                          STATE OF MICHIGAN

                            COURT OF APPEALS



DAVID J MCQUEER,                                                     UNPUBLISHED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

v                                                                    No. 325619
                                                                     Grand Traverse Circuit Court
PERFECT FENCE COMPANY,                                               LC No. 2014-030287-NO

               Defendant-Appellee.


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

PER CURIAM.

       Plaintiff David McQueer appeals as of right from the trial court’s order granting
defendant Perfect Fence Company’s motion for summary disposition and denying his motion to
amend his complaint to add a claim for intentional tort and for breach of contract. For the
reasons stated in this opinion, we reverse.

                          I. FACTS AND PROCEDURAL HISTORY

         On January 14, 2014, while working for Perfect Fence Company, plaintiff was struck in
the head by the bucket of a Bobcat. Plaintiff explained that as part of his job, he had to install
fence posts with his supervisor Mike Peterson and Raymond Hauser, a coworker.1 Plaintiff
testified that, using different methods, they had installed more than ten posts before the accident.
According to both plaintiff and Robert Krumm, one of defendant’s owners, the proper way to
install the posts was to use an auger or hand-digger to dig the holes for the posts. However,
according to plaintiff, his supervisor Peterson had an “easier” method that involved using the
bucket of a Bobcat to push down on the fence posts in order to get them in the ground.

        According to plaintiff, they had used the Bobcat method before and Krumm had found
out about it. He stated that Krumm was “pissed” that Peterson was “even doing something like
that” and that he told Peterson not to do it. Plaintiff testified that Krumm stated something like,
“That’s dangerous as hell, you guys better not do that” and “You guys don’t do that no more like


1
  The parties presented conflicting evidence with regard to whether Peterson was, in fact,
plaintiff’s supervisor.



                                                -1-
that.” Krumm, however, testified that before the accident he did not know that his employees
were using the Bobcat method.

       Plaintiff testified that although Krumm told Peterson not do it again, Peterson was the
supervisor, so he had to do what Peterson wanted. Plaintiff added that, although he could have
walked away, there would have been repercussions, and he noted that “you just do what you got
to do when you’re on the job.”

        Plaintiff testified that at the time of the accident, he was sitting under the bucket of the
Bobcat without a hard hat. Plaintiff testified that while operating the Bobcat, Peterson “over-
calculated it” so “when he brought the bucket down it hit a water pocket or something and that’s
when it came all the way down” and “hit me on the top of the head.” He explained that the post
went further down than anyone anticipated.2

        Plaintiff was taken to the hospital by Peterson and testified that on the way, Peterson told
him not to tell anyone at the hospital that he was injured while working for defendant because
plaintiff was “not on the books” and there was no worker’s compensation for him.3 According to
plaintiff, after he was released from the hospital, Krumm and Barbara McCullen, defendant’s
accountant, visited him in his home. Plaintiff testified that Krumm and McCullen told him that
he was not covered by worker’s compensation insurance and they attempted to get him to sign
backdated documents indicating that he was an employee at the time of the accident. He stated
that when he refused, defendant stopped providing him with weekly checks to help him cover his
bills.4 According to McCullen, however, plaintiff was told that he was covered by worker’s
compensation.

        On April 10, 2014, plaintiff filed a complaint, alleging that defendant was negligent for
failing to obtain worker’s compensation insurance, for failing to supervise and train plaintiff’s
coworkers, for directing employees to grind metal fence posts without safety glasses, for
directing employees to “drive metal fence posts into frozen ground using a Bobcat bucket,” and
for failing to provide safety equipment.5 Defendant moved for summary disposition, arguing
that it had a worker’s compensation insurance policy with Accident Fund, so the exclusive
remedy provision of the worker’s disability compensation act (WDCA), MCL 418.131, barred
plaintiff’s tort claims.




