Order Michigan Supreme Court

Lansing, Michigan 

November 14, 2008 Clifford W. Taylor,

 Chief Justice 

135702 Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Maura D. Corrigan 

Robert P. Young, Jr. JANEANE WILCOX, Stephen J. Markman, 

Plaintiff-Appellee, Justices 

v SC: 135702 

 COA: 275329 

Oakland CC: 06-071889-CK 

JOHN B. MUNGER, Personal Representative of

the Estate of Keith Phillip Heika,

Defendant,
 and 

MICHIGAN MUNICIPAL RISK MANAGEMENT 

AUTHORITY,

 Defendant-Appellant. 

_________________________________________/ 

On order of the Court, the application for leave to appeal the December 20, 2007 

judgment of the Court of Appeals is considered, and it is DENIED, because we are not 

persuaded that the question presented should be reviewed by this Court. 

MARKMAN, J. (concurring.) 

Although I agree with the result reached by the Court of Appeals, I respectfully 

disagree with aspects of its analysis. 

While on duty as a police officer, Officer Keith P. Heika sexually assaulted 

Janeane Wilcox. After Heika committed suicide, Wilcox sued both Heika’s estate and 

the Michigan Municipal Risk Management Authority (MMRMA). The MMRMA 

provides its members coverage for “personal injury” and “wrongful act[s]” that result in 

an award of money damages. As defined in the MMRMA’s policy, personal injury 

consists of the “violation of civil, statutory or constitutional rights, discrimination or 

harassment arising out of employment or law enforcement operations.” Only “members” 

are covered by this policy, which encompasses any employee “while acting within the 

scope of their official duties or operations on behalf of the Member [employer].” Thus, 
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the question becomes whether Heika was a member acting within the scope of his official 

duties or operations on behalf of his employer. 

In Zsigo v Hurley Med Ctr, 475 Mich 215, 221 (2006), this Court held that an 

employee who sexually assaults a victim while “‘purport[ing] to act or to speak on behalf 

of the principal . . . or [who] was aided in accomplishing the tort by the existence of the 

agency relationship’” is “‘clearly [acting] outside the scope of [his] employment.’” 

(Citation Omitted.) Thus, we have concluded that an employee who would have been 

unable to commit a tort “but for” his status as an employee is not acting within the scope 

of his employment. Despite Zsigo, the Court of Appeals, in concluding that Heika was a 

covered member acting within the scope of his employment, stated that “but for Heika’s 

status as a police officer and his response to a call as part of his official duties he would 

not have gone inside plaintiff’s home,” where the assault occurred. Wilcox v Munger, 

unpublished opinion per curiam of the Court of Appeals, issued December 20, 2007 

(Docket No. 275329), at 3. Because Zsigo explicitly rejected this “but for” analysis, the 

Court of Appeals erred, in my judgment, in ignoring this Court’s directive regarding what 

falls outside the scope of one’s employment. 

The Court of Appeals also offered a separate rationale for why Heika was acting 

within the scope of his employment. Without specifically referencing Zsigo, the Court of 

Appeals noted that the MMRMA’s policy purported to cover personal injury including 

“‘violation[s] of civil, statutory or constitutional rights, discrimination or harassment,’” 

id., which Zsigo would have excluded. In rejecting the MMRMA’s definition of “scope 

of employment,” which was based on Zsigo, the Court of Appeals stated that, “[p]er the 

coverage documents, Heika is afforded coverage for the claim of sexual assault (wrongful 

act) committed while he was acting within the scope of his employment, yet by virtue of 

committing the personal injury (or wrongful act) action, is deemed to have not been 

acting within the scope of his employment.” Id. The Court of Appeals reasoned that this 

result is "ambiguous" and that such ambiguity must be resolved against the drafter 

(MMRMA), thereby entitling Heika to coverage. The Court of Appeals rationale again, 

in my judgment, is incorrect. 

Courts should be exceedingly loath to find ambiguity, because there is rarely any 

clearcut rule of decision-making under such circumstances and decisions often tend to 

partake of quasi-legislative exercises of judicial power. As this Court stated in Lansing 

Mayor v Pub Service Comm, 470 Mich 154, 165-166 (2004), ambiguity does not exist 

unless two provisions “irreconcilably conflict” with one another or when one provision is 

“equally susceptible” to more than one meaning. The MMRMA’s policy, while perhaps 

unclear or could have been more precise, is not ambiguous. When analyzing the 

definition of “personal injury” in conjunction with “scope of employment,” the MMRA's 

policy is explicable under Zsigo because it can reasonably be interpreted to provide 

coverage to an employee who infringes the rights of another at the instruction of the 
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employer. For example, this policy would cover a situation in which a police department 

routinely encourages, or requires, its officers to arrest a disproportionate number of 

minorities or discriminate against women when hiring. This interpretation would give 

full effect to the MMRMA’s policy, which covers members who are violating the rights 

of other individuals with the approval of their employers, while simultaneously giving 

due deference to this Court’s definition of “scope of employment” in Zsigo. Thus, the 

Court of Appeals is incorrect that the policy’s coverage of personal injury cannot be read 

in harmony with Zsigo’s definition of scope of employment. However, despite my 

disagreement with the Court of Appeals’ analysis, I believe that it correctly concluded 

that Heika is entitled to coverage. 

The MMRMA’s policy covers both “personal injury” and “wrongful acts.” The 

policy defines a wrongful act as “an actual or alleged error, misstatement, act, omission, 

neglect or breach of official duty including misfeasance, malfeasance and nonfeasance.” 

(Emphasis added). When this provision is contrasted with Zsigo’s definition of “scope of 

employment,” it becomes reasonably clear that the parties contractually altered what 

constitutes “scope of employment.” Indeed, the definition of “wrongful acts” specifically 

contemplates coverage for a breach of official duties, which is the exact type of conduct 

that was excluded in Zsigo. Because the MMRMA contractually agreed to include 

liability for a breach of official duties, which might otherwise fall outside an employee’s 

scope of employment, Heika’s estate, I believe, is entitled to coverage under the policy. 

In sum, although the Court of Appeals erred by (1) applying the “but for” 

definition of “scope of employment” that this Court rejected in Zsigo and (2) finding the 

contract “ambiguous,” it nonetheless reached the correct result because the contract itself 

expanded the definition of “scope of employment” to include Heika’s breach of his 

official duties. 

p1110 

I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the 

foregoing is a true and complete copy of the order entered at the direction of the Court. 

November 14, 2008 

 Clerk