JANEANE WILCOX V JON B MUNGER
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STATE OF MICHIGAN
COURT OF APPEALS
JANEANE WILCOX,
UNPUBLISHED
December 20, 2007
Plaintiff-Appellant,
v
JOHN B. MUNGER, Personal Representative of
the Estate of KEITH PHILLIP HEIKA,
No. 275329
Oakland Circuit Court
LC No. 06-071889-CK
Defendant/Cross-Defendant,
and
MICHIGAN MUNICIPAL RISK MANAGEMENT
AUTHORITY,
Defendant/Cross-Plaintiff/Appellee.
Before: Davis, P.J., and Murphy and Servitto, JJ.
PER CURIAM.
Plaintiff appeals as of right a trial court order granting summary disposition in
defendant’s favor and denying her request for summary disposition. We reverse.
On April 25, 2004, plaintiff called the Southfield police to report that her boyfriend had
slashed the tires on her vehicle. Several officers, including Keith Heika, responded. According
to plaintiff, Heika followed her into her home while she was retrieving some paperwork
regarding the incident and, while in her home, sexually assaulted her. Heika committed suicide
shortly after the incident. Plaintiff thereafter initiated a civil rights lawsuit (under 42 USC
§ 1983) in federal court against Heika’s estate. According to plaintiff, despite the fact that Heika
was covered by an insurance policy issued by defendant, defendant denied during the federal
action (and would likely continue to deny) that any coverage was available. Plaintiff thus
initiated the present lawsuit, seeking a declaration that defendant has liability under the policy
and that coverage under the policy applies to Heika’s actions. Defendant filed a cross-claim
seeking a declaration that it has no obligation to indemnify or defend with respect to Heika’s
actions because Heika was not a “member” covered by the policy and because Heika’s actions
fell within a policy exclusion. On the parties’ cross-motions, the trial court granted defendant’s
motion for summary disposition and denied plaintiff’s motion.
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We review de novo a decision on a motion for summary disposition. Willis v Deerfield
Twp, 257 Mich App 541, 548; 669 NW2d 279 (2003). MCR 2.116(C)(8) allows for summary
disposition if “[t]he opposing party has failed to state a claim on which relief can be granted.” In
reviewing a motion brought under this subrule, “we assume that all factual allegations in the
nonmoving party's pleadings are true and determine if there is a legally sufficient basis for the
claim.” Salinas v Genesys Health System, 263 Mich App 315, 317; 688 NW2d 112 (2004).
Summary disposition is appropriate under MCR 2.116(C)(10) if no factual dispute exists
and the moving party is entitled to judgment as a matter of law. Rice v Auto Club Ins Ass'n, 252
Mich App 25, 31; 651 NW2d 188 (2002). In deciding a motion brought under subrule (C)(10), a
court considers all the evidence, affidavits, pleadings, and admissions in the light most favorable
to the nonmoving party. Id. at 30-31. The nonmoving party must present more than mere
allegations to establish a genuine issue of material fact for resolution at trial. Id. at 31.
The determination whether an insurer is contractually obligated under its policy to defend
certain claims requires interpretation of the insurance contract. American Bumper & Mfg Co v
Nat'l Union Fire Ins Co, 261 Mich App 367, 375; 683 NW2d 161 (2004). The interpretation of
an insurance policy is a question of law that this Court reviews de novo. Klapp v United Ins
Group Agency, Inc, 468 Mich 459, 463, 469; 663 NW2d 447 (2003).1
On appeal, plaintiff contends that the trial court erred in concluding that Heika’s actions
were not a violation of plaintiff’s civil and constitutional rights. What the trial court specifically
ruled, however, was that because sexual assault is not within an officer’s official duties, and
because the acts of police officers in the ambit of their personal, private pursuits fall outside of
42 USC 1983, Heika was not a “member” of the group of persons afforded insurance coverage
by defendant.
Defendant’s coverage documents provide, at section 1:
A. MMRMA will pay on behalf of the Member all monies the Member becomes
legally obligated to pay as damages to another person because of an occurrence
first taking place or commencing during the period of membership in MMRMA
for subjects of coverage 1-6 below. MMRMA has the right and the duty to
defend any lawsuit seeking money damages. . .
1
We fully recognize defendant’s assertion that it was not an insurer nor were the coverage
documents an insurance policy. The similarities between the purpose and content of defendant’s
coverage documents and traditional insurance policies, however, coupled with the fact that this
matter is solely concerned with a dispute over the terms of the coverage documents leads us to
conclude that the most appropriate analysis would be the same as that given disputes over
insurance policy language. Moreover, defendant has suggested no other applicable analysis and
relies on cases concerning the interpretation of insurance contracts to support its position.
-2-
1.
Bodily injury:
2.
Property damage;
3.
Personal injury;
4.
Medical malpractice. . .
5.
Motor vehicle liability. . .
6.
Wrongful act.
“Personal injury” is further defined as including the “violation of civil, statutory or constitutional
rights, discrimination or harassment arising out of employment or law enforcement operations.”
