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MICHIGAN APPEALS REPORTSCASES DECIDEDIN THEMICHIGANCOURT OF APPEALSFROMJune 16, 2016 through August 23, 2016KATHRYN L. LOOMISREPORTER OF DECISIONSVOLUME 316FIRST EDITION2018

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COURT OF APPEALSCHIEF JUDGETERM EXPIRESJANUARY 1 OFMICHAEL J. TALBOT.2021CHIEF JUDGE PRO TEMCHRISTOPHER M. MURRAY .2021JUDGESDAVID SAWYER .WILLIAM B. MURPHY .MARK J. CAVANAGH .KATHLEEN JANSEN .HENRY WILLIAM SAAD.JOEL P. HOEKSTRA .JANE E. MARKEY .PETER D. O’CONNELL .KURTIS T. WILDER.PATRICK M. METER .DONALD S. OWENS .KIRSTEN FRANK KELLY .KAREN FORT HOOD.STEPHEN L. BORRELLO .DEBORAH A. SERVITTO .JANE M. BECKERING .ELIZABETH L. GLEICHER .CYNTHIA DIANE STEPHENS.MICHAEL J. KELLY .DOUGLAS B. SHAPIRO .AMY RONAYNE KRAUSE.MARK T. BOONSTRA .MICHAEL J. RIORDAN .MICHAEL F. GADOLA.COLLEEN A. O’BRIEN .CHIEF CLERK: JEROME W. ZIMMER, JR.RESEARCH DIRECTOR: JULIE ISOLA 172017

SUPREME COURTTERM EXPIRESJANUARY 1 OFCHIEF JUSTICEROBERT P. YOUNG, JR. . 2019JUSTICESSTEPHEN J. MARKMAN .BRIAN K. ZAHRA.BRIDGET M. MCCORMACK .DAVID F. VIVIANO .RICHARD H. BERNSTEIN.JOAN L. LARSEN.202120232021201720232017COMMISSIONERSDANIEL C. BRUBAKER, CHIEF COMMISSIONERSHARI M. OBERG, DEPUTY CHIEF COMMISSIONERTIMOTHY J. RAUBINGERNELSON S. LEAVITTDEBRA A. GUTIERREZ-MCGUIREANNE-MARIE HYNOUS VOICEDON W. ATKINSJÜRGEN O. SKOPPEKMICHAEL S. WELLMANGARY L. ROGERSRICHARD B. LESLIEKATHLEEN M. DAWSONSAMUEL R. SMITHANNE E. ALBERSAMY L. VANDYKEAARON J. GAUTHIERSTATE COURT ADMINISTRATORMILTON L. MACK, JR.CLERK: LARRY S. ROYSTERREPORTER OF DECISIONS: CORBIN R. DAVISCRIER: DAVID G. PALAZZOLO

TABLE OF CASES REPORTEDPAGEAAllegan County, Sau-Tuk Industries, Inc v .Allstate Ins Co, Southeast Michigan SurgicalHospital, LLC v .Application of Consumers Energy to IncreaseElectric Rates, In re (On Remand) .Assy, People v .122657231302BBank of America, NA v Fidelity National TitleIns Co . 480Baynesan v Wayne State Univ . 643Berry v Garrett . 37Biddles, People v . 148CCampbell, People v . 279Cramer v Village of Oakley . 60DDavis-Christian, People v . 204Dep’t of Environmental Quality, Grass LakeImprovement Bd v . 356Dep’t of Environmental Quality, SouthDearborn Environmental ImprovementAss’n, Inc v . 265i

ii316 MICH APPPAGEDep’t of Treasury, International BusinessMachines Corp v . 346Director of Elections, O’Connell v . 91EEnvironmental Quality (Dep’t of), Grass LakeImprovement Bd v . 356Environmental Quality (Dep’t of), SouthDearborn Environmental ImprovementAss’n, Inc v . 265FFidelity National Title Ins Co, Bank ofAmerica, NA v . 480Forfeiture of 2000 GMC Denali & Contents,In re . 562GGarnes, People v . 339Garrett, Berry v . 37Grass Lake Improvement Bd v Dep’t ofEnvironmental Quality . 356HHeller, People v . 314Henry Ford Health System, Laster v . 726Hyatt, People v . 368IIn re Application of Consumers Energy toIncrease Electric Rates (On Remand) . 231In re Forfeiture of 2000 GMC Denali &Contents . 562In re Jones . 110

TABLE OF CASES REPORTEDiiiPAGEIn re Klein Estate . 329In re Martin . 73In re Petition of Allegan County Treasurer forForeclosure . 122International Business Machines Corp v Dep’tof Treasury . 346JJendrusina v Mishra . 621Jones, In re . 110KKennedy, Williams v . 612Kent Foundry Co, Luce v . 27Klein Estate, In re . 329LLake v Putnam . 247Laster v Henry Ford Health System . 726Lopez, People v . 704Luce v Kent Foundry Co . 27MMajor v Village of Newberry . 527Martin, In re . 73McNeill-Marks v MidMichigan MedicalCenter-Gratiot .1Metro Direct Property & Casualty Ins Co,Scugoza v . 218MidMichigan Medical Center-Gratiot,McNeill-Marks v .1Mishra, Jendrusina v . 621

iv316 MICH APPPAGEOO’Connell v Director of Elections .PPeople v Assy .People v Biddles .People v Campbell .People v Davis-Christian .People v Garnes .People v Heller .People v Hyatt .People v Lopez .People v Pinkney .People v Simmons .People v Solloway .People v Taylor .People v Traver .People v Ventura .People v Watkins .Petition of Allegan County Treasurer forForeclosure, In re .Pinkney, People v .Providence Hospital & Medical Centers, Inc,Trowell v .Putnam, Lake v .SSau-Tuk Industries, Inc v Allegan County .Scugoza v Metro Direct Property & CasualtyIns Co .Simmons, People v .Solloway, People v 50680247122218322174

