Stephens v. Worden Insurance Agency, LLC

STATE OF MICHIGAN
COURT OF APPEALS
JENNIFER STEPHENS as assignee of JACK FOR PUBLICATION
EDWARD FRITZ, October 16, 2014
9:05 a.m.
Plaintiff-Appellant/Cross-Appellee,
v No. 314700
St. Clair Circuit Court
WORDEN INSURANCE AGENCY, L.L.C., LC No. 11-001276-NI
Defendant-Appellee/Cross-
Appellant,
and
DAVID SHAMALY,
Defendant-Appellee.
Before: BECKERING, P.J., and HOEKSTRA and GLEICHER, JJ.
PER CURIAM.
At issue in this appeal is the statute of limitations applicable to a claim that an insurance
agent secured insurance coverage other than that sought by the insured, leaving the insured liable
under circumstances where he expected coverage. Such negligent procurement and advice
claims sound in ordinary negligence, not malpractice. Accordingly, the three-year statute of
limitations found in MCL 600.5805(10) applies. The claim accrued when the insurer denied the
insured’s claim. As this lawsuit was brought within three years of the accrual date, we reverse
the circuit court’s summary dismissal on statute of limitations grounds and remand for continued
proceedings.
I. BACKGROUND
In 1998, Jack Fritz first approached agent David Shamaly at the Worden Insurance
Agency to secure workers’ compensation and general liability insurance for his construction
company. Fritz informed Shamaly that his company operated in several states, not just
Michigan, and that he required multistate coverage. From 1998 through 2008, Fritz operated
under workers’ compensation and general liability insurance policies issued by Hastings Mutual
Insurance Company, the latest taking effect on April 21, 2008. And Fritz apparently experienced
no loss outside of Michigan leading to a claim against the workers’ compensation policy.
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On June 7, 2008, Fritz’s company was engaged in a construction project in Florida.
Fritz’s employee, Charles Becker, fell from a ladder and was killed. Fritz contacted Shamaly to
report the accident, and Shamaly directed him to contact Hastings directly. When Fritz did so,
he learned that the accident would not be covered under the workers’ compensation policy
because it applied only to accidents occurring in Michigan.
On December 2, 2008, Becker’s widow and the personal representative of his estate,
Jennifer Stephens, filed suit against Fritz in a Florida circuit court. On September 22, 2010, Fritz
and Stephens reached a settlement, under which Fritz was liable for $5,000,000 to Stephens.
Stephens promised not to pursue collection against Fritz in exchange for assignment of Fritz’s
right to pursue indemnification against Worden, Hastings, and any other appropriate entity or
person liable in the coverage dispute.
As a result of the settlement agreement, Stephens filed the current action against Worden
Insurance Agency and its agent, Shamaly, in the St. Clair Circuit Court on May 31, 2011.
Following defendants’ first and unsuccessful motion for summary disposition on statute of
limitations grounds, the court permitted Stephens to file a three-count amended complaint.
Stephens’s first count is labeled “negligence” and alleged that Shamaly and Worden “provided
coverage which it specifically represented included the state of Florida,” despite that it did not.
Stephens asserted that Fritz relied upon that representation, as well as the certificates of
insurance “specifically expressing the fact that there was appropriate insurance coverage as
required by Florida laws.” Stephens accused Shamaly and Worden of breaching “the standard of
care of a reasonable and prudent agent” by failing to make sufficient inquiry to ensure the proper
level of coverage was in place. Worden breached its duty in failing to adequately supervise its
agent, Stephens complained. And Stephens suggested that the Hastings certificates of insurance
did not indicate that Florida coverage was in place when those certificates arrived at the Worden
agency and that defendants “xeroxed and whited out” the documents to make it appear that
coverage was available in Florida.
Stephens’s second count is entitled “special relationship.” Stephens contended that a
special relationship arose because Shamaly and Worden “negligently misrepresented the nature
and extent of the insurance coverage in Florida.” Defendants also voluntarily took on the duty to
advise Fritz regarding the adequacy of his coverage, rendering them liable for their negligence.
