Nastal v. Henderson & Associates Investigations, Inc , 471 Mich. 712 ( 2005 )

Taylor, C.J.

In this case, where plaintiff Ronald M. Nastal¹ alleges stalking by private investigators conducting surveillance, we granted leave to consider if, and when, such surveillance falls within the safe harbor in the stalking statute that exempts “conduct that serves a legitimate purpose.” MCL 750.411h(l)(c). The circuit court concluded that surveillance could serve a legitimate purpose but that, here, there was a genuine issue of material fact regarding whether the defendants’ surveillance continued to serve a legitimate purpose after it had been discovered. It thus determined that the viability of plaintiffs stalking claim depended upon a factual determination by the jury. The Court of Appeals affirmed the circuit court’s ruling on that issue.² We conclude that surveillance by licensed private investigators that contributes to the goal of obtaining information, as permitted by the Private Detective License Act, MCL 338.822(b)(i)-(v), is conduct that serves a legitimate purpose. In the present case, plaintiff failed to establish a genuine issue of material fact that the conduct here complained of ever ceased serving such purpose, notwithstanding the fact that plaintiff observed the investigators following him. We therefore reverse the judgment of the Court of Appeals and remand this case to the circuit court for entry of summary disposition in defendants’ favor.

I. FACTS AND PROCEDURAL HISTORY BELOW

Following a 1997 accident in which a tractor-trailer collided with plaintiff Ronald Nastal’s car, Nastal sued the tractor-trailer’s operator and owner, asserting negligence by the driver and seeking damages for a closed head injury. Defense of the action was undertaken by the owner’s insurance carrier, Citizens Insurance Company of America (Citizens).

In the course of discovery, neuropsychological and neurosurgery evaluations were undertaken. The neuropsychological expert concluded that Nastal was not suffering any residual deficits as a result of a brain injury and that he instead possessed a personality disorder known as “somatoform pain disorder” that caused him to perceive symptoms as being worse than can be objectively determined. The neurosurgery evaluation, undertaken at the behest of Nastal’s employer, concluded that, although he had previously been diagnosed with a remote mild head injury, the injury had been totally resolved and Nastal was able to return to work. Moreover, the physician who conducted that evaluation opined that Nastal appeared to be suffering from depression and recommended a psychiatric examination.

The action was referred to case evaluation pursuant to MCR 2.403,³ and the panel returned an award of $450,000 for plaintiff. Citizens rejected the award, deeming it excessive. Citizens also decided to again have plaintiffs medical records reviewed, refer plaintiff to Dr. Leon Quinn for a psychiatric examination, and have an investigation and surveillance of Nastal performed to monitor his activities.

On June 8,1999, Citizens’ adjuster, Penny Judd, sent a fax to Henderson & Associates Investigations, Inc. (Henderson), a licensed private investigation firm, requesting a background check, activities check, and surveillance of plaintiff. The particulars of how the surveillance was to be conducted were left to Henderson.

Conducting the first surveillance on Wednesday, June 30,1999, Andrew Conley, one of Henderson’s investigators, followed Nastal as he drove from his home. After surveilling him for forty-five minutes, Conley, because of the way Nastal began to drive, thought Nastal may have been attempting to determine if he was being followed by Conley’s vehicle. Following that, Nastal parked his car and entered a medical facility. Conley, unsure if Nastal was aware of the surveillance, waited outside in his car in a parking lot across the street. When Nastal did come out, he came over to Conley’s car and asked Conley if he was following him. Conley denied that he was, and Nastal replied by shouting profanities at him. Shortly thereafter, evidently alerted by the personnel of the medical facility, the local police appeared and spoke to Conley and Nastal. Nastal, agitated and cursing, repeated his concerns that he was being followed and that Conley had untruthfully denied following him. The officer told Nastal to calm down and shortly thereafter Conley left to call his supervisor, Gregory Henderson. Gregory Henderson instructed Conley to terminate the surveillance for that day because, as both Gregory Henderson and Conley testified, when the subject of surveillance has discovered the surveillance, there is little purpose in continuing it at that time because the subject will not act unaffectedly or naturally.

A week later, on July 6, 1999, Conley and another investigator, Nathaniel Stovall, followed Nastal in separate cars as he drove to a number of locations. After Nastal returned home later in the day, Conley and Stovall parked their cars in separate places near his house to observe his activities. Nastal apparently noticed Conley and Stovall and called the police. Conley testified that he not only did not speak to the police officers that day, but also was unaware of their presence, and further had no indication that Nastal had called them or was aware of the reactivated surveillance. Stovall testified that he spoke to the police officers and was told, not that Nastal had called, but that someone in the neighborhood had called to report a suspicious vehicle. Stovall indicated that a police inquiry of this sort is a frequent occurrence when doing surveillance and, accordingly, it did not cause him to necessarily think that Nastal was aware of the surveillance.

