VICKI ASHKER, PERS REP, EST OF MICHELLE ASHKER V FORD MOTOR CO
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STATE OF MICHIGAN
COURT OF APPEALS
VICKI ASHKER, Personal Representative of the
Estate of MICHELLE ASHKER, Deceased,
FOR PUBLICATION
March 6, 2001
9:05 a.m.
Plaintiff-Appellant,
v
No. 214537
Wayne Circuit Court
LC No. 91-101922-CL
FORD MOTOR COMPANY,
Defendant-Appellee,
Updated Copy
April 27, 2001
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.
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 defendant Ford 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), MCL 37.2101 et seq.; MSA 3.548(101) et seq.,
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intentional interference with economic advantage, intentional infliction of emotional distress,
breach of contract, and intentional interference with a contractual relationship. The lawsuit
named as defendants Ford 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and reversed in part in Ashker v Ford Motor Co, unpublished opinion per curiam of the Court of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.2 With 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. See McCarthy v
State Farm Insurance, 170 Mich App 451, 455; 428 NW2d 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 Co, 421 Mich 641, 648; 364 NW2d 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.
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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 NW2d 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 Norris expressly overruled
McCarthy, 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 NW2d 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 NW2d 353 (1992). However, the doctrine does not
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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 NW2d 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 NW2d 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, 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, McGarthy, supra at 455-456, and in addressing the second it
applied the control test. Id. at 457-458. 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.3
Norris 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
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test. Id. at 239. 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, see Reeves v Cincinnati, Inc (After Remand), 208 Mich App 556, 559; 528 NW2d
787 (1995); Bennett, supra at 500, 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
NW2d 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 appears that she sought to hold defendant liable for its own actions
concerning its investigation, or lack thereof, of her workplace complaints of ethnic harassment.
Before consideration of defendant's original motion for summary disposition, Ashker supported
this theory of liability with evidence regarding defendant's involvement in investigation of her
complaints and defendant's oversight and review of FMCC's termination process. Regardless of
whether sufficient evidence to prevail will ultimately be presented, Ashker did not merely assert
liability on the part of defendant for the actions of an agent, FMCC.
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To the extent, therefore, that this case presents a question of direct liability on the part of
defendant, the Ashker I panel correctly held the economic reality test applicable. The control test
is irrelevant because its purpose is to define and delimit the circumstances under which a master
should be held liable for the acts committed by a servant that injure a third party. Nichol v Billot,
406 Mich 284, 297; 279 NW2d 761 (1979).4
Reversed and remanded. We do not retain jurisdiction.
/s/ William B. Murphy
/s/ Jane E. Markey
/s/ Jeffrey G. Collins
1
The original plaintiff in this matter was Michelle Ashker. According to plaintiff Vicki Ashker's
motion for substitution of party, Michelle Ashker died on April 26, 1999, eight months after the
court entered the order presently being appealed.
2
Ashker did not appeal the dismissal of the claims of intentional interference with economic
advantage or breach of contract.
3
Norris seemingly viewed McCarthy as an identically structured case involving only a
respondeat superior theory. It was on this premise that Norris held that McCarthy was wrongly
decided, ruling that the earlier panel had erred in applying the economic reality test to a
respondeat superior situation. Given the facts of both cases, each of which included three
apparently identically positioned parties—an employee, an independent insurance broker
exclusively selling State Farm policies, and State Farm—it is plausible that both cases could
have been analyzed under the framework addressed in Norris. Nevertheless, the claims
presented in the two cases did differ, and rightly or wrongly McCarthy did not focus solely on the
theory of respondeat superior. To the extent it was appropriate to view the relationship between
the parties in McCarthy in a framework other than respondeat superior, the panel's reasoning with
regard to the issue of direct liability was appropriate and is still good law.
4
Given our resolution of these questions, we need not address plaintiff 's additional argument
that under the control test there is a material question of fact regarding whether defendant had
control over Ashker.
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