TABLE OF CASES REPORTEDvPAGESouth Dearborn Environmental ImprovementAss’n, Inc v Dep’t of EnvironmentalQuality . 265Southeast Michigan Surgical Hospital, LLC vAllstate Ins Co . 657TTaylor, People v .Traver, People v .Treasury (Dep’t of), International BusinessMachines Corp v .Trowell v Providence Hospital & MedicalCenters, Inc .Tyler v Tyler .52588346680214VVentura, People v . 671Village of Newberry, Major v . 527Village of Oakley, Cramer v . 60WWatkins, People v . 52Wayne State Univ, Baynesan v . 643Williams v Kennedy . 612

COURT OF APPEALS CASES

MCNEILL-MARKS V MIDMICH MED CTR1McNEILL-MARKS v MIDMICHIGAN MEDICAL CENTER-GRATIOTDocket No. 326606. Submitted June 8, 2016, at Lansing. Decided June 16,2016, at 9:00 a.m. Leave to appeal sought.Tammy McNeill-Marks brought an action in the Gratiot CircuitCourt against MidMichigan Medical Center-Gratiot (MMCG),alleging that MMCG’s decision to terminate her employmentviolated both the Whistleblowers’ Protection Act (WPA), MCL15.361 et seq., and Michigan public policy because MMCG terminated her for either reporting a violation of a personal protectionorder (PPO) to her attorney or for being about to report thatviolation to the circuit court. Plaintiff, a clinical manager atMMCG, had adopted three children. The children’s grandmother,Marcia Fields, had threatened to kill plaintiff, plaintiff’s adoptedchildren, and plaintiff’s biological children during the adoptionprocess. Plaintiff sought and was granted a series of PPOsagainst Fields. The PPO at issue ordered Fields, among otherthings, to refrain from stalking plaintiff as defined under MCL750.411h and MCL 750.411i. Plaintiff subsequently encounteredFields in a hallway at MMCG. Fields was in a wheelchair andsaid, “Hello, Tammy,” in a sing-song vocal tone that plaintiffdescribed as “the cat that just ate the canary,” indicating toplaintiff that Fields knew she had “gotten away with somethingshe’s not supposed to do.” Plaintiff informed her supervisor aboutthe situation and then called her attorney to tell him that Fieldshad appeared at MMCG; however, at no time did plaintiff tell herattorney that Fields was a patient at MMCG. Later that evening,while Fields was still a patient at MMCG, a process server fromthe attorney’s law office served Fields with the PPO in herhospital room. Fields and her family reported the incident toMMCG as a suspected violation of the Health Insurance Portability and Accountability Act (HIPAA), 29 USC 1181 et seq.; 42USC 300gg; 42 USC 1320d et seq. Plaintiff moved to have Fieldsheld in contempt for violating the PPO, but plaintiff did notinclude her encounter with Fields in the hospital as an allegedviolation. MMCG began an investigation into Fields’s HIPAAcomplaint, and plaintiff alleged that MMCG’s privacy officerthreatened that plaintiff would be terminated if plaintiff testifiedregarding her interaction with Fields at MMCG at the hearing on

2316 MICH APP 1[Juneplaintiff’s motion to hold Fields in contempt for violating the PPO.Following the investigation, MMCG concluded that plaintiff violated both HIPAA and MMCG’s privacy policy, terminated plaintiff’s employment, and gave plaintiff a “Corrective Action andDisciplinary Form” that cited plaintiff’s telephone conversationwith her attorney as a violation of HIPAA policy. Plaintiff thenbrought this action. MMCG moved for summary disposition,arguing that plaintiff had failed to establish a prima facie caseunder the WPA because plaintiff never reported the allegedviolation to a “public body” as defined under the WPA and becauseplaintiff could not have reasonably suspected that Fields’s conduct violated the stalking prohibition in the PPO. Additionally,MMCG argued that the WPA claim preempted the public policyclaim. The court, Randy L. Tahvonen, J., granted MMCG’smotion, concluding that plaintiff’s telephone conversation withher attorney was not a communication to a public body, thatFields’s conduct did not violate the PPO, and that the hospital didnot attempt to conceal a crime. Plaintiff appealed.The Court of Appeals held:1. MCL 600.2950(1)(j) prohibits stalking, which MCL750.411h(1)(d) defines as a willful course of conduct involvingrepeated or continuing harassment of another individual thatwould cause a reasonable person to feel terrorized, frightened,intimidated, threatened, harassed, or molested and that actuallycauses the victim to feel terrorized, frightened, intimidated,threatened, harassed, or molested. MCL 750.411h(1)(e) definesunconsented contact as any contact with another individual thatis initiated or continued without that individual’s consent or indisregard of that individual’s expressed desire that the contact beavoided or discontinued. MCL 750.411h(1)(d) requires a willfulcourse of conduct; however, even if Fields’s initial encounter withplaintiff in the hallway at MMCG was not willful, and wasinstead accidental, Fields’s subsequent verbal communicationwith plaintiff constituted willful, unconsented contact underMCL 750.411h(1)(e). Even if Fields could not have planned hercontact with plaintiff or avoided such contact, after she sawplaintiff, Fields made a deliberate choice to speak to her, and suchdeliberation made the communication willful, particularly inlight of the tone in which Fields spoke—a tone indicating that sheknew she had “gotten away with something she’s not supposed todo.” Fields’s conduct, in concert with her prior unconsentedcontacts with plaintiff, qualified as “stalking” in violation of thePPO.