2
    According to Krumm, Peterson did not recall what happened.
3
  There was conflicting evidence regarding whether it was defendant or plaintiff who insisted
that plaintiff be paid “off the books.”
4
  Krumm disputed plaintiff’s account of the meeting, asserting that plaintiff was never told that
there was no worker’s compensation insurance for him. Further, defendant asserted that the
checks to plaintiff stopped after he asked to continue receiving a $350 check once a week for two
years so that he could “get back on his feet.”
5
    The validity of the underlying claims is not an issue on appeal.



                                                  -2-
        The record reflects that defendant had maintained a workers disability compensation
insurance policy with Accident Fund since 2007, and the policy was in effect on the date of
plaintiff’s accident. Part One of the policy applied to worker’s compensation insurance, and Part
Two applied to general liability insurance.6 Additionally, defendant’s insurance policy provided
defendant would pay an estimated premium that would be adjusted following an audit. An audit
was coincidentally conducted on January 15, 2014—the day after plaintiff’s accident. The audit
covered the period from December 3, 2012 to December 3, 2013. It indicated that during that
period there were an average of nine employees, but that no sub-laborers were employed.
Plaintiff was not listed as an employee, even though he had been employed by defendant since
June 2013. McCullen testified that she provided plaintiff’s employment information to the
auditor, who then failed to properly list plaintiff as a subcontractor.

        On October 31, 2014, in opposition to defendant’s motion for summary disposition,
plaintiff asserted that his claim was not barred because defendant had violated MCL 418.611
when it failed to procure worker’s compensation insurance that applied to plaintiff, which meant
that pursuant to MCL 418.641(2), the exclusive remedy provision did not apply.

        On November 6, 2014, plaintiff also filed a motion to amend his complaint to add a claim
for intentional tort under MCL 418.131(1), another theory by which he could avoid the exclusive
remedy provision. He also sought to add a breach of contract claim for damages arising from
defendant’s decision to employ him “off the books,” which according to plaintiff resulted in
economic damages totaling somewhere between $2,500 and $4,000.7

        The trial court held oral argument on November 7, 2014. The court ordered supplemental
briefing because it was concerned with whether Accident Fund was required to pay worker’s
compensation benefits or whether it was merely paying benefits to plaintiff in order to avoid
greater liability as defendant’s general liability insurer. Following the supplemental briefing, the
trial court concluded that the exclusive remedy provision applied. The court found that even
taking the facts in the light most favorable to plaintiff—i.e., that defendant failed to disclose
plaintiff and his salary to Accident Fund in order to avoid paying a premium on him—Accident
Fund issued defendant an insurance policy in accordance with MCL 418.611 and the plain
language of MCL 418.621(2) required that policy to cover all defendant’s employees, including
undisclosed employees like plaintiff. The court also concluded that MCL 418.171(4) was not
triggered in this case because defendant did not hire a contractor whose employees were not
covered by a worker’s compensation policy. Further, the court found that even if MCL 418.171
was triggered, the purpose of defendant’s deception was to avoid paying a premium, not to avoid
providing worker’s compensation insurance.


6
  Plaintiff’s attorney submitted an affidavit, averring that two Accident Fund employees told him
that plaintiff was being paid pursuant to the general employer liability provision of the policy.
7
  The essence of the claim was that defendant had entered an implied contract with plaintiff
whereby plaintiff would work for defendant and defendant would pay and process his wages in
accordance with applicable laws, including withholding taxes, making disclosures regarding
plaintiff’s employment status, and making Social Security and Medicare contributions.



                                                -3-
        The trial court also denied plaintiff’s motion to amend, concluding that the intentional
tort claim was futile because plaintiff’s injury was not certain to occur and concluding that,
standing alone, the damages on the breach of contract claim were insufficient to reach the
jurisdictional minimum of circuit court. This appeal follows.

