LINDA SUE WOLFORD V PHILLIP ANTHONY PIKARSKI
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STATE OF MICHIGAN
COURT OF APPEALS
LINDA SUE WOLFORD,
UNPUBLISHED
February 17, 2011
Plaintiff-Appellant,
v
No. 295989
Huron Circuit Court
LC No. 09-004076-NI
PHILLIP ANTHONY PIKARSKI,
Defendant,
and
THUMB HOME REAL VIDEO, L.L.C.,
Defendant-Appellee.
Before: MURPHY, C.J., and MURRAY and SHAPIRO, JJ.
MURRAY, J. (dissenting).
With all due respect to my colleagues in the majority, I would affirm the circuit court’s
order granting defendant Thumb Home Real Video, L.L.C.’s motion for summary disposition, as
there was no genuine issue of material fact that defendant Phil Pikarski was not an agent of
THRV. MCR 2.116(C)(10).
When reviewing de novo a trial court’s decision on a motion for summary disposition,
Smith v Globe Life Ins Co, 460 Mich 446, 454; 597 NW2d 28 (1999), we must determine, while
viewing the evidence in the light most favorable to the nonmoving party, whether a genuine issue
of material fact exists for trial, Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314
(1996). A genuine issue of material fact only exists when the material facts could lead
reasonable jurors to disagree. West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468
(2003); Harris v Univ of Michigan Bd of Regents, 219 Mich App 679, 694; 558 NW2d 225
(1996).1
1
Although it is certainly true that “generally” the fact-finder should decide whether an agency
exists, that is only the case when the material facts are disputed. Sliter v Cobb, 388 Mich 202,
-1-
As the majority acknowledges, whether an agency exists depends upon the actual
relations of the parties, which are exhibited through their agreements and actions. St Clair
Intermediate Sch Dist v Intermediate Educ Ass’n/MEA, 458 Mich 540, 557; 581 NW2d 707
(1998). Long ago the Supreme Court characterized the fundamental aspects of an agent as a
“business representative” whose function “is to bring about, modify, affect, accept performance
of, or terminate contractual obligations between his principal and third persons.” Saums v
Parfet, 270 Mich 165, 172; 258 NW 235 (1935) (emphasis added). Also fundamental to the
existence of such a relationship is the right of the principal to control the agent in the matter
entrusted to him. Briggs Tax Serv, LLC v Detroit Pub Schs, 485 Mich 69, 80; 780 NW2d 753
(2010).2
Here, the uncontested evidence shows that THRV sells satellite television service, both
for DISH Network and DIRECTV, and that the installation performed by Pikarski on the day at
issue was for DISH Network. It is also undisputed that a customer must enter into two contracts
before obtaining DISH Network services. First, the customer signs a contract with THRV,
wherein the customer indicates a desire to receive the service and indicates what service is
needed at his home. The contract with THRV is a two year commitment. After entering into a
contract with a new customer, the satellite system would then be installed at the customer’s
home, which THRV occasionally hired Pikarski’s company to perform. Sometimes THRV set
the installation schedule, other times Pikarski would. Either way, when performing installation
Pikarski used his own vehicle and tools, while THRV provided the satellite equipment. Pikarski
was free to install the equipment according to his own experience and expertise, and received no
training from THRV.3 If, once Pikarski arrived at the house, the customer balked at the services,
or there were problems precluding the installation, Pikarski would not install the material.
These undisputed facts reveal that Pikarski did not act as a business representative for
THRV, and in no sense brought about a contractual relation or business for THRV. Indeed, the
contract between the customer and THRV was created before Pikarski was ever called to
perform installation, and in fact it is that contract that results in the need for installation.
The majority opinion makes much of the fact that Pikarski would present a DISH
Network contract for the customer to sign once he confirmed that it was technically feasible to
provide satellite service to the customer. Pikarski then returned these contracts to THRV, who
would then transmit the contracts to DISH Network within the month.
206-207; 200 NW2d 67 (1972). There is no case suggesting that the procedure available through
MCR 2.116(C)(10) is not available in cases where an agency is alleged.
2
What is not relevant to whether an agency relationship existed is the extent of plaintiff’s
injuries, which has nothing to do with whether THRV is a principal to Pikarski. Chlopek v
Federal Ins Co, 499 F3d 692, 700-701 (CA 7, 2007).
3
Indeed, James Cameron, owner of THRV, testified that he did not even conduct an interview
with Pikarski before engaging his company’s installation services. Instead, he had previously
heard about Pikarski’s installation skills, and spoke to him on the phone one time before using
him as an installer.
