Michigan Supreme Court 

# Order

Lansing, Michigan

November 14, 2008 Clifford W. Taylor,
Chief Justice

135702 Michael F. Cavanag h

Elizabeth A. Weave r Marilyn Kell y Maura D. Corriga n Robert P. Young, Jr. JANEANE WILCOX, Stephen J. Markman, Plaintiff-Appellee, J ustices

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 consid ered, and it is DENIED, because we are not persuaded that the question presented s hould be reviewed by this Court.

M ARKMAN

, 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, Offi cer Keith P. Heika sexually assaulted

Janeane Wilcox. After Heika committed suicid e, Wilcox sued both Heika’s estate and the Michigan Municipal Risk Manage ment Authority (MMRMA). The MMRMA provides its members coverage for “personal in jury” and “wrongful act[ s]” that result in an award of money damages. As define d in the MMRMA’s policy, personal injury

consists of the “viola tion of civil, statutory or consti tutional 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,2

the question becomes whether Heika was a member acting within the scope of his official duties or operations on be half 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 ac complishing the tort by the existence of the agency relationship’” is “‘cl early [acting] outside the sc ope of [his] employment.’” (Citation Omitted.) Thus, we have concluded that an em ployee who woul d 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 hi s 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 pe r curiam of the Court of Appe als, 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 ig noring this Court’s di rective regarding what falls outside the scope of one’s employment.

The Court of Appeals also offered a se parate 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 purp orted to cover personal injury including “‘violation[s] of civil, stat utory or constitutional rights, discrimination or harassment,’”

id ., which Zsigo would have ex cluded. In rejecting the MMR MA’s definition of “scope of employment,” which was based on Zsigo , the Court of Appeals st ated that, “[p]er the coverage documents, Heika is afforded coverage for the clai m of sexual assault (wrongful act) committed while he was ac ting 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 ambigu ity 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 fi nd 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 j udicial power. As this Court stated in Lansing Mayor v Pub Service Comm , 470 Mich 154, 165-166 (20 04), ambiguity does not exist unless two provisions “irreconcila bly conflict” with one anothe r or when one provision is “equally susceptible” to more than one meaning. The MMR MA’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 ri ghts of another at the instruction of the_______________________________________ __ 3

employer. For example, this policy would cover a situation in which a police department routinely encourages, or requires, its office rs to arrest a disproportionate number of minorities or discriminate against women when hiring. This inte rpretation would give full effect to the MMRMA’s po licy, 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 defin ition of “scope of employment” in Zsigo . Thus, the Court of Appeals is incorrect th at the policy’s coverage of pers onal 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 “w rongful acts.” The policy defines a wrongful act as “an actual or alleged error, misstatement, act, omission, neglect or breach of official duty including misfeasance, ma lfeasance 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, th e definition of “wrongful acts” specifically contemplates coverage for a brea ch of official duties, which is the exact type of conduct

that was excluded in Zsigo

. Because the MMRMA contract ually agreed to include liability for a breach of official duties, whic h 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 Co urt 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 th e 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 Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

November 14, 2008

Clerk