDCA), MCL 418.101 et seq.




                                                -2-
                The Michigan Workers’ Compensation Agency and the Michigan Funds
       Administration shall not seek alternative relief in respect to ACE American
       Insurance Company’s and/or Pacific Employers Insurance Company’s potential
       liability for workers’ compensation coverage of Delphi Corporation or Delphi
       Automotive Systems Corporation, in Michigan, or in any other forum, and no
       proceeding or action with respect to such alternative relief shall proceed in any
       material way . . . .

        Eventually, the bankruptcy court determined it had jurisdiction to decide the Form 400
issue. However, on appeal, the United States Court of Appeals for the Second Circuit held that
although the bankruptcy court had jurisdiction to decide the scope of the policies between Delphi
and plaintiffs, it did not have jurisdiction to decide plaintiffs’ liability for filing the inaccurate
Form 400s. In response, the bankruptcy court lifted its stay order on August 10, 2012, and
released the Form 400 issue for further proceedings in a Michigan forum. Three days later,
plaintiffs initiated this action in the Court of Claims.

        We review de novo a lower court’s grant of summary disposition, Maiden v Rozwood,
461 Mich 109, 118; 597 NW2d 817 (1999), as well as whether a court has subject-matter
jurisdiction over a claim, Sierra Club Mackinac Chapter v Dep’t of Environmental Quality, 277
Mich App 531, 544; 747 NW2d 321 (2008).

        Defendants argue that the one-year statute of limitations governing suits against the state
bars plaintiffs’ claims. Under MCL 600.6431(1), a claimant may not maintain a claim against
the state unless the claimant files “either a written claim or a written notice of intention to file a
claim” within one year after the claim has accrued. “‘[T]he time at which the claim accrues for
purposes of applying [a statute of limitations] depends on the type of relief sought.’” Tenneco
Inc v Amerisure Mut Ins Co, 281 Mich App 429, 455; 761 NW2d 846 (2008), quoting Taxpayers
Allied for Constitutional Taxation v Wayne Co, 450 Mich 119, 128 n 10; 537 NW2d 596 (1995).
Generally, a claim accrues in accordance with MCL 600.5827, which states: “Except as
otherwise expressly provided, the period of limitations runs from the time the claim accrues. . . .
[A]nd in cases not covered by [MCL 600.5829 to 600.5838] the claim accrues at the time the
wrong upon which the claim is based was done regardless of the time when damage results.”
However, when a suit for injunctive or declaratory relief seeks to prevent a future wrong, the
cause of action must necessarily arise before the wrong occurs. See Taxpayers Allied, 450 Mich
at 127.

       Specifically addressing how statutes of limitation apply to claims for declaratory relief,
the Michigan Supreme Court has instructed:

              “Limitations statutes do not apply to declaratory judgments as such.
       Declaratory relief is a mere procedural device by which various types of
       substantive claims may be vindicated. There are no statutes which provide that
       declaratory relief will be barred after a certain period of time. Limitations periods
       are applicable not to the form of the relief but to the claim on which the relief is
       based.” [Id. at 128, quoting Luckenbach Steamship Co v United States, 312 F2d
       545, 548 (CA 2, 1963).]


                                                 -3-
Claims for declaratory relief are “not merely [claims] for abstract declarations of rights divorced
from a factual context.” Taxpayers Allied, 450 Mich at 128.

         When a claimant pursues an action for declaratory relief after a substantive harm has
already occurred, “[d]eclaratory relief may not be used to avoid the statute of limitations for
substantive relief.” Id. at 129. However, when a claimant uses a claim for declaratory relief as a
shield from a threat of future or potential harm, “the statute of limitations [does] not bar an
otherwise valid claim for declaratory relief because it would derive from a claim for injunctive
relief, which is not barred.” Id.

        In the instant case, plaintiffs’ claims for declaratory relief were not based on a substantive
harm that had already occurred because defendants had not yet required plaintiffs to pay any
workers’ compensation claims for Delphi employees. Defendants argue that the July 2009 notice
sent to plaintiffs by the WCA caused plaintiffs’ claim to accrue because it put them on notice of
potential liability. However, this notice implied only the existence of a potential future liability
for Delphi employees’ claims. Moreover, the bankruptcy court specifically prohibited
defendants from pursuing any substantive legal action against plaintiffs before August 10, 2012,
through the stay order issued during Delphi’s bankruptcy proceeding. Because plaintiffs’ claims
for declaratory relief were premised on a threat of future harm, the Court of Claims correctly
held that the one-year statute of limitations found in MCL 600.6431(1) did not bar plaintiffs’
claims.