Moreover, defendants “entered into an agreement whereby [they] promised to provide coverage”
extending to Florida occurrences. Defendants expressed an expertise in this field but then
selected an insurance provider that does not write policies in Florida. Based on this special
relationship, Stephens continued, Fritz repeatedly relied upon defendants’ advice and purchased
whatever policies they recommended. The lack of coverage upon Becker’s death “was
secondary to the negligence and/or misrepresentation and/or breach of contract and/or breach of
the special relationship,” Stephens concluded.
The third count in the amended complaint alleged that Worden Insurance Agency was
vicariously liable for Shamaly’s acts. Shamaly was acting within the scope of his employment
and had implied actual authority to act on Worden’s behalf, rendering his employer liable.
Stephens asserted that Worden knew about and acquiesced in Shamaly’s acts as well. Stephens
noted that Shamaly “was the only person writing commercial accounts, including workers
compensation” and made decisions on behalf of the agency “concerning the practices of issuing
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Certificates of Insurance.” Each policy was produced on Worden’s behalf. And Shamaly
forwarded copies of Fritz’s certificate of issuance to many job sites in other states, including
Florida, despite that coverage did not actually exist in those states. Moreover, Worden placed
Shamaly in a position of authority in which he directed other employees to issue certificates of
insurance for work in other states when no such coverage existed. Stephens further alleged that
Shamaly violated company policies and industry practices under Worden’s supervision,
including by failing to confirm where work would be conducted prior to issuing a certificate of
insurance and failing to verify the existence of coverage. Worden was liable for Shamaly’s
transgressions because it allowed him too much freedom, presented him “as its sole commercial
producer to customers and clothed him in the appearance of knowledge and experience,” and
endorsed his representations. In addition, Stephens asserted, Worden ratified Shamaly’s acts
because it received a commission for the sale of insurance made on Shamaly’s
misrepresentations.
Defendants’ renewed their summary disposition motion contending that Stephens’s
claims sounded in malpractice and therefore were subject to the two-year statute of limitations.
MCL 600.5805(6); MCL 600.5838(1). In the alternative, defendants contended that Stephens’s
claims were subject to a three-year statute of limitations as an action seeking recovery for
damages to a person. MCL 600.5805(10). Under defendants’ theory, Stephens’s claims accrued
on April 21, 2008, when Fritz’s insurance policy was last renewed before Becker’s accident, and
the statute of limitations therefore expired five weeks before Stephens filed her suit.
Stephens responded that her claims sounded in negligence, breach of contract, and fraud,
rather than professional malpractice. She argued that her claims against the insurance agent were
common-law negligence claims that historically did not fall within the rubric of malpractice.
Therefore three and six-year statutes of limitations applied. Her claims were timely, Stephens
retorted, because they accrued either on June 7, 2008, when Becker died, or October 26, 2010,
when a judgment was entered in the Florida circuit court based on the Fritz-Stephens settlement
agreement.
The circuit court found that Stephens’s complaint was barred by the statute of limitations
and summarily dismissed her action under MCR 2.116(C)(7). Reviewing the manner in which
Stephens fashioned her claims, the court determined that they sounded in malpractice.
Specifically, Stephens cited the standards of care for an insurance agent and named expert
witnesses to testify to that standard. As her claims were filed beyond the two-year statute of
limitations, the court found them untimely.
II. APPLICABLE LEGAL STANDARDS
We review de novo the circuit court’s resolution of defendants’ summary disposition
motion. Kincaid v Cardwell, 300 Mich App 513, 522; 834 NW2d 122 (2013).
Summary disposition under MCR 2.116(C)(7) is appropriate when the
undisputed facts establish that the plaintiff’s claim is barred under the applicable
statute of limitations. Generally, the burden is on the defendant who relies on a
statute of limitations defense to prove facts that bring the case within the statute. .
. . Although generally not required to do so, a party moving for summary
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disposition under MCR 2.116(C)(7) may support the motion with affidavits,
depositions, admissions, or other admissible documentary evidence, which the
reviewing court must consider. . . . If there is no factual dispute, whether a
plaintiff’s claim is barred under the applicable statute of limitations is a matter of
law for the court to determine. [Id. at 522-523 (citations omitted).]
In reviewing a motion under (C)(7), the circuit court “must accept the nonmoving party’s well-
pleaded allegations as true and construe the allegations in the nonmovant’s favor. Diehl v
Danuloff, 242 Mich App 120, 123; 618 NW2d 83 (2000).
