Kassab v. Michigan Basic Property Insurance

Mallett, J.

I respectfully dissent from the majority’s opinion in order to express my disagreement with parts n and m. I concur in the result reached by the majority in part iv but write separately because I disagree with the analysis.

i

Relying on the "public accommodation” provisions of the Civil Rights Act, §§ 301 and 302, plaintiff states that defendants Michigan Basic, Metropolitan Adjustment, and Honeyman engaged in discriminatory practices when they reviewed his claim for fire insurance coverage. Particularly, plaintiff contends that defendants deprived him of *448the full and equal enjoyment of his fire insurance policy because of his Chaldean national origin.1

Section 301 defines "a place of public accommodation” as

a business, or an educational, refreshment, entertainment, recreation, health, or transportation facility, or institution of any kind, whether licensed or not, whose goods, services, facilities, privileges, advantages, or accommodations are extended, offered, sold, or otherwise made available to the public. [MCL 37.2301(a); MSA 3.548(301)(a).]

Section 302(a) provides:

Except where permitted by law, a person shall not:
Deny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service because of religion, race, color, national origin, age, sex, or marital status. [MCL 37.2302(a); MSA 3.548(302)(a).]

Michigan Basic is dependent upon the broadly based participation of members of the general public. The Court of Appeals correctly found that Michigan Basic is a business whose goods and services are extended, offered, sold, or otherwise made available to the public and, thus, is a place of public accommodation as defined under the Civil Rights Act. 185 Mich App 214.__

*449Finding that Michigan Basic is a place of public accommodation pursuant to § 301 does not resolve the issue of defendants’ liability under the Civil Rights Act, however. While plaintiff’s allegations that defendants engaged in discriminatory practices may not stand up to scrutiny at trial, I believe the Civil Rights Act encompasses such claims and therefore it is my opinion that defendants’ motion for summary disposition pursuant to MCR 2.116(C)(8) was properly denied.

A

It is generally accepted that legislative intent controls statutory construction. Owendale-Gagetown School Dist v State Bd of Ed, 413 Mich 1, 8; 317 NW2d 529 (1982). Legislative intent is commonly gleaned from the actual language used in the statute. Grand Rapids v Crocker, 219 Mich 178, 182-183; 189 NW 221 (1922). "If a statute is clear and unambiguous the 'plain meaning rule’ applies and precludes judicial interpretation or construction of the statute.” Paaso v Paaso, 170 Mich App 628, 635; 428 NW2d 724 (1988); see Owendale, supra. However, if a statute is ambiguous, a court may properly examine the legislative history of the statute to determine legislative intent. Luttrell v Dep’t of Corrections, 421 Mich 93; 365 NW2d 74 (1984). In this endeavor, " '[c]ourts do not exist in a vacuum. They may take cognizance of facts and events surrounding the passage and purpose of legislation.’ ” Id. at 103, quoting Wilkins v Ann Arbor City Clerk, 385 Mich 670, 691; 189 NW2d 423 (1971).

When there is any doubt about the meaning of statutory language, we have stated that "a court must look to the object of the statute, the harm which it is designed to remedy, and apply a rea*450sonable construction which best accomplishes the statute’s purpose.” In re Forfeiture of $5,264, 432 Mich 242, 248; 439 NW2d 246 (1989). We have also stated that statutory language must be interpreted in light of " 'the subject matter and . . . the general scope of the provision, and ... in light of the general purpose sought to be accomplished or the evil sought to be remedied by the . . . statute.’ ” Altman v Meridian Twp, 439 Mich 623, 636; 487 NW2d 155 (1992), quoting White v Ann Arbor, 406 Mich 554, 562; 281 NW2d 283 (1979).

For the disposition of this case, I suggest that the breadth of the following portion of § 302 is uncertain: "a person shall not . . . [d]eny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation . . . .” The task, therefore, is to determine whether the Legislature intended the activities complained of here to be included in this section of the Civil Rights Act.

Executive Order No. 1985-2 (the Preamble of the Civil Rights Act) provides in part:

Whereas, it has long been the policy of the State of Michigan and this Governor to programmatically insure that Blacks, Hispanics, Asians, Native Americans, Women and Handicappers are given equal participation opportunities in all aspects of American life ....

The purposes of the Civil Rights Act as declared by the Legislature are, in relevant part:

[T]o define civil rights; to prohibit discriminatory practices, policies, and customs in the exercise of *451those rights based upon religion, race, color, national origin, age, sex, height, weight, or marital status; . . . [and] to provide remedies and penalties .... [Preamble to 1976 PA 453.]

