Norris v. State Farm Fire & Casualty Co.

581 N.W.2d 746, 229 Mich. App. 231

• Court: Michigan Court of Appeals
• Decided: July 29, 1998
• Docket: Docket 195422
• Status: Published

Opinions

Griffin, J.

Plaintiff appeals as of right an order granting summary disposition in favor of defendants regarding plaintiffs claims arising out of her discharge from employment. We reverse in part and affirm in part with regard to defendant Martha J. Piney and affirm with regard to defendants State Fitrm Fire and Casualty Company, State Farm Annuity and Life Insurance Company, State Farm General Insurance Company, State Farm Life Insurance Company, and State Farm Mutual Insurance Company.

i

Plaintiff, who suffers from rheumatoid arthritis, began working for defendant Martha J. Piney (Piney) in November 1994 as a probationary employee. Martha J. Piney is the owner and operator of the Piney Insurance Agency, which sells exclusively insurance policies written by defendants State Farm. On February 24, 1995, following a satisfactory three-month job performance review, defendant Piney offered and plaintiff accepted a position of regular employment as a claims specialist. However, less than three weeks later, on March 10, defendant Piney terminated plaintiffs employment for alleged poor job performance. Defendant Piney claims that the employment deficiencies noted in plaintiffs thirty- and sixty-day reviews had escalated to the extent that plaintiffs overall job performance was unsatisfactory. However, in her deposition, plaintiff alleges that at the conclusion of her March 10 meeting with defendant Piney, Piney admitted to plaintiff that the true reason for her discharge was “[i]t’s because you’re handicap [sic].”

Following her discharge, plaintiff filed suit against defendant Piney and defendants State Farm, alleging a variety of claims. The lower court granted summary disposition in favor of defendants pursuant to MCR 2.116(C)(10). Plaintiff appeals as of right the dismissal of her claims of alleged unlawful discrimination in violation of the Michigan Handicappers’ Civil Rights Act (HORA), MCL 37.1101 et seq.-, MSA 3.550(101) et seq., intentional infliction of emotional distress, and negligent supervision.

n

A motion for summary disposition pursuant to MCR 2.116(C)(10) tests the factual support for a claim. In Quinto v Cross & Peters Co, 451 Mich 358, 362-363; 547 NW2d 314 (1996), the Supreme Court set forth the following standards for deciding such a notion:

In reviewing a motion for summary disposition brought under MCR 2.116(C)(10), a trial court considers affidavits, pleadings, depositions, admissions, and documentary evidence filed in the action or submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion. A trial court may grant a motion for summary disposition under MCR 2.116(C)(10) if the affidavits or other documentary evidence show that there is no genuine issue in respect to any material fact, and the moving party is entitled to judgment as a matter of law. MCR 2.116(0(10), (G)(4).

In presenting a motion for summary disposition, the moving party has the initial burden of supporting its position by affidavits, depositions, admissions, or other documentary evidence. Neubacher v Globe Furniture Rentals, 205 Mich App 418, 420; 522 NW2d 335 (1994). The burden then shifts to the opposing party to establish that a genuine issue of disputed fact exists. Id. Where the burden of proof at trial on a dispositive issue rests on a nonmoving party, the non-moving party may not rely on mere allegations or denials in pleadings, but must go beyond the pleadings to set forth specific facts showing that a genuine issue of material fact exists. McCart v J Walter Thompson, 437 Mich 109, 115; 469 NW2d 284 (1991). If the opposing party fails to present documentary evidence establishing the existence of a material factual dispute, the motion is properly granted. McCormic v Auto Club Ins Ass’n, 202 Mich App 233, 237; 507 NW2d 741 (1993).

In the present case, plaintiff has established a genuine issue of material fact regarding whether she was unlawfully discriminated against because of her handicap. Plaintiff testified regarding an alleged admission by defendant Piney of employment discrimination based on her handicap. Because direct evidence of unlawful discrimination was presented, the burden-shifting approach of McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973), is not applicable. Harrison v Olde Financial Corp, 225 Mich App 601; 572 NW2d 679 (1997). Accordingly, the lower court erred in granting summary disposition on the basis that plaintiff failed to satisfy her burdens of production under McDonnell Douglas. As the Sixth Circuit Court of Appeals stated in Monette v Electronic Data Systems Corp, 90 F3d 1173, 1184 (CA 6, 1996):

[W]hen the plaintiff has direct evidence of discrimination based on his or her disability, there is no need for a McDonnell Douglas type burden shift and traditional burdens of proof will apply. . . . Nonetheless, the disabled individual always bears the burden of proving that he or she is “otherwise qualified” for the position in question, absent the challenged job function or with the proposed accommodation.

Because plaintiff presented direct evidence of unlawful discrimination, the pivotal issue is whether plaintiff submitted sufficient evidence to establish a genuine issue of material fact that she was qualified for the position from which she was discharged. Contrary to the position taken by the dissent, we conclude that plaintiff has sustained her burden for purposes of summary disposition. We are mindful that it is not the role of the court to evaluate the strength of the evidence in ruling regarding a motion for summary disposition. Rather, when deciding a motion for summary disposition that alleges no genuine issue of material fact,

[a] trial court tests the factual support of a plaintiff’s claim when it rules upon a motion for summary disposition filed under MCR 2.116(C)(10). Lichon v American Universal Ins Co, 435 Mich 408, 414; 459 NW2d 288 (1990). The court must consider the affidavits, pleadings, depositions, admissions, and documentary evidence submitted or filed in the action. The court is not permitted to assess credibility, or to determine facts on a motion for summary judgment. Zamler v Smith, 375 Mich 675, 678-679; 135 NW2d 349 (1965). Instead, the court’s task is to review the record evidence, and all reasonable inferences therefrom, and decide whether a genuine issue of any material fact exists to warrant a trial.⁷

[Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994). ]

Viewing the evidence in a light most favorable to the nonmoving party, we conclude that plaintiff presented sufficient evidence for a reasonable person to conclude that she was qualified for the job from which she was discharged. In particular, in a ninety-day performance review held less than three weeks before plaintiffs discharge,, defendant Piney evaluated plaintiffs job performance as satisfactory. In light of plaintiff’s satisfactory job performance, defendant Piney thereafter offered plaintiff a regular full-time position. Piney’s February 24, 1995, offer of permanent employment to plaintiff states as follows:

Gail Norris

Start Date: 11/7/94

2/24/94 [sic] Three month review. I have worked with Gail for three months and two weeks now. In three months she has proven to be a quick learner, very task oriented, and very dependable. At this time I am making an offer from temporary employment to holding the position of claims specialist for my agency with the hopes that Gail will continue to develop and grow as an expert in her position and continue to strive and reach the goals that are set for this agency.

Continued salary with benefit package as attached and presented at time of original start date.

2/24/95 /s/ Gail Norris 2/24/95 Is/ Martha J. Piney, agent

In addition to defendant Piney’s admissions regarding plaintiffs job qualifications, plaintiff also presented the deposition testimony of coemployees who noted no change in plaintiffs job performance in the period from February 24, 1995, until her discharge. Finally, although Piney claims that plaintiff was discharged because of poor customer-service skills, plaintiff submitted evidence that there were no complaints from customers regarding her job performance.

After recognizing that fact finding and assessment of credibility are inappropriate when ruling regarding a motion for summary disposition, Dzierbowicz v American Seating Co, 450 Mich 969; 544 NW2d 473 (1996); Crittenden v Chrysler Corp, 178 Mich App 324; 443 NW2d 412 (1989), we conclude that a genuine issue of material fact exists regarding whether plaintiff was qualified for the position at the time of her discharge.

m

Next, plaintiff claims that the lower court committed error requiring reversal in granting summary disposition in favor of defendants State Farm with regard to plaintiffs claims of unlawful discrimination and negligent supervision. We disagree. Regarding these issues, both sides claim that the appropriate test for respondeat superior liability is the economic-reality test as set forth in McCarthy v State Farm Ins Co, 170 Mich App 451; 428 NW2d 692 (1988). Although McCarthy appears to be applicable, we hold that McCarthy was wrongly decided and therefore should not be followed.¹ McCarthy relied on worker’s compensation cases in holding that respondeat superior liability should be decided on the basis of “the economic reality test.” However, after McCarthy, it is now well established that except for worker’s compensation benefits, the correct standard to assess respondeat superior liability is the control test, not the economic-reality test. Hoffman v JDM Associates, Inc, 213 Mich App 466, 468-469; 540 NW2d 689 (1995); Kral v Patrico’s Transit Mixing Co, 181 Mich App 226, 230-232; 448 NW2d 790 (1989). Cf. Meridian Mut Ins Co v Wypij, 226 Mich App 276; 573 NW2d 320 (1997).²

Here, plaintiff presented evidence of the economic dependency of defendant Piney on defendants State Farm. However, plaintiff presented no evidence that defendants State Farm had any right to control the employment decisions of Piney. Absent any right of control, there is no liability of defendants State Farm for the action of defendant Piney under the doctrine of respondeat superior. Hoffman, supra; Kral, supra.

Similarly, because defendants State Farm were not the employer of defendant Piney, defendants State Farm owed no duty to plaintiff regarding the claim of alleged negligent supervision of defendant Piney. See, generally, Janice v Hondzinski, 176 Mich App 49; 439 (1989). For these reasons, the lower court was correct in granting summary disposition in favor of defendants State Farm. Although the lower court’s decision was based on a different rationale, we will not reverse when the lower court reaches the correct result albeit for the wrong reason. Porter v Royal Oak, 214 Mich App 478, 488; 542 NW2d 905 (1995); State Mut Ins Co v Russell, 185 Mich App 521, 228; 462 NW2d 785 (1990).

IV

Finally, we conclude that the lower court correctly granted defendants’ motion for summary disposition regarding plaintiff’s claims of intentional infliction of emotional distress. Assuming the facts as alleged by plaintiff to be true, defendants’ conduct was not sufficiently outrageous to give rise to a separate cause of action for intentional infliction of emotional distress. Doe v Mills, 212 Mich App 73, 91; 536 NW2d 824 (1995).

For these reasons, we reverse in part and affirm in part with regard to defendant Piney and affirm with regard to defendants State Farm. Defendants State Farm may recover taxable costs. No costs in favor of plaintiff or defendant Piney, neither party having prevailed in full.

Corrigan, C.J., concurred.

7 As we noted in Durant [v Stahlin, 375 Mich 628, 646-647; 135 NW2d 392 (1965)], “there is a great difference between an inquiry to determine whether or not there is an issue of fact and a trial to decide a disputed issue of fact.”

1 McCarthy predates MCR 7.215(H) and its predecessors, Administrative Orders 1990-6, 1994-4, and 1996-4. Accordingly, McCarthy is not preeedentially binding on this Court.

2 Meridian addresses an employee exclusion in an insurance policy that does not define the term “employee.” The Meridian panel’s holding regarding the undefined insurance policy term is not applicable to the present case. To the extent that dicta in Meridian conflicts with our decision, we chose not to follow it and note that the Meridian panel was obligated to follow our prior decision, Hoffman v JDM Associates, Inc, supra,.