We also review de novo the question whether a claim is barred by the statute of
limitations and the issue of the proper interpretation and applicability of the limitations periods.
See City of Taylor v Detroit Edison Co, 475 Mich 109, 115; 715 NW2d 28 (2006); Adams v
Adams (On Reconsideration), 276 Mich App 704, 709; 742 NW2d 399 (2007).
III. STATUTES OF LIMITATION
The statutes of limitations for various actions brought in Michigan courts are set forth in
MCL 600.5805. That statute provides in relevant part:
(1) A person shall not bring or maintain an action to recover damages for injuries
to persons or property unless, after the claim first accrued to the plaintiff or to
someone through whom the plaintiff claims, the action is commenced within the
periods of time prescribed by this section.
***
(6) Except as otherwise provided in this chapter, the period of limitations is 2
years for an action charging malpractice.
***
(10) Except as otherwise provided in this section, the period of limitations is 3
years after the time of the death or injury for all actions to recover damages for
the death of a person, or for injury to a person or property.
MCL 600.5807 provides a six-year statute of limitations for general contract actions. “All other
personal actions” are subjected to a six-year statute of limitations “unless a different period is
stated in the statutes.” MCL 600.5813.
III. NATURE OF STEPHENS’S CLAIMS
The resolution of this case hinges on the proper characterization of Stephens’s claims. It
is well established under Michigan jurisprudence that a court is not bound by the label a party
assigns to its claims. Rather, we must consider “the gravamen” of the suit based on a reading of
the complaint as a whole. Buhalis v Trinity Continuing Care Svcs, 296 Mich App 685, 691-692;
822 NW2d 254 (2012). In this manner, we prevent a party from avoiding an applicable statute of
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limitations through “artful drafting.” Simmons v Apex Drug Stores, 201 Mich App 250, 253; 506
NW2d 562 (1993).
We reject Stephens’s argument that her claims could be characterized as sounding in
breach of contract. Such a claim would be founded on defendants’ breach of a contract with
Fritz to secure insurance that would cover his work in other states. Although the Supreme Court
has described “the relationship between the insurer and insured” as “a contractual one,” it has not
found a breach of contract for negligent advice and procurement of insurance. Harts v Farmer
Ins Exch, 461 Mich 1, 6-7; 597 NW2d 47 (1999). Rather, this Court has characterized an
insurance agent’s failure to procure requested insurance as a tort. Holton v A+ Ins Assocs, 255
Mich App 318, 324-325; 661 NW2d 248 (2003). See also Zaremba Equipment, Inc v Harco
Nat’l Ins Co, 280 Mich App 16, 37-38; 761 NW2d 151 (2008) (holding that an insurance agent
who does not procure the insurance coverage requested breaches his duty, suggesting a
negligence claim). Accordingly, the six-year statute of limitations described in MCL 600.5807
does not apply.
Stephens’s contention that her complaint sounded in fraud is equally without merit.
Fraud claims must be pleaded with particularity, addressing each element of the tort. Cooper v
Auto Club Ins Ass’n, 481 Mich 399, 414; 751 NW2d 443 (2008). To properly plead a fraud
claim, the plaintiff must allege that (1) the defendant made a representation that was material, (2)
the representation was false, (3) the defendant knew the representation was false, or his
representation was made recklessly without any knowledge of the potential truth, (4) the
defendant made the representation with the intention that the plaintiff would act on it, (5) the
plaintiff actually acted in reliance, and (6) the plaintiff suffered an injury as a result. Titan Ins
Co v Hyten, 491 Mich 547, 555; 817 NW2d 562 (2012).