                         II. MOTION FOR SUMMARY DISPOSITION

        Plaintiff first argues that the trial court erred in granting defendant’s motion for summary
disposition because the exclusive remedy provision in MCL 418.131 does not apply because
MCL 418.611 and MCL 418.171 were violated.8

        MCL 418.131(1) provides that the right to recover worker’s compensation benefits under
the WDCA “shall be the employee’s exclusive remedy against the employer for a personal injury
or occupational disease.” However, MCL 418.641(2) provides that if an employer violates MCL
418.171 or MCL 418.611, then that employer’s employees “shall be entitled to recover damages
from the employer in a civil action because of an injury that arose out of and in the course of
employment notwithstanding the provisions of section 131.” In other words, if defendant
violated sections 171 or 611, then plaintiff is entitled to sue defendant in tort.

       “Section 611 governs worker’s compensation liability insurance coverage for
employers.” Blanzy v Brigadier General Contractors, Inc, 240 Mich App 632, 639; 613 NW2d
391 (2000). MCL 418.611(1) mandates that:

               (1) Each employer under this act, subject to the approval of the director,
       shall secure the payment of compensation under this act by either of the following
       methods:

                                              * * *




8
  This Court reviews de novo a trial court’s decision on a motion for summary disposition.
Latham v Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008). In reviewing a motion
for summary disposition under MCR 2.116(C)(10), a court considers “affidavits, pleadings,
depositions, admissions, and other documentary evidence submitted by the parties in the light
most favorable to the party opposing the motion.” Greene v A P Prods, Ltd, 475 Mich 502, 507;
717 NW2d 855 (2006) (internal quotations and citations omitted). The motion for summary
disposition “tests the factual support for a claim and should be granted if there is no genuine
issue as to any material fact and the moving party is entitled to judgment as a matter of law.”
MEEMIC Ins Co v DTE Energy Co, 292 Mich App 278, 280; 807 NW2d 407 (2011). A genuine
issue of material fact exists if the record, viewed in a light most favorable to the nonmoving
party, establishes a matter in which reasonable minds could differ. Allison v AEW Capital Mgt,
LLP, 481 Mich 419, 425; 751 NW2d 8 (2008). Further, the court may not make factual findings
on disputed factual issues during a motion for summary disposition and may not make credibility
determinations. Burkhardt v Bailey, 260 Mich App 636, 646-647; 680 NW2d 453 (2004).




                                                -4-
                (b) By insuring against liability with an insurer authorized to transact the
         business of worker’s compensation insurance within this state.

In this case, defendant secured worker’s compensation insurance from Accident Fund. Plaintiff
nevertheless asserts that defendant did not secure workers compensation insurance for him
because no premium was paid to Accident Fund for him. However, “[n]othing will be read into
a clear statute that is not within the manifest intention of the Legislature as derived from the
language of the statute itself.” Thomason v WCAC Contour Fabricators, Inc, 255 Mich App
121, 124-125; 662 NW2d 51 (2003). Here, nothing in the plain language of the statute requires
that the employer pay a premium for each employee in order to satisfy the requirements of
section 611. Moreover, even accepting that no premium was actually paid for plaintiff, nothing
in the statutory language permits an insurance company issuing a worker’s compensation policy
to avoid paying benefits to an employee on the basis that the employer failed to pay its premium.
Instead, MCL 418.621(2) mandates that an insurer issuing a policy must cover all of the insured
employer’s employees.9 Further, MCL 418.621(4)(g) provides that all policies issued pursuant
to the WDCA must include the following language regarding termination of the insurance
policy:

                 (g) That [the insurer] will file with the bureau of workmen’s compensation
         at Lansing, Michigan, at least 20 days before the taking effect of any termination
         or cancellation of this contract or policy, a notice giving the date at which it is
         proposed to terminate or cancel this contract or policy; and that any termination of
         this policy shall not be effective as far as the employees of the insured employer
         are concerned until 20 days after notice of proposed termination or cancellation
         is received by the bureau of workmen’s compensation[.] [emphasis added.]