On July 7,1999, Henderson informed Judd that their surveillance had revealed that Nastal had been active, and that Nastal had confronted Conley on the first day of surveillance. Although Judd was concerned that Nastal might alter his activities because he was aware of the surveillance, she authorized further surveillance.

On July 8, 1999, an uneventful surveillance was conducted because plaintiff stayed at home all day. When informed of this, Judd stated that, because Nastal had confronted Conley at the beginning of the week and might suspect that he was being followed, surveillance should be discontinued for a few weeks. Gregory Henderson described this period of nonsurveillance as a “cooling off” period, and indicated that it is usually employed by private investigators when they are concerned that the subject of their surveillance has detected their presence.

Twenty-two days later, on July 31, 1999, Conley and Stovall, again in separate cars, followed Nastal to a mall. While so engaged, both Conley and Stovall indicated that Nastal got behind Conley’s car and appeared to be trying to write down Conley’s license plate number. Further, once in the parking lot of the mall, plaintiff also turned in tight circles and appeared to by trying to get behind Stovall’s car. Gregory Henderson, when made aware of this by a call from Conley, told both investigators to not terminate the surveillance because neither man could confirm that Nastal was actually aware that a surveillance was being conducted. Yet later, when Nastal began to attempt to evade Conley and Stovall, Henderson told Conley and Stovall to terminate the surveillance for that day because he believed it was no longer productive.

Dr. Quinn’s report was received in Citizens’ mail-room on Friday, July 30, 1999, but read by Judd early the next week. In the report, Dr. Quinn concluded that Nastal was primarily suffering from a depressive disorder and that there were undoubtedly more factors than just the 1997 accident causing his depression. He further recommended that plaintiff be referred to a psychiatrist or mental health clinic for treatment and that any surveillance being conducted be discontinued. He later explained that the recommendation to discontinue surveillance was based on his concern that the continued surveillance could make Nastal angry.

On August 4, 1999, Gregory Henderson called Judd and informed her that Nastal had again detected Conley and Stovall’s presence during the fourth surveillance on July 31, 1999. Judd told Gregory Henderson to stop conducting surveillance on the basis of Quinn’s recommendation and her belief that the surveillance was not proving to be productive.

Over a year later on September 19, 2000, plaintiff filed a civil action alleging, among others, a claim of civil stalking pursuant to MCL 600.2954 against Henderson, Conley, and Stovall. Defendants moved for summary disposition pursuant to MCR 2.116(C)(7), arguing that surveillance serves a legitimate purpose pursuant to MCL 750.411h(l)(c) and, thus, that one engaged in it cannot be guilty of stalking. They asserted that plaintiffs stalking claim was barred because of immunity granted by law. They also asserted that Nastal had failed to state a claim on which relief could be granted, MCR 2.116(C)(8), and that, in any event, even assuming surveillance could in some circumstances be transformed into stalking, Nastal had produced no genuine issue of material fact on that point, MCR 2.116(C)(10). In the alternative, defendants asserted that even if Nastal were emotionally distressed by the actions of defendants, which constitutes a requirement of the statute, MCL 750.411h(l)(c), the requirement that the actions also would have emotionally distressed a reasonable person could not be shown because no reasonable litigant could claim that pretrial discovery is emotionally distressing.

The circuit court denied defendants’ motion on the basis of its determination that defendants’ surveillance initially served a legitimate purpose but that a genuine issue of material fact existed regarding whether the surveillance continued to serve that purpose after plaintiff discovered it. The court did not address defendants’ alternative argument.

On appeal, the Court of Appeals affirmed the trial court’s ruling on that issue, concluding that a genuine issue of material fact existed regarding the legitimacy of the surveillance after plaintiff confronted Conley during the first surveillance because, as the Court of Appeals interpreted the record, it had been conceded by defendants that surveillance can serve no purpose after the subject discovers it. The panel also rejected defendants’ alternative argument on the basis that the issue whether a reasonable person would have suffered emotional distress as a result of defendants’ surveillance was a question for the trier of fact.

We granted defendants leave to appeal. 470 Mich 869 (2004).

II. STANDARD OF REVIEW

We review de novo the grant or denial of a motion for summary disposition. Kreiner v Fischer, 471 Mich 109, 129; 683 NW2d 611 (2004). Questions of statutory interpretation are also reviewed de novo. Id.

