LEVIN, District Judge.
This is a common law tort action by an employee of the Hill-MacIntosh Company, a subcontractor hereinafter referred to as the subcontractor, against the J. A. Utley Construction Company, the general contractor, hereinafter referred to as the general contractor, for injuries sustained while in the course of his employment with the subcontractor. The injuries resulted from a defective heating device supplied by the general contractor on a construction site.
The subcontractor was subject to the provisions of the Michigan Workmen's Compensation Law, and its compensation insurer has paid plaintiff the benefits he is entitled to under this statute. The general contractor moves to dismiss the complaint on the ground that the plaintiff's sole remedy was his award under the Workmen's Compensation Act.
The Act provides that:
This must be read with Section 15, Comp.Laws Supp. Mich.1956, § 413.15,12 M.S.A., Sec. 17.189 (Cum.Supp.1955), which provides:
The question presented is whether the general contractor is regarded by the statute as an "employer" of his subcontractor's employees or as a "third party" because if he is regarded as a third party he is not relieved of his common law tort liability.
Although it is a question of first impression in Michigan, there are numerous precedents in other states which have similar statutes. These decisions have held that a general contractor is not relieved of common law tort liability to his subcontractor's employees where the subcontractor's employees are covered by a Workmen's Compensation Act, even
The reason for this interpretation of the statute is found in Section 10(a) of the Act, which is set out in full in the margin.
Although it seems paradoxical, while a general contractor carries the risk of personal injury judgments in common law actions by hiring subcontractors who are covered by the Workmen's Compensation Act, he is only held to the limited employer's liabilities under the Act if he lets his work to subcontractors who do not comply with, or who are not covered by, the Act. However, I am not permitted to challenge the wisdom of the Michigan Legislature.
The cases cited by the defendant reaching a different result
I hold, therefore, that the defendant, general contractor, J. A. Utley Construction Company, is a third party and
"When any person as a principal contractor, undertakes to execute any work which is a part of his trade, business or occupation which he has contracted to perform and contracts with any other person as sub-contractor, for the execution by or under the sub-contractor, of the whole or any part of the work undertaken by the principal contractor, the principal contractor shall be liable to pay to any workman employed in the execution of the work any compensation under this Article which he would have been liable to pay if that workman had been immediately employed by him * * *." (Emphasis added.)