Stephens did allege that defendants made a material representation that ultimately proved
false: that the workers’ compensation policy secured for Fritz would cover occurrences in
Florida. She also alleged that defendants intended Fritz to rely upon this representation in
purchasing insurance, which he did. Fritz suffered an injury as a result of the misrepresentation
when he was denied coverage for Becker’s Florida accident. However, Stephens did not plead
with particularity that defendants either knew the representation was false, or made it recklessly
without any knowledge of the potential truth. Stephens implies recklessness in her complaint by
asserting that defendants failed to contact Hastings Mutual and make proper inquiries when they
discovered that Fritz’s certificates of insurance did not mention Florida coverage. Stephens
alleges that defendants instead “xeroxed and whited out rather than investigated” information on
Fritz’s certificates of insurance. But Stephens never particularly states that such action was
taken to defraud Fritz or any customer requesting Fritz’s insurance information. She never even
identifies the information that was allegedly “whited out.” Absent assertions supporting the third
element with particularity, we cannot conclude that Stephens properly pleaded a fraud claim.1
1
Stephens may of course seek to amend her complaint to remedy its deficiency and plead fraud
with particularity. MCR 2.118(A)(2). If she can plead a fraud claim with particularity, it is
indisputable that the claim would not be time-barred as the statute of limitations for fraud claims
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The question remaining is whether Stephens’s claims sound in ordinary negligence or
malpractice. There is no statute within the Revised Judicature Act defining malpractice.
Defendants contend that malpractice liability adheres to licensed professionals in this state based
on MCL 600.5838(1). That statute governs the accrual of “a claim based on the malpractice of a
person who is, or holds himself or herself out to be, a member of a state licensed profession.”
Relying on this provision for a definition of malpractice would be “erroneous,” our Supreme
Court has concluded. Sam v Balardo, 411 Mich 405, 420; 308 NW2d 142 (1981). “[T]he
Legislature did not intend by [MCL 600.5838(1)] to state that every member of a state licensed
profession is necessarily subject to malpractice . . . .” Dennis v Robbins Funeral Home, 428
Mich 698, 704; 411 NW2d 156 (1987).2
Absent a statutory definition, our Supreme Court has repeatedly held that “malpractice”
must be given its common-law meaning. Local 1064, RWDSU AFL-CIO v Ernst & Young, 449
Mich 322, 329; 535 NW2d 187 (1995), citing Sam, 411 Mich at 424. In Sam, the Supreme Court
held that the statute of limitations found in MCL 600.5805(6) applies to those professions subject
to malpractice liability under the common law at the time the Revised Judicature Act was
enacted, i.e. 1915. Sam, 411 Mich at 424-425. That covered at least medical, legal, and dental
malpractice actions. Id. at 425, 428. The Legislature’s decision to categorize a claim against a
state licensed architect as “an action charging malpractice” logically defeats defendants’
argument that actions against all state-licensed professionals automatically qualify as malpractice
actions. MCL 600.5805(14).
In Local 1064, the Supreme Court provided further analysis for a court considering
whether a professional could be held liable under a malpractice theory. Local 1064 defined “the
common law” as “[t]hose rules or precepts of law in any country, or that body of its
jurisprudence, which is of equal application in all places, as distinguished from local laws and
rules,” as well as
[t]he embodiment of principles and rules inspired by natural reason, an innate
sense of justice, and the dictates of convenience, and voluntarily adopted by men
for their government in social relations. The authority of its rules does not depend
on positive legislative enactment, but on general reception and usage, and the
tendency of the rules to accomplish the ends of justice. [Id. at 329-330 (quotation
marks and citations omitted).]
is six years. MCL 600.5813; Boyle v Gen Motors Corp, 468 Mich 226, 228; 661 NW2d 557
(2003).
2
The Court of Appeals for the Sixth Circuit has conflated the accrual provision for nonmedical
malpractice actions with the definition of “malpractice” see Kutlenios v Unumprovident Corp,
475 Fed Appx 550, 553 (CA 6, 2012), as has this Court in unpublished opinions, see Malburg v
Degenais, unpublished opinion per curiam of the Court of Appeals, issued April 24, 2007
(Docket No. 275229), unpub op at 3. However, we are not bound by decisions of lower federal
courts or unpublished opinions of this Court. Petipren v Jaskowski, 494 Mich 190, 210; 833
NW2d 247 (2013); MCR 7.215(C)(1).
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This “embodiment of principles and rules inspired by natural reason” cannot be limited to a
review of only Michigan case law. Rather, “the traditional nature and origin of the common law
make it clear that a consideration of judicial decisions from other jurisdictions is not prohibited .
. . .” Id. at 330.