When interpreting statutes, our primary goal is to give effect to the intent of the Legislature. In re MCI Telecom Complaint, 460 Mich 396, 411; 596 NW2d 164 (1999). In doing so, our first step is to review the language of the statute itself. Id. The words used by the Legislature are given their common and ordinary meaning. Veenstra v Washtenaw Country Club, 466 Mich 155, 160; 645 NW2d 643 (2002); MCL 8.3a. If the statutory language is unambiguous, we must presume that the Legislature intended the meaning it clearly expressed and further construction is neither required nor permitted. Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999).

Defendants moved for summary disposition pursuant to MCR 2.116(C)(7), (8), and (10), but the circuit court relied on MCR 2.116(0(10) in denying defendants’ motion. A motion under MCR 2.116(0(10) tests the factual sufficiency of the complaint. Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). The trial court must consider the affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion. Maiden, supra at 120. Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law. MCR 2.116(0(10), (G)(4). Quinto v Cross & Peters Co, 451 Mich 358; 547 NW2d 314 (1996).

III. ANALYSIS

In the early 1990s, the Legislature sought to address the inadequacy of existing criminal law, common-law causes of action, and court-ordered personal protection orders in protecting those who are maliciously followed, harassed, or intimidated by stalkers. Therefore, in 1992, it followed the lead of approximately two dozen other states that had enacted legislation specifically aimed at stalking and the special problems and circumstances surrounding it by criminalizing the offenses of stalking, MCL 750.411h, and aggravated stalking, MCL 750.411L The Legislature also simultaneously amended the Revised Judicature Act to give a victim of stalking a civil action against the stalker, MCL 600.2954, with the elements of civil stalking being the same as those in the criminal statutes, MCL 600.2954(1).

Stalking is defined in MCL 750.411h(l)(d), which states:

“Stalking” means a willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested.

Accordingly, under Michigan civil and criminal law, stalking constitutes a willful course of conduct whereby the victim of repeated or continuous harassment actually is, and a reasonable person would be, caused to feel terrorized, frightened, intimidated, threatened, harassed, or molested.

In defining harassment, the Legislature stated:

“Harassment” means conduct directed toward a victim that includes, but is not limited to, repeated or continuing unconsented contact[⁴] that would cause a reasonable individual to suffer emotional distress and that actually causes the victim to suffer emotional distress. Harassment does not include constitutionally protected activity or conduct that serves a legitimate purpose. [MCL 750.411h(l)(c).]

Thus, there must be two or more acts⁵ of unconsented contact that actually cause emotional distress to the victim and would also cause a reasonable person such distress. In any event, however, conduct that is constitutionally protected or serves a legitimate purpose cannot constitute harassment or, derivatively, stalking.

It is that safe harbor of “conduct that serves a legitimate purpose” that is the linchpin of this case. MCL 750.411h does not itself define “conduct that serves a legitimate purpose.” Accordingly, because these are terms of common usage, we give them their plain and ordinary meaning by consulting dictionary definitions. Horace v City of Pontiac, 456 Mich 744, 755-756; 575 NW2d 762 (1998).

The Random House Webster’s College Dictionary (2001) defines “serve” as “to answer the purpose,” “to be in the service of; work for,” “to answer the requirements of,” or “to contribute to; promote.” It further defines “legitimate,” in part, as “according to the law; lawful,” “in accordance with established rules, principles, or standards,” “in accordance with the laws or reasoning; valid,” “justified, genuine.” Id. Thus, given the plain and ordinary import of the terms used by the Legislature, we conclude that the phrase “conduct that serves a legitimate purpose” means conduct that contributes to a valid purpose that would otherwise be within the law irrespective of the criminal stalking statute.

The defendants here, private investigators licensed pursuant to MCL 338.821 et seq., are authorized to “obtain[] information with reference to any of the following”:

(i) Crimes or wrongs done or threatened against the United States or a state or territory of the United States.

(ii) The identity, habits, conduct, business, occupation, honesty, integrity, credibility, trustworthiness, efficiency, loyalty, activity, movement, whereabouts, affiliations, associations, transactions, acts, reputation, or character of a person.

(iii) The location, disposition, or recovery of lost or stolen property.

(iv) The cause or responsibility for fires, libels, losses, accidents, or damage or injury to persons or property.

(v) Securing evidence to be used before a court, board, officer, or investigating committee. [MCL 338.822(b).]