This language, which appears in the worker’s compensation policy issued to defendant, clearly
indicates that, even if Accident Fund had cancelled the policy because of defendant’s failure to
pay a premium on all of its employees, said employees would still be covered until 20 days after
notice of the termination was received by the bureau of workmen’s compensation. Thus,
plaintiff cannot establish that defendant violated MCL 418.611.10




9
    MCL 418.621(2) provides:
                 The state accident fund and each insurer issuing an insurance policy to
         cover any employer not permitted to be a self-insurer under section 611 shall
         insure, cover, and protect in the same insurance policy, all the businesses,
         employees, enterprises, and activities of the employer.
10
  Plaintiff argues that there is a factual dispute as to whether defendant violated MCL 418.611
because he presented facts showing that Accident Fund was not paying benefits pursuant to the
worker’s compensation provision in defendant’s insurance policy and was instead providing
benefits pursuant to the general liability provision in the policy. Nevertheless, it is clear that,
pursuant to MCL 418.621(2), if an insurer issues a worker’s compensation policy to an



                                                 -5-
        Whether defendant violated MCL 418.171 is a more difficult question. MCL 418.171
extends the requirement to secure payment for worker’s compensation to “principals” who pay
contractors to execute work on their behalf. MCL 418.171 “addresses what are commonly
referred to as statutory employers.” McCaul v Modern Tile and Carpet, Inc, 248 Mich App 610,
620; 640 NW2d 589 (2001). “Section 171 was intended to protect employees of contractors and
subcontractors who failed to procure adequate worker’s compensation insurance.” Id.
“According to its plain language, subsection 171(4) provides independent contractors who would
otherwise be considered employees under the WDCA a vehicle for recovery where their
employer has attempted to circumvent the provisions of § 171 or § 611.” Id. at 620-621.

       MCL 418.171(4) provides in pertinent part:

               (4) Principals willfully acting to circumvent the provisions of this section
       or section 611 by using coercion, intimidation, deceit, or other means to
       encourage persons who would otherwise be considered employees within the
       meaning of this act to pose as contractors for the purpose of evading this section
       or the requirements of section 611 shall be liable subject to the provisions of
       section 641. [emphasis added.]

       Viewing the facts in the light most favorable to plaintiff, defendant employed plaintiff on
the condition that his employment would be “off the books.” Further, according to plaintiff’s
testimony, while he was being transported to the hospital following the accident, he was told by
Peterson to not tell the hospital that he was employed by defendant and that there was no
worker’s compensation coverage for him. Plaintiff also testified that a short while after he was
released from the hospital, Krumm and McCullen came to his home, told him that there was no
worker’s compensation coverage, and attempted to get him to sign paperwork backdating his
employment.11 On the other hand, defendant presented evidence that it was plaintiff’s idea to be
paid off the books and that defendant only reluctantly went along with it. Further, defendant
presented testimony from Krumm and McCullen that plaintiff was told that he was covered by
worker’s compensation insurance.

       Given the widely divergent proofs, it is clear that there is a genuine issue of material fact
as to whether defendant used “coercion, intimidation, deceit, or other means to encourage
persons who would otherwise be considered employees within the meaning of this act to pose as
contractors for the purpose of evading” liability under sections 171 or 611 of the WDCA.
Taking the facts as presented by plaintiff, defendant did use deceit, i.e., telling plaintiff that he
was not covered by worker’s compensation insurance and encouraging him to withhold his
employment status from medical personnel. It can be reasonably inferred that the purpose of the
deceit was to prevent plaintiff from making a claim for worker’s compensation benefits, which
would in turn allow defendant to avoid liability under sections 171 or 611 of the WDCA.


employer, then that insurer must provide coverage under that policy irrespective of whether
another provision of the insurance policy would also provide coverage for an injured employee.
11
  During oral argument before the trial court, plaintiff’s attorney represented to the court that
worker’s compensation benefits were only paid to plaintiff after he filed his complaint.



                                                -6-
Because there is a genuine issue of material fact on this issue, the trial court erred in granting
summary disposition in defendant’s favor.

