If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS SEBASTIAN KUHLGERT, Conservator of FOR PUBLICATION ELISABETH OSTENDORF, May 21, 2019 9:15 a.m. Plaintiff-Appellee, V Nos. 332442; 338363 Court of Claims MICHIGAN STATE UNIVERSITY, and LC No. 15-000047-MZ BOARD OF TRUSTEES OF MICHIGAN STATE UNIVERSITY, Defendants, and UNITED EDUCATORS, Intervening Defendant-Appellant. ELISABETH OSTENDORF, Plaintiff-Appellee, and UNITED EDUCATORS, Intervening Plaintiff-Appellant, and STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Intervening Plaintiff, -1- V No. 344533 MCAC MICHIGAN STATE UNIVERSITY, LC No. 17-000013 Defendant-Appellee. Before: SWARTZLE, P.J., and CAVANAGH and CAMERON, JJ. CAMERON, J. 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. We affirm. I. FACTS 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. II. PROCEDURAL BACKGROUND This case involves a lengthy, complicated procedural history. In March 2015, Ostendorf’s conservator, plaintiff Sebastian Kuhlgert (hereinafter “plaintiff”), commenced a negligence action in the Court of Claims against MSU and its Board of Trustees. Plaintiff did not file a claim for workers’ compensation benefits, and MSU did not report an injury to the workers’ compensation bureau. MSU has an excess liability insurance policy through UE, and -2- the policy does not provide coverage for any obligation for which the insured may be held liable under any workers’ compensation law. Over a ...
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