Accordingly, surveillance,⁶ when it is conducted to obtain evidence concerning a party’s claim in a lawsuit, is valid and well within the law. Indeed, once involved in litigation, such as here, it is even more reasonable, in fact predictable, in a state such as Michigan that has a “strong historical commitment to a far-reaching, open and effective discovery practice,” Daniels v Allen Industries, Inc, 391 Mich 398, 403; 216 NW2d 762 (1974),⁷ that surveillance to secure or even lead to evidence is permitted “in order to narrow the range of disputed issues which might otherwise needlessly waste the parties’ and judicial resources.” Id. at 406, 412.

It is only when the surveillance ceases to serve or contribute to the purpose of securing the information permitted by MCL 338.822(b) that conduct would be outside the statutory safe harbor of MCL 750.411h(l)(c) and a civil action for stalking could be maintained.

Here, the circuit court and the Court of Appeals incorrectly concluded that there was a genuine issue of material fact concerning whether defendants’ surveillance ceased to serve a legitimate purpose once Nastal discovered it. There is no testimony to this effect. Rather, Conley, Stovall, and Gregory Henderson stated that once the subject of surveillance discovers that he is being observed, and the person performing the surveillance knows that the subject has detected his presence, any further surveillance of the subject at that particular time may serve no further purpose because the subject may modify his activities. Yet, as the testimony of both Gregory Henderson and Judd shows, they believed that further surveillance conducted at later times, especially after a cooling off period, could produce information useful to the case. Nastal produced no evidence to rebut this testimony as required by MCR 2.116(G)(4) and, therefore, failed to satisfy his burden of establishing that a genuine issue of material fact existed regarding whether defendants’ surveillance continued to serve a legitimate purpose. In such circumstances, summary disposition in favor of the moving party is required. Maiden, supra at 120.⁸ Accordingly, the trial court improperly denied defendants’ motion for summary disposition and the Court of Appeals improperly affirmed that denial.

IV CONCLUSION

Surveillance by a licensed private investigator is conduct that serves a legitimate purpose as long as the surveillance serves or contributes to the purpose of obtaining information, as permitted by MCL 338.822(b). Thus, surveillance conducted for and contributing to such purposes is beyond the stalking statute. The conduct at issue in this case served a legitimate purpose even after plaintiff observed the private investigators following him. Accordingly, the judgment of the Court of Appeals is reversed and the case is remanded to the circuit court for the entry of summary disposition in defendants’ favor.

Weaver, Corrigan, Young, and Markman, JJ., concurred with Taylor, C.J.

1 Plaintiff Irene Nastal’s claim is for loss of consortium, which is derivative. Therefore, we refer to Ronald Nastal as “plaintiff.”

2 Nastal v Henderson & Assoc Investigations, unpublished opinion per curiam of the Court of Appeals, decided October 30, 2003 (Docket No. 241200).

3 Case evaluation was referred to as mediation at the time it was conducted in the action. MCR 2.403, 2000 Staff Comment.

4 “Unconsented contact” is defined as:

[A]ny contact with another individual that is initiated or continued without that individual’s consent or in disregard of that individual’s expressed desire that the contact be avoided or discontinued. Unconsented contact includes, but is not limited to, any of the following:

(i) Following or appearing within the sight of that individual.

(ii) Approaching or confronting that individual in a public place or on private property.

(iii) Appearing at that individual’s workplace or residence.

(iv) Entering onto or remaining on property owned, leased, or occupied by that individual.

(v) Contacting that individual by telephone.

(vi) Sending mail or electronic communications to that individual.

(vii) Placing an object on, or delivering an object to, property owned, leased, or occupied by that individual. [MCL 750.411h(l)(e).]

5 MCL 750.411h(l)(a).

6 See Random House Webster’s College Dictionary (2001), which defines “surveillance” as “a watch kept over someone or something, esp. over a suspect, prisoner, etc.,” and Black’s Law Dictionary (6th ed), which defines it as “Oversight, superintendence, supervision. Police investigative technique involving visual or electronic observation or listening directed at a person or place (e.g., stakeout, tailing of suspects, wiretapping). Its objective is to gather evidence of a crime or merely to accumulate intelligence about suspected criminal activity.”

7 See also Dorris v Detroit Osteopathic Hosp, 460 Mich 26, 36; 594 NW2d 455 (1999), and Domako v Rowe, 438 Mich 347, 359; 475 NW2d 30 (1991). Discovery was liberalized in the General Court Rules of 1963 and opened even more expansively in the Michigan Court Rules of 1985. Domako, supra at 359.

8 The dissent would reverse the burden of proof requirement and call on the defendants to establish a legitimate purpose rather than requiring the plaintiff to create a genuine issue of material fact regarding the elements of his cause of action. In so holding, it is inconsistent with MCR 2.116(G)(4) and Maiden, supra.