                         III. MOTION TO AMEND THE COMPLAINT

      Plaintiff next argues that the trial court erred in denying his motion to amend his
complaint to add a claim for intentional tort and for breach of contract.12

       We first address whether the trial court abused its discretion in denying plaintiff’s motion
to amend his complaint to add a claim for intentional tort. As explained by our Supreme Court
in Travis v Dreis & Krump Mfg Co, 453 Mich 149, 188; 551 NW2d 132 (1996):

               [T]he issue whether the facts alleged by plaintiff are sufficient to
       constitute an intentional tort is a question of law for the court, while the issue
       whether the facts are as plaintiff alleges is a jury question. If the latter issue were
       for the court, all jury trials in this type of case would have been eliminated, and
       we find that this was not the intention of the Legislature. [Quoting McNees v
       Cedar Springs Stamping Co, 184 Mich App 101, 104; 457 NW2d 68 (1990).]

       MCL 418.131(1) provides in pertinent part:

               (1) 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


12
  We review for abuse of discretion a trial court’s denial of a motion to amend a complaint.
Sanders v Perfecting Church, 303 Mich App 1, 8-9; 840 NW2d 401 (2013). Although a trial
court has discretion:

       Amendment is generally a matter of right rather than grace. Patillo v Equitable
       Life Assurance Society of the United States, 199 Mich App 450, 456; 502 NW2d
       696 (1992). A trial court should freely grant leave to amend if justice so requires.
       MCR 2.118(A)(2). Leave to amend should be denied only for particularized
       reasons, such as undue delay, bad faith, or dilatory motive on the movant’s part,
       repeated failure to cure deficiencies by amendments previously allowed, undue
       prejudice to the opposing party, or where amendment would be futile. [Jenks v
       Brown, 219 Mich App 415, 419-420; 557 NW2d 114 (1996).

Here, the trial court stated that it was denying plaintiff’s motion to amend because the
amendments would be futile. “An amendment would be futile if (1) ignoring the substantive
merits of the claim, it is legally insufficient on its face; (2) it merely restates allegations already
made; or (3) it adds a claim over which the court lacks jurisdiction.” PT Today Inc v Comm’r of
the Office of Financial & Ins Serv, 270 Mich App 110, 143; 715 NW2d 398 (2006) (citations
omitted).




                                                 -7-
       actual knowledge that an injury was certain to occur and willfully disregarded that
       knowledge.

“An employer’s intentional conduct ‘is the requisite standard triggering the exception to the
[WDCA] exclusivity provision.’ ” Fries v Mavrick Metal Stamping, Inc, 285 Mich App 706,
713; 777 NW2d 205 (2009), quoting Gray v Morley (After Remand), 460 Mich 738, 742; 596
NW2d 922 (1999) (brackets in original). Our Supreme Court has held that “to state a claim
against an employer for an intentional tort, the employer must deliberately act or fail to act with
the purpose of inflicting an injury upon the employee.” Travis, 453 Mich at 172. There must be
a specific intent to injure, which may be proved with direct or circumstantial evidence. Id. at
172-173. In order to establish intent to injure using circumstantial evidence, a plaintiff must
establish (1) that the employer had “actual knowledge,” (2) that an injury was “certain to occur,”
and (3) that the employer “willfully disregarded” that knowledge. Id. at 173, 180. Critically, the
Supreme Court stated that an injury is “certain to occur” if an employee is subjected “to a
continuously operative dangerous condition” that his or her employer knew would cause an
injury. Id. at 178, 182, 186.

