Nastal v. HENDERSON & ASSOCIATES INVEST., INC.

• Decision Date: 25 January 2005
• Docket Number: Docket No. 125069. Calendar No. 3.
• Citation: 691 N.W.2d 1,471 Mich. 712
• Parties: Ronald M. NASTAL and Irene Nastal, His Wife, Plaintiffs-Appellees, v. HENDERSON & ASSOCIATES INVESTIGATIONS, INC., A Michigan Corporation, Nathaniel Stovall and Andrew Conley, Defendants-Appellants.
• Court: Michigan Supreme Court

691 N.W.2d 1

471 Mich. 712

Ronald M. NASTAL and Irene Nastal, His Wife, Plaintiffs-Appellees, v. HENDERSON & ASSOCIATES INVESTIGATIONS, INC., A Michigan Corporation, Nathaniel Stovall and Andrew Conley, Defendants-Appellants.

Docket No. 125069. Calendar No. 3.

Supreme Court of Michigan.

Argued October 5, 2004.

Decided January 25, 2005.

Barbara H. Goldman and Sheldon L. Miller, Southfield, MI, for the plaintiffs.

Kaufman, Payton & Chapa (by Donald L. Payton and Frank A. Misuraca), Farmington Hills, MI, for the defendants.

Martin L. Critchell, Detroit, MI, for Michigan Self-Insurers Association.

Willingham & Cote, P.C. (by Curtis R. Hadley and Matthew K. Payok), East Lansing, MI, for Michigan Council of Private Investigators, Michigan Professional Bail Agents Association, and Court Officers and Deputy Sheriffs, Process Servers of Michigan.

Michelle L. Pinter, Flint, MI, for McMurray, Baio and Associates.

Opinion

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(1)(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 plaintiff's 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 plaintiff's 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' mailroom 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(1)(c) and, thus, that one engaged in it cannot be guilty of stalking. They asserted that plaintiff's 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...