There are no precedentially binding Michigan cases holding insurance agents or agencies
liable under a malpractice theory. Rather, those cases in which an insurance agent failed to
procure the type or level of insurance sought by the client or provided negligent advice have
sounded in ordinary negligence. See Zaremba, 280 Mich App at 37-38; Holton, 255 Mich App
at 324-325; Haji v Prevention Ins Agency, 196 Mich App 84, 87; 492 NW2d 460 (1992);
Century Boat Co v Midland Ins Co, 604 F Supp 472, 482 (WD Mich, 1985). The same is true
throughout many of our sister states. See Alfa Life Ins Co v Colza, ___ So 2d ___ (Alaska,
2014), Docket No. 1111415, released May 9, 2014; Flemens v Harris, 323 Ark 421; 915 SW2d
685 (1996); Mark Tanner Constr v Hub Int’l Ins Servs, 224 Cal App 4th 574, 584-585; 169 Cal
Rptr 3d 39 (2014); Bayly, Martin & Gay, Inc v Pete’s Saire, Inc, 739 P2d 239 (Co, 1987);
Kaufman v CL McCabe & Sons, Inc, 603 A2d 831, 834 (Del, 1992); Miles v AAA Ins Co, 771 So
2d 607, 608 (Fla App, 2000); Peagler & Manley Ins Agency, Inc v Studebaker, 156 Ga App 786;
275 SE2d 385 (1980); Macabio v TIG Ins Co, 87 Haw 307, 318-319; 955 P2d 100 (1998); Lee v
Calfa, 174 Ill App 3d 101, 110; 528 NE2d 336 (1988); Indiana Restorative Dentistry, PC v
Laven Ins Agency, Inc, 999 NE2d 922, 933-934 (Ind App, 2013); Plaza Bottle Shop, Inc v Al
Torstrick Ins Agency, Inc, 712 SW2d 349 (Ky App, 1986); Graff v Robert M Swendra Agency,
Inc, 800 NW2d 112 (Minn, 2011); Busey Truck Equipment, Inc v American Family Mut Ins Co,
299 SW2d 735, 738 (Mo App, 2009); Chase Scientific Research, Inc v NIA Group, Inc, 96 NY2d
20; 725 NYS2d 592; 749 NE2d 161(2001); Baldwin v Lititz Mut Ins Co, 99 NC App 559, 561;
393 SE2d 306 (1990); Robson v Quentin E Cadd Agency, 179 Oh App 3d 298, 305; 901 NW2d
835 (2008); Avery v Diedrich, 294 Wis 2d 769, 771; 720 NW2d 103 (2006).
Declining to extend malpractice liability is also consistent with the role of insurance
agents. To qualify for an insurance agent license, a person must complete either 20 or 40 hours
of instruction through an accredited home study course, an insurance trade association program,
an authorized insurer, or an educational institution. MCL 500.1204a(1). At the conclusion of
that instruction, the applicant must pass a licensing exam. MCL 500.1204. Such limited
educational and licensing requirements are not commensurate with the “professions” generally
deemed subject to professional negligence liability, i.e., malpractice. As described in Garden v
Frier, 602 So 2d 1273, 1275 (Fla, 1992), a vocation is considered a profession subject to
professional malpractice if a higher level of education, such as a graduate degree, is required
before a license may be granted. Similarly, in Plaza Bottle Shop, 712 SW2d at 350-351, the
Kentucky Court of Appeals reasoned that entry into an occupation had to be more strenuous than
simple licensure provisions before professional malpractice liability could attach. To hold
otherwise would create malpractice actions against such unintended fields as cosmetology and
realty. The Kentucky court held that insurance agents “who need have no more education than a
high school diploma to qualify for a license” could not be held to a professional standard of care.
Id. at 351. The Michigan Supreme Court has even refused to extend malpractice liability to
some professions with high educational requirements for licensure, such as mortuary science.
See Dennis, 428 Mich at 704-705.
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Absent a common-law basis for subjecting insurance agents to professional malpractice
liability, the circuit court erred in applying the malpractice statute of limitations in this case.
Rather, Stephens raised an ordinary negligence claim. And the statute of limitations for ordinary
negligence claims is three years. Lemmerman v Fealk, 449 Mich 56, 63-64; 534 NW2d 695
(1995); MCL 600.5805(10).