       On appeal, plaintiff argues that he presented evidence sufficient to rebut the claim that
amendment of his complaint was not futile and the trial court abused its discretion when it denied
his motion amend his complaint to add an intentional tort claim. We agree. If a plaintiff
presents a legal and a factual basis for a claim, the claim is not futile. See Dagen v Hastings Mut
Ins Co, 166 Mich App 225, 231; 420 NW2d 111 (1987) (holding that if a factual basis for a
claim is established, justice requires that leave to amend be granted); and PT Today Inc v
Comm’r of the Office of Financial & Ins Serv, 270 Mich App 110, 143; 715 NW2d 398 (2006)
(holding that a claim is not futile if it is legally sufficient on its face).

        A number of the intentional tort exception cases have dealt with industrial machinery, the
use of which presented the possibility of risk either by untriggered operation or a lack of proper
guarding. In those cases, courts have attempted to determine whether the possibility of
mechanical malfunction constituted a “continuously operative dangerous condition” and whether
this likelihood was so apparent that an employer had “actual knowledge” of it and the danger
was so manifest that the employer’s failure to take affirmative action to adjust or modify the
machine constituted a willful disregard of that knowledge. Application of this test in those cases
has proven difficult and variable.

        Fortunately, this case presents a different and simpler scenario. It does not involve a
malfunctioning machine; indeed, the Bobcat performed exactly as it was supposed to. Plaintiff
alleges and presents evidence that his supervisor, Peterson, was the direct creator of the
“continuously operative dangerous condition” by directing plaintiff to stand under the Bobcat
bucket. Plaintiff also presented evidence that a company owner, Krumm, witnessed Peterson’s
actions and stated, “That’s dangerous as hell, you guys better not do that” and “You guys don’t




                                                -8-
do that no more like that.”13 Given these statements, there is evidence that both Krumm and
Peterson were aware of the “continuously operative dangerous condition” and that Peterson acted
with willful disregard of that knowledge. This evidence was further supported by Krumm’s
deposition testimony that he had been around long enough to know when someone was going to
get hurt and that using the Bobcat method, “you’re guaranteed to get hurt.” He went on to testify
that there was “no way in heck [he would] ever tell somebody to stand under a bucket to do
that,” nor would he stand beneath the bucket himself.

       The trial court erred by ignoring this evidence and instead focusing on the probability that
injury would occur. This approach was rejected by the Supreme Court in Travis, where the
Court stated:

       When 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. at 174.]

Instead of determining whether an injury was probable on any given use of the Bobcat with a
man beneath it, the trial court should have determined whether Peterson subjected plaintiff “to a
continuously operative dangerous condition” that he knew would cause an injury. See id. at 178,
182, 186.

        In Travis, although a supervisory employee knew that a press was malfunctioning, our
Supreme Court concluded that the supervisory employee did not know the injury was “certain to
occur” because (1) the press only malfunctioned intermittently; (2) the supervisory employee
was willing to demonstrate how the press worked (which he likely would not have done if he
believed an injury was certain to occur); (3) the supervisory employee had just adjusted the
machine before assigning it to the plaintiff, which had previously alleviated the problem for at
least a couple of days; and (4) in the past the press had cycled so slowly that the other employees
had been able to avoid injury when the press malfunctioned. Id. at 182. On those facts, the
Court concluded that “injury was not certain to occur because plaintiff was not required to
confront a continuously operating dangerous condition.” Id. In this case, however, the Bobcat
method was not something that would only intermittently cause an injury. Peterson, the
supervisory employee, did not stand below the bucket in order to demonstrate what plaintiff was
supposed to do, and in fact, Krumm testified that he would not have stood under the bucket


13
   See Travis, 453 Mich at 173-174 (“A plaintiff may establish a corporate employer’s actual
knowledge by showing that a supervisory or managerial employee has actual knowledge that an
injury would follow from what the employer deliberately did or did not do.”).




                                                -9-
because an injury was guaranteed. Further, there is nothing on the record to indicate the danger
posed by the Bobcat method could be completely eliminated—albeit for a temporary period of
time—in order to render the process safe for one or two days at a time. Finally, there is nothing
in this record to indicate that plaintiff could have even avoided injury once the Bobcat bucket
pushed the post further into the ground than was expected. Thus, this case is distinguishable
from the facts in Travis.

