Ashker v. Ford Motor Co.

• Decision Date: 07 May 2001
• Docket Number: Docket No. 214537.
• Citation: 627 N.W.2d 1,245 Mich. App. 9
• Parties: Vicki ASHKER, Personal Representative of the Estate of Michelle Ashker, Deceased, Plaintiff-Appellant, v. FORD MOTOR COMPANY, Defendant-Appellee, and Ford Motor Credit Company, George G. Surdu, David Holman, Harry Mills, Howard Layson, George Halloran, Gerald Decker, Harold Collins, Ronald Bierman, Larry Rice, and William Odom, Defendants.
• Court: Court of Appeal of Michigan — District of US

627 N.W.2d 1

245 Mich. App. 9

Vicki ASHKER, Personal Representative of the Estate of Michelle Ashker, Deceased, Plaintiff-Appellant, v.FORD MOTOR COMPANY, Defendant-Appellee, andFord Motor Credit Company, George G. Surdu, David Holman, Harry Mills, Howard Layson, George Halloran, Gerald Decker, Harold Collins, Ronald Bierman, Larry Rice, and William Odom, Defendants.

Docket No. 214537.

Court of Appeals of Michigan.

Submitted October 11, 2000, at Detroit.

Decided March 6, 2001, at 9:05 a.m.

Released for Publication May 7, 2001.

Feikens, Stevens, Kennedy, Hurley & Galbraith, P.C.(by Michael B. Barey), Detroit, for the plaintiff.

Deborah N. Gertsen and Willie E. McGlory, Dearborn and Kienbaum Opperwall Hardy & Pelton, P.L.C.(by Elizabeth Hardy), Birmingham, for the defendant.

Before MARKEY, P.J., and MURPHY and COLLINS, JJ.

MURPHY, J.

Plaintiff¹ appeals as of right from the trial court's order granting summary disposition, pursuant to MCR 2.116(C)(10), in favor of defendantFord Motor Company.We reverse and remand.

In January of 1991, Michelle Ashker initiated this action alleging civil conspiracy, violation of the Civil Rights Act (CRA),M.C.L. § 37.2101 et seq.;M.S.A. § 3.548(101)et seq., intentional interference with economic advantage, intentional infliction of emotional distress, breach of contract, and intentional interference with a contractual relationship.The lawsuit named as defendantsFord Motor Company, Ford Motor Credit Company(FMCC) and ten individual defendants.Ashker entered into a consent judgment with FMCC and the individual defendants following mediation, and only defendant Ford remained.In August 1995, the trial court dismissed the suit against defendant.Ashker appealed to this Court, which affirmed in part and reversed in part in Ashker v. Ford Motor Co, unpublished opinion per curiam of the Court of Appeals, issued January 21, 1997(Docket No. 188647)(Ashker I).

In Ashker I,this Court affirmed the dismissal of plaintiff's claims of civil conspiracy, intentional infliction of emotional distress, and interference with a contractual relationship, but reversed the dismissal of the CRA claim.²With respect to the CRA claim, this Court held that the proper test to determine whether defendant was Ashker's employer was the economic reality test:

The circuit court erred in granting summary disposition to defendant regarding plaintiff's CRA claim.The economic reality test is the proper test to determine whether defendant Ford was plaintiff's employer.SeeMcCarthy v. State Farm Insurance,170 Mich.App. 451, 455, 428 N.W.2d 692(1988).The factors to be considered in applying the economic reality test are (1) control; (2) payment of wages; (3) hiring and firing; and (4) responsibility for the maintenance of discipline.Wells v. Firestone [Tire and Rubber] Co.,421 Mich. 641, 648, 364 N.W.2d 670(1984).

Under this test, this Court held that there was a genuine issue of material fact regarding whether defendant was Ashker's employer.Accordingly, this Court remanded for further proceedings regarding the CRA claim.

Defendant again moved for summary disposition in July 1998, this time arguing that this Court's decision in Norris v. State Farm Fire & Casualty Co.,229 Mich.App. 231, 581 N.W.2d 746(1998), changed the law and that the control test should now be used to determine whether defendant was Ashker's employer.Defendant contended that Norrisexpressly overruledMcCarthy, supra, and adopted the control test in all but worker's compensation cases.Defendant argued that, under the control test, there was no genuine question of material fact that it was not Ashker's employer.The trial court agreed with defendant's arguments and entered summary disposition in its favor.