        Defendants next argue that the Court of Claims lacked subject-matter jurisdiction to hear
plaintiffs’ claims. MCL 418.841(1) provides:

                 Any dispute or controversy concerning compensation or other benefits
         shall be submitted to the bureau and all questions arising under this act shall be
         determined by the bureau or a worker’s compensation magistrate, as applicable.
         The director may be an interested party in all worker’s compensation cases in
         questions of law. [Emphasis added.]

Yet, under MCL 600.6419(1)(a), the Court of Claims retains exclusive2 subject-matter
jurisdiction over the following:

                 To hear and determine any claim or demand, statutory or constitutional,
         liquidated or unliquidated, ex contractu or ex delicto, or any demand for
         monetary, equitable, or declaratory relief or any demand for an extraordinary writ
         against the state or any of its departments or officers notwithstanding another law
         that confers jurisdiction of the case in the circuit court. [Emphasis added.]

Also, “[t]he court of claims does not have jurisdiction of any claim for compensation under . . .
[t]he worker’s disability compensation act of 1969.” MCL 600.6419(3)(a) (emphasis added).



2
    There are certain exceptions. See MCL 600.6419(1).


                                                 -4-
       Defendants contend that MCL 600.6419(3)(a) bars plaintiffs’ claims because this case
involves a defense to claims “for compensation.” Because the WDCA does not define the word
“compensation” for purposes of the statutory scheme, we will consider the plain meaning of the
word. See McCormick v Carrier, 487 Mich 180, 192; 795 NW2d 517 (2010). In this endeavor,
we turn to the dictionary to aid us in determining its “common meaning.” Id. at 195. Random
House Webster’s College Dictionary (1997) defines “compensate,” in relevant part, as “to
recompense for something” and defines “compensation,” in relevant part, as follows:

       1. the act of compensating. 2. the state of being compensated. 3. something
       given or received for services, debt, loss, injury, etc.; indemnity; reparation;
       payment.

        Although the ultimate resolution of this case will have an ancillary effect on who is liable
to pay workers’ compensation claims, neither plaintiffs nor defendants asserted a claim for
reparation or payment before the Court of Claims. Allowing any claim affecting liability to bar
the jurisdiction of the Court of Claims would expand the meaning of the statutory phrase “for
compensation” beyond its plain and ordinary meaning. Plaintiffs’ claims were not claims “for
compensation” barred by MCL 600.6419(3)(a).

        Defendants argue that the WCA possesses exclusive jurisdiction over this matter because
the claims arose under the WDCA. We have stated that “‘where it is obvious that the cause of
action is not based on the employer/employee relationship,’” the WCA does not retain exclusive
jurisdiction over claims potentially involving the WDCA. Zarka v Burger King, 206 Mich App
409, 411; 522 NW2d 650 (1994), quoting Buschbacher v Great Lakes Steel Corp, 114 Mich App
833, 838; 319 NW2d 691 (1982). We note that the instant case does not implicate any issues
involving an employer-employee relationship and instead turns on the scope of two insurers’
contracts and liability. In addition, the Michigan Supreme Court has held that pursuant to MCL
600.6419(1)(a), the Court of Claims has exclusive jurisdiction over all “contract-based claim[s]
for declaratory relief against a state agency” and over all declaratory-judgment actions against
the state that “involve contract . . . .” Parkwood Ltd Dividend Housing Ass’n v State Housing
Dev Auth, 468 Mich 763, 772-773; 664 NW2d 185 (2003). Here, plaintiffs sought declaratory
relief against the state, asserting that they were not liable to Delphi employees under either their
original contracts with Delphi subsidiaries or any statutory contracts allegedly created by the
improper filing of Form 400s. Considering all the circumstances, we conclude that plaintiffs’
claims for declaratory relief against the state vested the Court of Claims with jurisdiction.

        Finally, defendants assert that MCL 418.625, read in harmony with the rest of the
WDCA, creates insurer liability with respect to all information listed on a Form 400. When
interpreting statutes, the primary goal of the judiciary is to ascertain and give effect to the intent
of the Legislature. Neal v Wilkes, 470 Mich 661, 665; 685 NW2d 648 (2004). “This task begins
by examining the language of the statute itself.” Sun Valley Foods Co v Ward, 460 Mich 230,
236; 596 NW2d 119 (1999). “When the Legislature has unambiguously conveyed its intent in a
statute,” judicial interpretation is neither necessary nor permitted. Koontz v Ameritech Servs,
Inc, 466 Mich 304, 312; 645 NW2d 34 (2002). Thus, a court may go beyond the words of the
statute to ascertain legislative intent only where the statutory language is ambiguous. Sun Valley,
460 Mich at 236. In interpreting the impact of statutory language, we consider the plain meaning
of the words at issue and their placement and purpose in the statutory scheme.” Id. at 237.