        Instead, the facts in this case are closer to those in Golec, a case consolidated with Travis.
In that case, the plaintiff had to load wet scrap metal into a furnace. Id. at 157-158. Contained
within the scrap were aerosol cans, which the defendant contended the plaintiff was supposed to
remove before loading the scrap. Id. at 186. The plaintiff, however, alleged that he was loading
the scrap in the same fashion as he was trained. Id. at 186. While loading the scrap, an
explosion occurred and the plaintiff was severely burned. Id. at 159. On appeal, the plaintiff
argued that an injury was certain to occur because every load of scrap had the potential to
explode because there were aerosol cans mixed in it and the scrap was wet. Id. Our Supreme
Court agreed, concluding that if the facts alleged by the plaintiff were established, then the
plaintiff would have proved “the existence of a continually operative dangerous condition.” Id.
Much like the case in Golec, if the facts alleged by plaintiff are true, i.e., that he was ordered by
a supervisory employee to stand beneath the bucket of a Bobcat while his supervisor used the
bucket to push or pound the posts into the ground, then it is clear that plaintiff was exposed to the
existence of a continually operative dangerous condition because every time the bucket was used
the potential existed that it would knock the post too far, thereby resulting to injury to plaintiff.

        This case is also similar to the situation in Fries. In that case, this Court held that “every
encounter” between an employee’s loose clothing and a stamping machine “inherently embodied
the potential for inadvertent, unexpected cycling of the machine.” Fries, 285 Mich App at 716-
717. In that case, the evidence established that loose clothing could actuate the press, that the
employer took no steps to prevent it from occurring by installing available safety equipment, and
that the employer failed to warn the employee that loose clothing would actuate the press. Id. at
717. After review, this Court held that the facts alleged by the plaintiff and contained within the
record were sufficient for a reasonable jury to conclude that an injury was certain to occur, so the
trial court did not err in concluding that a jury question existed regarding whether the danger
presented by the stamping machine “constituted a continuously operative dangerous condition.”
Id.

        Because the facts as presented by plaintiff are sufficient to support a finding of
intentional tort, the trial court abused its discretion when it concluded such an amendment to the
complaint would be futile. Sanders, 303 Mich App at 8-9. Although further discovery may still
prove or disprove plaintiff’s allegations, at this juncture, plaintiff should be allowed to amend his
complaint to add an allegation of intentional tort.14



14
   Plaintiff also argues that he should be allowed to amend his complaint to add a claim for
breach of contract. The trial court denied plaintiff’s motion to add a claim for breach of contract
because, having granted defendant’s motion for summary disposition and denied plaintiff’s



                                                -10-
                                       IV. CONCLUSION

        Because defendant had a worker’s compensation policy, defendant did not violate MCL
418.611. There is, however, a genuine issue of material fact as to whether defendant violated
MCL 418.171(4) by using deceit to tell plaintiff he was not covered by worker’s compensation,
so we reverse the trial court’s order granting summary disposition on plaintiff’s negligence
claims. Further, we reverse the trial court’s denial of plaintiff’s motion to amend his complaint
to add a claim for intentional tort because plaintiff presented sufficient facts to establish that he
had a viable claim for intentional tort. Further, given our reinstatement of these claims, the
jurisdictional limits of the circuit court have been met and plaintiff should be allowed to renew
his motion to amend his complaint to add a count for damages based on defendant’s decision to
employ him “off the books.”

        Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.

                                                              /s/ Joel P. Hoekstra
                                                              /s/ Douglas B. Shapiro




motion to amend his complaint to add a claim for intentional tort, the breach of contract claim,
standing alone, was insufficient to meet the jurisdictional threshold of the circuit court. Given
our resolution of those issues, however, the court’s rationale no longer applies. Accordingly, on
remand the trial court should consider anew plaintiff’s motion to amend his complaint to add a
breach of contract claim.



                                                -11-