IV. TIMELINESS OF STEPHENS’S CLAIMS
The parties also do not agree on the date on which Stephens’s claim accrued.3 The MCL
600.5805(10) describes that the limitations period expires “3 years after the time of the death or
injury for all actions to recover damages for the death of a person, or for injury to a person or
property.” The accrual of claims subject to this statutory period is governed by MCL 600.5827.
Trentadue v Buckler Automatic Lawn Sprinkler Co, 479 Mich 378, 387; 738 NW2d 664 (2007).
MCL 600.5827 describes that a “claim accrues at the time provided in [MCL 600.5829 to MCL
600.5838], and in cases not covered by these sections the claim accrues at the time the wrong
upon which the claim is based was done regardless of the time when damage results.” None of
the cited statutes relate to general negligence claims or more specifically to negligent
procurement or advice claims against an insurance agent. Accordingly, Stephens’s claims
accrued “at the time the wrong upon which the claim is based was done regardless of the time
when damage results.”
“For purposes of MCL 600.5827, the term ‘wrong’ refers to the date on which the
plaintiff was harmed by the defendant’s act, not the date on which the defendant acted
negligently because that would permit a cause of action to be barred before any injury resulted.”
Schaendorf v Consumers Energy Co, 275 Mich App 507, 512; 739 NW2d 402 (2007) (emphasis
added). A tort claim accrues “when all the elements of the claim have occurred and can be
alleged in a proper complaint.” Id.; see also Stephens v Dixon, 449 Mich 531, 534-535; 536
NW2d 755 (1995). Damages may recur after a claim accrues. But there must be an initial injury
for a claim to exist and it is that injury that triggers the running of the limitations period.
Marilyn Froling Revocable Living Trust v Bloomfield Hills Country Club, 283 Mich App 264,
289-290; 769 NW2d 234 (2009).
The accrual of a negligent procurement or advice claim is an issue of first impression in
Michigan. And the issue has received diverse treatment nationwide. Some jurisdictions have
held that the “wrong” occurs when the insurance agent commits his negligence by procuring
deficient coverage. See Kaufman, 603 A2d 831 (Delaware); Filip v Block, 879 NE2d 1076, 1082
(Ind, 2008);. Other jurisdictions delay the date of the injury because “[i]f no accident produces a
claim, the failure will have been negligence in the abstract.” Int’l Mobiles Corp v Corroon &
Black/Fairfield & Ellis, Inc, 29 Mass App Ct 215, 219; 560 NW2d 122 (1990). Therefore, some
jurisdictions have held that the claim accrues when the insured experiences the event for which
no coverage is available. Id., see also Cunningham v Ins Co of North America, 521 F Supp 2d
3
As Fritz assigned his rights to Stephens in settlement of her Florida lawsuit, Stephens’s claims
against the current defendants accrued on the date Fritz’s claims would have done so. MCL
600.5841.
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166, 172 (ED NY, 2006). Others assert that the claim accrues when insurance coverage is
ultimately denied. Broadnax v Morrow, 326 Ill App 3d 1074, 1081; 762 NE2d 1152 (2002);
Johnson & Higgins of Texas, Inc v Kenneco Energy, Inc, 962 SW2d 507, 514 (Texas, 1998).
Still others wait until the underlying coverage dispute has been resolved by litigation before
starting the clock on a negligent procurement claim. Blumberg v USAA Cas Ins Co, 790 So2d
1061; 1065 (Fla, 2001); Kosa v Ferderick, 136 Oh App 3d 837, 840; 737 NE2d 1071 (2000).
Today we hold that a negligent procurement or advice claim accrues when the insurer
denies the insured’s claim. On that date any speculative injury becomes certain, and the
elements of the negligence action are complete.
In this regard, we find Holton instructive. In Holton, 255 Mich App at 324, this Court
noted that “Michigan law recognizes a cause of action in tort for an insurance agent’s failure to
procure requested insurance coverage.” For comparative fault purposes, this Court described the
negligent procurement action “as arising out of an insurance claim.” Id. at 325 (emphasis
added). No negligence action can exist until a claim is made because, until that moment, there
can be no actual damage. See id. (“[P]laintiffs’ claim is that their damages occurred because of
inadequate insurance coverage, not because of the home fire.”). As the underlying event is not
the trigger for the cause of action, Becker’s death cannot be the accrual date for Stephens’s
claims. Similarly, the date on which defendants advised Fritz or procured the insurance policy,
or on which the policy took effect cannot be deemed the accrual date because any injury or
damage was merely speculative at that point.