                                                 -5-
      When an employer chooses to use a third-party insurer under the WDCA (see MCL
418.611[1][b]), MCL 418.625 requires the insurer to file a Form 400:

               Each insurer . . . issuing an insurance policy covering worker’s
       compensation in this state shall file with the director, within 30 days after the
       effective date of the policy, a notice of the issuance of the policy and its effective
       date. A notice of issuance of insurance, a notice of termination of insurance, or a
       notice of employer name change may be submitted in writing or by using agency-
       approved electronic filing and transaction standards and may be submitted by the
       insurer directly or by the compensation advisory organization of Michigan on
       behalf of the insurer. . . .

MCL 418.621(1) requires that “[e]very contract for the insurance of the compensation . . . shall
be subject to the provisions of the act and provisions inconsistent with [the] act are void.”
Defendants argue that because an insurer that files a Form 400 with the WCA certifies that their
coverage complies with the WDCA, the Form 400, rather than the insurance policy, creates or
destroys the reality of coverage.

        As noted above, MCL 418.625 requires insurers to file “a notice of the issuance of the
policy . . . .” Random House Webster’s College Dictionary (2000) defines “notice,” in pertinent
part, as follows:

       1. information, warning, or announcement of something impending; notification:
       to give notice of one’s intentions. 2. a written or printed statement conveying
       such information or warning: to post a notice. 3. a notification by one of the
       parties to an agreement, as for employment, that the agreement will terminate on a
       specified date: She gave her employer two-weeks’ notice. [Emphasis in original.]

The word “notice” indicates an announcement, warning, or information about some other item.
Thus, the Legislature distinguished between the mandated notice of issuance of insurance and the
underlying policy of insurance. Accordingly, the function of a Form 400 is to indicate, inform,
or announce the existence of an underlying insurance obligation, but not to create that obligation.

        Moreover, MCL 418.625 does not require an insurer to file a Form 400 until “30 days
after the effective date of the policy . . . .” Thus, the Legislature understood that an insurance
policy becomes effective and enforceable prior to and independent of an insurer filing a Form
400. Although defendants correctly recognize that an underlying policy of insurance may be
involuntarily altered based on the requirements of the WDCA, it does not follow that this
possibility of statutory alteration somehow creates a statutory contract through the filing of a
Form 400.

        Defendants also argue that in Zielke v A J Marshall Co, 306 Mich 474; 11 NW2d 209
(1943), and Burhans v Central States Produce Corp, 313 Mich 124; 20 NW2d 835 (1945), the
Michigan Supreme Court held that the forms filed with the WCA, and not the underlying policies
of insurance, determined the scope of insurance coverage.             Zielke and Burhans are
distinguishable from the present case because both involved situations where an underlying
insurance policy at some point in time covered the allocated risk. Further, in the years following

                                                -6-
Zielke and Burhans, the Michigan Supreme Court has come to different conclusions. See, e.g.,
McQueen v Great Markwestern Packing Co, 402 Mich 321; 262 NW2d 820 (1978) (holding that
the WDCA did not permit a court to expand certain insurance coverage that did not exist in an
underlying policy), and Kenney v AAA Delivery Serv, 391 Mich 454; 216 NW2d 760 (1974)
(holding that an insurer was not liable on a claim merely for failing to file a notice of termination
at a certain time).

        Defendants also contend that if a Form 400 is merely a mechanism of notice and does not
create statutory liability, the WCA will be unable to enforce the WDCA without reviewing every
insurance policy of the nearly 240,000 employers in Michigan. Where the meaning of a statute
can be determined by its plain language, we will not consider extrinsic evidence or contrary
policy arguments to ascertain legislative intent. See People v Haynes, 281 Mich App 27, 29; 760
NW2d 283 (2008) (setting forth the general rules of statutory construction). Plaintiffs were not
liable to Delphi employees simply because of the filing of inaccurate Form 400s.

       Having determined that a Form 400 does not create contractual liability, we need not
address plaintiffs’ arguments on cross-appeal.

       Affirmed.

                                                              /s/ Kirsten Frank Kelly
                                                              /s/ David H. Sawyer
                                                              /s/ Patrick M. Meter




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