James Duckworth v. Cherokee Insurance Company ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
JAMES DUCKWORTH, FOR PUBLICATION
August 6, 2020
Plaintiff-Appellee,
and
ZURICH AMERICAN INSURANCE COMPANY,
Intervening Plaintiff
v No. 347865
Wayne Circuit Court
CHEROKEE INSURANCE COMPANY, LC No. 14-005196-NF; 15-
006418-NF
Defendant-Appellee,
and
PROGRESSIVE MARATHON INSURANCE
COMPANY,
Defendant-Appellant.
Before: RIORDAN, P.J., and SHAPIRO and RONAYNE KRAUSE, JJ.
RIORDAN, P.J. (concurring).
I concur with the majority opinion’s de novo application of the four-factor test from
Adanalic v Harco Nat Ins Co, 309 Mich. App. 173, 190-191; 870 NW2d 731 (2015), and the
conclusion that plaintiff was an employee, rather than an independent contractor as the trial court
held on remand. However, I would end the analysis there rather than apply the additional factors
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set forth in McKissic v Bodine, 42 Mich. App. 203, 208–209; 201 NW2d 333 (1972)—a nonbinding
case involving a claim for Worker’s Compensation.1
In our prior opinion, we disagreed with Progressive that Adanalic and Celina Mut Ins Co
v Lake States Ins Co, 452 Mich. 84; 549 NW2d 834 (1996), were irreconcilable, and we interpreted
the cases as providing a two-step framework. First, “[u]nder Adanalic, a trial court must apply the
economic reality test when evaluating whether an injured party was an employee or an independent
contractor for purposes of the no-fault act.” Duckworth v Cherokee Ins Co (Duckworth I),
unpublished opinion per curiam of the Court of Appeals, issued January 16, 2018 (Docket Nos.
334353, 335241), p 6. Second, per Celina, “if an injured party is deemed to be an independent
contractor under the economic reality test, the next relevant inquiry becomes whether the injured
party was self-employed, i.e., acting on behalf of his or her business, at the time they were injured.”
Id.
I agree with the majority’s conclusion that only the first step is required in this case
because, under the Adanalic factors, plaintiff was a Speed Express employee. The Adanalic factors
are not exhaustive, Buckley v Prof Plaza Clinic Corp, 281 Mich. App. 224, 235; 761 NW2d 284
(2008), and our Supreme Court has not limited the McKissic factors to only Workers’
Compensation cases, Coblentz v City of Novi, 475 Mich. 558, 578; 719 NW2d 73 (2006)
(considering whether attorney fees were recoverable in an action involving the Freedom of
Information Act (FOIA), MCL 15.234(3)). However, there is no binding case law that requires
consideration of the McKissic factors in the no-fault context, and I decline to do so in this instance
where the Adanalic factors are sufficient to resolve the issue. If this Court intends to incorporate
the McKissic factors into the no-fault legal framework, it should do so clearly in a holding where
the application of the McKissic factors is outcome determinative, rather than addressing the issue
in dictum as the majority opinion does here.
I concur with the majority opinion in all other respects.
/s/ Michael J. Riordan
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Cases decided before November 1, 1990, are not binding precedent, MCR 7.215(J)(1), they
nevertheless can be considered persuasive authority, Auto–Owners Ins Co v Martin, 284 Mich. App.
427, 444 n 4; 773 NW2d 29 (2009).
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