Plaintiff now contends that the Norris panel misinterpreted the McCarthy decision and that under the facts of this case the economic reality test is still the appropriate test to determine whether defendant was Ashker's employer for the purposes of this CRA claim.Plaintiff argues that the law of the case doctrine applies such that the trial court is precluded from reconsidering whether there is a genuine issue of fact regarding whether plaintiff was Ford's employee.We agree.

The law of the case doctrine holds that a ruling by an appellate court on a particular issue binds the appellate court and all lower tribunals with respect to that issue.Driver v. Hanley (After Remand),226 Mich.App. 558, 565, 575 N.W.2d 31(1997).Thus, a question of law decided by an appellate court will not be decided differently on remand or in a subsequent appeal in the same case.Id.The primary purpose of the doctrine is to maintain consistency and avoid reconsideration of matters once decided during the course of a single continuing lawsuit.Bennett v. Bennett,197 Mich.App. 497, 499-500, 496 N.W.2d 353(1992).However, the doctrine does not preclude reconsideration of a question if there has been an intervening change of law.Freeman v. DEC Int'l, Inc.,212 Mich.App. 34, 38, 536 N.W.2d 815(1995).For this exception to apply, the change of law must occur after the initial decision of the appellate court.Id.Whether law of the case applies is a question of law subject to review de novo.Kalamazoo v. Dep't of Corrections (After Remand),229 Mich.App. 132, 135, 580 N.W.2d 475(1998).At issue here is whether Norris represents an intervening change of law that precludes application of the law of the case doctrine.We find that it is not.Although the panel in Norris specifically overruled McCarthy while holding that the appropriate test for respondeat superior liability is the control test, Norris, supra at 238-239, 581 N.W.2d 746, the panel actually misinterpreted McCarthy by failing to recognize that the earlier decision addressed two separate issues.Norris, in fact, merely reiterated the second of two holdings reached in McCarthy and thus the two decisions are fully consistent.

McCarthy first addressed whether the defendant State Farm was the plaintiff's employer and, second, whether, in the alternative, the defendant State Farm could be held liable for actions of its agent under the theory of respondeat superior.In addressing the first issue McCarthy applied the economic reality test, McCarthy, supra at 455-456, 428 N.W.2d 692 and in addressing the second it applied the control test.Id. at 457-458, 428 N.W.2d 692.In Norris, by contrast, it appears that the plaintiff asserted claims against the defendant State Farm companies pursuant to a theory of respondeat superior liability only.Norris, supra at 238.No allegation of direct liability is discussed.³Norris concluded that for all but worker's compensation cases it is well established that the correct standard to assess respondeat superior liability is the control test, not the economic reality test.Id. at 239, 581 N.W.2d 746.However, because McCarthy also held that the control test applies to assess respondeat superior liability, Norris does not constitute an intervening change in the law.Accordingly, the law of the case doctrine is applicable and the trial court should not have reconsidered the issue.

Although the doctrine is applicable regardless of the correctness of this Court's decision in Ashker I, seeReeves v. Cincinnati, Inc. (After Remand),208 Mich.App. 556, 559, 528 N.W.2d 787(1995);Bennett, supra at 500, 496 N.W.2d 353, we additionally find that the Ashker I panel appropriately utilized the economic reality test.In Chilingirian v. City of Fraser,194 Mich.App. 65, 69, 486 N.W.2d 347(1992), this Court noted:

The "control test" has been limited to those situations where respondeat superior has been alleged and the vicarious liability of a master is involved.The control test has been abandoned as the exclusive criterion by which the existence of an employee-employer relationship, for the purpose of remedial social legislation, is determined.Because vicarious liability of a master is not alleged herein, we find the control test to be inappropriate.The test to be employed is one of "economic reality."[Citations omitted.]

Here, it is not clear that Ashker sought only to hold defendant vicariously liable for the acts of a servant or an agent.Rather, it

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