“Member” is defined in the coverage documents as a municipal corporation and also includes
any former or present employee “while acting within the scope of their official duties or
operations on behalf of the Member.” At issue in the instant matter is whether Heika was acting
within the scope of his official duties or operations on behalf of the Southfield Police
Department when he allegedly sexually assaulted plaintiff, such that his estate is entitled to a
defense or coverage from defendant in the federal lawsuit.
According to defendant, summary disposition was appropriate because Heika was acting
outside the scope of his employment when he committed the alleged sexual assault. Defendant
contends that the sexual assault was not authorized or ratified by his employer, and that by
committing the act, Heika had stepped outside of his official duties to satisfy a personal desire.
Defendant does not dispute that Heika was present at plaintiff’s home as a fully uniformed and
armed police officer responding to a call, and that his initial presence would be within the scope
of his duties as a police officer. Heika then entered plaintiff’s home to either give her some
paperwork or wait for her to retrieve paperwork relating to the incident for which Heika had been
initially called to the home. Clearly, 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. Nevertheless,
defendant contends that when Heika committed the sexual assault, he temporarily took off his
police officer hat, figuratively speaking, and at the singular moment of the sexual assault, was
not acting within the scope of his duties.
The problem this Court sees with this rationale finds its basis in the very language of the
coverage documents. On the one hand, the documents purport to provide coverage for claims
against an employee seeking damages for personal injury (including constitutional and civil
rights violations) or wrongful acts so long as the employee is acting within the scope of his
employment duties. On the other hand, defendant encourages a reading of the coverage
documents that would exclude coverage because Heika’s actions could be categorized as causing
personal injury (or a wrongful act). Per 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 with the scope of his employment. This language is ambiguous, indeed
circular, and leaves this Court to ponder when causing personal injury or committing a wrongful
act would be part of one’s employment duties or fall within the scope of one’s employment such
that he would be afforded coverage for claims alleging a wrongful act.
-3-
The language, as written would always allow for the carving out of a complained of
specific act and categorize it as outside of one’s official employment duties. For example, one
could argue that an officer’s action in pulling a vehicle over would be within the scope of his
employment. But, if it is alleged that he pulled the vehicle over because of some racial bias,
defendant could always separate the specific action alleged to be wrongful (or violative of
constitutional or civil rights) and claim that the narrow action complained of (using racial bias as
a basis for pulling over a vehicle) fell outside the scope of employment (discrimination
presumably never falling within the scope of one’s employment duties) and that coverage was
thus not available.
“Where a written contract is ambiguous, a factual question is presented as to the meaning
of its provisions, requiring a factual determination as to the intent of the parties in entering the
contract.” Klapp, supra, 468 Mich at 469. Thus, the fact finder must interpret the contract's
terms, looking to extrinsic evidence of intent and meaning and if all conventional means of
contract interpretation, including the consideration of relevant extrinsic evidence, have left the
jury unable to determine what the parties intended their contract to mean the rule of contra
proferentem (ambiguities are to be construed against the drafter of the contract) applies.
The only extrinsic evidence presented for this Court’s review is the self-serving affidavit
of one of defendant’s employees, Timothy Belanger. In the affidavit, Mr. Belanger asserted that
defendant did not desire or intend, in creating its coverage documents, to provide coverage for an
individual who committed the type of act Heika is accused of committing. The affidavit,
however, appears to be more of a restatement of defendant’s position given that there is no
indication that Mr. Belanger assisted in the drafting of the coverage documents or otherwise has
an independent knowledge concerning defendant’s intent in drafting of the documents. The
extrinsic evidence being unhelpful, we apply the rule of pro con proferentem and resolve the
ambiguity in the coverage documents against defendant as drafter of the documents. Due to the
above, and recalling that “the duty to defend arises if the underlying allegation even arguably
come within the policy coverage” (Allstate Ins Co v Fick, 226 Mich App 197, 202; 572 NW2d
265 (1997)), defendant must defend defendant in the underlying federal action.2
With respect to defendant’s assertion that an exclusion contained within the coverage
documents precludes coverage even if Heika’s estate would otherwise be entitled to the same, we
note the specific language in the exclusion:
Coverage is not provided for any demand, notice, claim or lawsuit alleging bodily
injury, property injury, personal injury or other subjects of coverage as set forth in
Section 1 resulting directly, indirectly or consequentially from, in, or due to any
of the following:
2
Defendant indicated at oral argument that it was voluntarily defending Heika’s estate in the
federal action though it was under no obligation to do so. Under our holding, defendant is, in
fact, obligated to defend the estate.
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***
G. Any criminal act, as to the person or entity proven, admitted, or non-contested
to have committed such act. . .
As the exclusion applies to persons proven, admitted, or non-contested to have committed
the criminal act and it does not appear to have as yet been proven, admitted, or non-contested
that Heika committed the criminal act of sexual assault, the above exclusion is inapplicable.
Reversed.
/s/ Alton T. Davis
/s/ William B. Murphy
/s/ Deborah A. Servitto
-5-
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