Hayes v. Emerick , 164 Mich. App. 138 ( 1987 )

164 Mich. App. 138 (1987) 416 N.W.2d 350

HAYES
v.
EMERICK

Docket No. 90355.

Michigan Court of Appeals.

Decided September 14, 1987.

Becker & Van Cleef, P.C. (by Robert Van Cleef), for plaintiff.

MacArthur, Cheatham, Acker & Smith, P.C. (by James G. Gross), for defendant.

Before: WAHLS, P.J., and R.M. MAHER and J.T. KALLMAN,^[*] JJ.

PER CURIAM.

On June 9, 1983, plaintiff, Steven Russell Hayes, filed a medical malpractice lawsuit against defendant, Myron R. Emerick, D.O. On January 8, 1986, defendant's motion for summary disposition based upon governmental immunity was granted by the trial court. Plaintiff appeals as of right.

Plaintiff claims two errors on appeal, alleging that (1) the trial court erred when it granted summary disposition in favor of defendant on the ground that defendant was an agent of Macomb County, and (2) either the trial court erred in granting summary disposition since discovery was incomplete or plaintiff should be allowed an opportunity on remand to conduct further discovery on the issue of defendant's status as an independent contractor.

Macomb County Jail employed defendant to provide medical care to the inmates. While plaintiff was an inmate of the jail, he was examined by defendant. Plaintiff's complaint set forth in a medical malpractice action in which he asserted a claim of negligence against the defendant.

In discussing individual immunity in Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 592; 363 NW2d 641 (1984), the Supreme Court stated:

Lower level officers, employees, and agents are immune from tort liability only when they are (a) acting during the course of their employment and are acting, or reasonably believe they are acting, within the scope of their authority; (b) acting in good faith; and (c) performing discretionary-decisional, as opposed to ministerial-operational, acts.

Plaintiff argues that defendant was not a "lower level officer, employee or agent," but rather was an independent contractor. The trial court found that the defendant was an agent entitled to governmental immunity. The defendant argues on appeal that he was either an agent or an employee.

In Ross, supra, 420 Mich 624, n 38, the Supreme Court noted that "the individual tortfeasor's status as an employee, agent, independent contractor, etc., ... will generally be determined with reference to common-law tort and agency principles." Therefore, general principles of agency law must be examined. In Goldman v Cohen, 123 Mich App 224, 228-230; 333 NW2d 228 (1983), lv den 422 Mich 865 (1985), this Court reiterated the definition of the term "agent" found in Stephenson v Golden, 279 Mich 710, 734-735; 276 NW 849 (1937):

"`An agent is a person having express or implied authority to represent or act on behalf of another person, who is called his principal.' Bowstead on Agency (4th ed), 1.

"`An agent is one who acts for or in the place of another by authority from him; one who undertakes to transact some business or manage some affairs for another by authority and on account of the latter, and to render an account of it. He is a substitute, a deputy, appointed by the principal, with power to do the things which the principal may or can do.' 2 CJS 1025.

"The term `agent' includes factors, brokers, etc. 2 CJS 1025.

"As said in Saums v Parfet, 270 Mich 165; 258 NW 235 (1935):

"`"Agency" in its broadest sense includes every relation in which one person acts for or represents another by his authority.' 2 CJ 419.

"`"Whether an agency has been created is to be determined by the relations of the parties as they in fact exist under their agreements or acts." 21 RCL 819.'"

This Court is satisfied that defendant was an agent of Macomb County. The county was obligated by law to provide medical services to the inmates of its jail pursuant to MCL 791.262(f)(3); MSA 28.2322(f)(3). In order to fulfill this obligation, Macomb County contracted with defendant to provide medical care to the jail residents on the county's behalf. If defendant did not provide such services, Macomb County would be forced to retain another physician in order to meet its legal obligations. Although the defendant provided the services on an "individual fee-for-service basis," he was employed on an ongoing basis. Defendant did not maintain a personal patient clientele at the county jail; rather, his work with the inmates was due solely to his contract with Macomb County to render such services. As in Goldman, defendant was acting on behalf of his principal, in this case, Macomb County, and therefore was its agent.

This Court is satisfied that summary disposition was not granted prematurely and that a remand for further discovery is not necessary. Discovery was closed in this case in early November, 1984. The motion for summary disposition was not granted until January, 1986. Plaintiff did not argue at that time that further discovery was necessary. Plaintiff has failed to persuade this Court that discovery was incomplete.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.