-2-
For several reasons, however, Pikarski’s ministerial act of obtaining signatures on the
contracts did not create a genuine issue of material fact as to his agent status. First, for agency
purposes, the question is whether Pikarski brought about contractual obligations between his
alleged principal (THRV) and third parties (the customers). The contract Pikarski had customers
sign, however, was between DISH Network and the customer, not THRV and the customer.
That latter contract, which is the relevant one for agency purposes, Saums, 270 Mich at 172, was
signed by the customer prior to THRV even engaging Pikarski’s installation services.
Second, even if the contract was between THRV and the customer, the only obligation
required of Pikarski was to obtain a signature. There is absolutely no evidence—or even a
suggestion—that Pikarski had ever negotiated any terms of the contracts he had customers sign,
or even had the authority to do so. In fact, the only act Pikarski took was to ask the customer if
she was the person named on the DISH contract. If she was, or if the same last-named spouse
answered the door, the contract could be signed; if she was not, Pikarski would leave the site.
These undisputed facts reveal that Pikarski was nothing more than a courier of the DISH
contract, and played no role in procuring the sale for DISH, as the customer had already
committed to the service when signing the THRV contract.
Cameron’s testimony that if the customer did not sign the DISH Network contract, then
THRV would not enforce its contract with the customer, is immaterial to the issue. Whether
THRV enforces its own previously secured contract rights with the customer who fails to sign a
contract with the satellite provider has nothing to do with Pikarski’s service. The evidence
shows that the matter entrusted to Pikarski was to install a satellite system, and what happens
after that based on a customer’s decision does not impact Pikarski’s status. Charvat v Echostar
Satellite LLC, 676 F Supp 2d 668, 676 (SD Ohio, 2009). Simply because it is—out of
convenience—Pikarski who hands the DISH Network contract to the customer does not make
him an agent of THRV, as he played no role in procuring the agreement between THRV and the
customer, or DISH Network and the customer.4
Though the majority opinion and plaintiff rely heavily upon Lincoln v Fairfield-Nobel, 76
Mich App 514; 257 NW2d 148 (1977), that decision actually reveals why there is no genuine
issue of material fact in this case as to whether an agency relationship existed. In Lincoln, the
salesman was actively engaged in soliciting contracts between the company and its customers.
The salesman used company material for his sales, used their advertising, and the customer
contact was the salesman. Id. at 520. In other words, it was the salesman’s job to seek out
contracts for the company, while in the present case Pikarski only performed the service of
installing satellite equipment. The contracts signed at the customers’ homes were contracts
4
Although plaintiff admits there exists no employer-employee relationship, I note that there is
persuasive authority outside our jurisdiction concluding that installers of DISH Network or
similar satellite products are independent contractors. See, e.g., Mississippi Dep’t of
Employment Security v Harbin, 11 So 3d 137, 140-142 (Miss App, 2009) and Freund v Hi-Tech
Satellite, unpublished opinion of the United States Court of Appeals for the Eleventh Circuit,
decided May 31, 2006 (Docket No. 05-14091); 185 Fed Appx 782 (CA 11, 2006).
-3-
between the customer and DISH Network; the contract with THRV had already been made at
THRV’s store. Also, Pikarski never signed any papers on behalf of THRV. Thus, although the
salesman in Lincoln was actively “bringing about contractual obligations” as discussed in St
Clair Intermediate School Dist, Pikarski was merely performing THRV’s pre-existing
contractual obligation to install a satellite system.
Furthermore, THRV exercised very little control over Pikarski. THRV sometimes
provided Pikarski with a schedule, but he was free to perform installations in any manner he felt
the situation warranted. Furthermore, although plaintiff takes great pains to suggest that THRV
required Pikarski to return the contracts to THRV the same day or as soon as possible, Pikarski
indicated that he actually did this as “a common courtesy.” It is also clear that he was free to
return them by mail instead of delivering them personally.5 As a result, there was no genuine
issue of material fact, and as a matter of law Pikarski was not the agent of THRV.
In sum, Pikarski fits neither of the two main characteristics of an agent. He was not
controlled by THRV and did not “bring about, modify, affect, accept performance of, or
terminate contractual obligations” between THRV and its customers. I would hold that
reasonable minds could not reasonably conclude that Pikarski was an agent of THRV, and would
affirm the trial court’s order.
/s/ Christopher M. Murray
5
Additionally, payment to THRV from DISH Network was not contingent on DISH Network
first receiving the contracts. Thus, there is no evidence that immediate return of signed DISH
Network contracts was required or expected.
-4-
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