Delaying accrual until the resolution of any coverage litigation is also insupportable
under Michigan law. The elements of the negligence claim are complete when the claim is
denied. Therefore, the insured can file its negligence action contemporaneously or even in
conjunction with its coverage dispute.
The record does not reveal the exact date when Fritz filed his claim with Hastings Mutual
or when Hastings Mutual denied coverage. The record instructs that Becker died on June 7,
2008, however, and the claim must have been filed and denied on or after that date. Fritz
therefore would have had until at least June 7, 2011, to file a negligent procurement and advice
suit against defendants. Stephens, as Fritz’s assignee, filed her complaint on May 31, 2011, a
full week before the earliest possible expiration of the statutory limitations period. Accordingly,
her claim was timely and the circuit court erred in dismissing it pursuant to MCR 2.116(C)(7).
V. VICARIOUS LIABILITY
Worden argues in the alternative that the circuit court could have dismissed Stephens’s
vicarious liability claims against it.4 Worden does not cite a court rule provision supporting
dismissal of this claim. As some discovery had been conducted augmenting the allegations in
4
Worden raised this challenge below, but the circuit court did not reach this issue because it
resolved the matter on statute of limitations grounds.
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Stephens’s complaint, we will review the propriety of Worden’s request under MCR
2.116(C)(10).
A motion under MCR 2.116(C)(10) “tests the factual support of a
plaintiff’s claim.” Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d 506
(2004). “Summary disposition is appropriate under MCR 2.116(C)(10) if there is
no genuine issue regarding any material fact and the moving party is entitled to
judgment as a matter of law.” West v Gen Motors Corp, 469 Mich 177, 183; 665
NW2d 468 (2003). “In reviewing a motion under MCR 2.116(C)(10), this Court
considers the pleadings, admissions, affidavits, and other relevant documentary
evidence of record in the light most favorable to the nonmoving party to
determine whether any genuine issue of material fact exists to warrant a trial.”
Walsh, 263 Mich App at 621. “A genuine issue of material fact exists when the
record, giving the benefit of reasonable doubt to the opposing party, leaves open
an issue upon which reasonable minds might differ.” West, 469 Mich at 183.
[Zaher v Miotke, 300 Mich App 132, 139-140; 832 NW2d 266 (2013).]
Worden contends that Shamaly acted outside the scope of his employment, negating any
claim of vicarious liability. Specifically,
Shamaly testified in his deposition . . . that if he had done as claimed[,] he would
have violated the policy of the Worden Agency to only procure issuance of
policies . . . in conformance with an insurer’s underwriting guidelines, since the
underwriting guidelines of Hastings Mutual . . . limited workers’ compensation
coverage only to work being performed in Michigan.
Stephens presented sufficient evidence to overcome summary disposition on this ground.
The doctrine of respondeat superior is well established in this state: An
employer is generally liable for the torts its employees commit within the scope of
their employment. . . . This Court has defined “within the scope of employment”
to mean “‘engaged in the service of his master, or while about his master’s
business.’” Independent action, intended solely to further the employee’s
individual interests, cannot be fairly characterized as falling within the scope of
employment. Although an act may be contrary to an employer’s instructions,
liability will nonetheless attach if the employee accomplished the act in
furtherance, or the interest, of the employer’s business. [Hamed v Wayne Co, 490
Mich 1, 10-11; 803 NW2d 237 (2011) (citations omitted).]
Here, Shamaly was acting in the interest of his employer, Worden. Although his sale of
insurance resulted in a commission for Shamaly, it also resulted in profit for Worden. It was
Shamaly’s job to secure commercial insurance policies for Worden’s customers. Shamaly acted
within the parameters of his job description when he procured the Hastings Mutual policy for
Fritz, even if his job performance was negligent or not in conformance with his employer’s
instructions. Accordingly, we reject Worden’s alternate ground for affirming the dismissal of
Stephens’s claims against it.
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We reverse and remand for continued proceedings consistent with this opinion. We do
not retain jurisdiction.
/s/ Jane M. Beckering
/s/ Joel P. Hoekstra
/s/ Elizabeth L. Gleicher
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