The act further expands on its broad remedial purposes by declaring:

The opportunity to obtain employment, housing and other real estate, and the full and equal utilization of public accommodations, public service, and educational facilities without discrimination because of religion, race, color, national origin, age, sex, height, weight, or marital status as prohibited by this act, is recognized and declared to be a civil right. [MCL 37.2102(1); MSA 3.548(102X1).]

These provisions, and §§ 301 and 302, clearly express the Legislature’s intent to "eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases,” Miller v C A Muer Corp, 420 Mich 355, 363; 362 NW2d 650 (1984), and guarantee to all Michigan citizens equal access to businesses that offer goods and services to the public. Moreover, the Civil Rights Act is remedial in nature and must be liberally construed to provide a broad remedy, Holmes v Haughton Elevator Co, 75 Mich App 198, 200; 255 NW2d 6 (1977), aff’d 404 Mich 36; 272 NW2d 550 (1978).

Although no Michigan case law is dispositive of the issue raised here, and contrary to the assertions of the majority,2 Ledsinger v Burmeister, 114 Mich App 12; 318 NW2d 558 (1982), is most illustrative of the scope of the public accommodations *452provisions of the Civil Rights Act.3 In Ledsinger, the plaintiff, an African-American, entered into a contractual agreement with the defendant to buy auto parts from the defendant’s place of business. After making a partial payment for the parts, the plaintiff was informed by the defendant that the price of the parts had increased. The defendant then verbally assailed the plaintiff at the defendant’s place of business and in the presence of third parties made racially motivated disparaging remarks. The Court of Appeals sustained the plaintiff’s claim of violation of the Civil Rights Act and held:

An inference that might fairly be drawn from plaintiff’s allegations is that defendant ultimately denied Mr. Ledsinger the sale of goods because of Ledsinger’s race, MCL 37.2302(a); MSA 3.548(302)(a). [Id. at 23.]

Ledsinger and the cases cited in footnote 3 of this dissent are examples of how the "public accommodations” provisions have been applied. Contrary to the conclusion reached by the Court of Appeals, Ledsinger is distinguishable from this case. Here, plaintiff has not alleged that Michigan Basic denied him an opportunity to purchase its goods, in other words, an insurance contract.4 Neither has plaintiff alleged that Michigan Basic *453denied him access to its facilities or refused to enter into a contract for insurance with him. Such actions are explicitly proscribed under the Civil Rights Act.

Nonetheless, I am persuaded that the act’s proscription of denying an individual access to goods and services extended, offered, or sold to the public applies here where plaintiff alleges discrimination in the assessment and servicing of his contract for fire insurance. Subject to the public accommodations provisions, Michigan Basic must offer all members of the public equal opportunities to transact business with the company. Servicing and adjusting insurance claims is a necessary part of the contractual good that Michigan Basic is legislatively mandated to offer. It follows then that to assess an insurance claim in a discriminatory fashion is to deny the insured that good. To prohibit a seller of insurance from discriminating against a member of the public who wishes to purchase insurance, yet offer no protection against a discriminatory assessment of that claim, grants an empty right. Discrimination in any phase of a contractual relationship entered into between an insured and an insurer is unacceptable.

B

The defendants argue that the Legislature intended the Uniform Trade Practices Act, MCL 500.2001 et seq.; MSA 24.12001 et seq., to be the exclusive regulatory scheme governing unlawful discrimination in the insurance industry.

Relevant portions of the Uniform Trade Practices Act provide:

The purpose of this uniform trade practices act is to regulate trade practices in the business of *454insurance in accordance with the intent of congress ... by defining, or by providing for the determination of . . . all such practices in this state which constitute unfair methods of competition or unfair or deceptive acts or practices, and by prohibiting the trade practices so defined or determined. [MCL 500.2002; MSA 24.12002.]

Utpa, § 2027(a) prohibits an insurer from refusing to insure because of race, color, creed, marital status, sex or national origin. MCL 500.2027(a)(i); MSA 24.12027(a)(i).5 Moreover, § 2026 specifically addresses inappropriate procedures in the servicing of insurance contracts.

(1) Unfair methods of competition and unfair or deceptive acts or practices in the business of insurance, other than isolated incidents, are a course of conduct indicating a persistent tendency to engage in that type of conduct and include:
(a) Misrepresenting pertinent facts or insurance policy provisions relating to coverages at issue.
(b) Failing to acknowledge promptly or to act reasonably and promptly upon communications with respect to claims arising under insurance policies.
(d) Refusing to pay claims without conducting a reasonable investigation based upon the available information.
(f) Failing to attempt in good faith to effectuate prompt, fair, and equitable settlements of claims in which liability has become reasonably clear. [MCL 500.2026; MSA 24.12026. Emphasis added.]

Under the utpa, an insurance company is under *455the authority of the Commissioner of Insurance and the extensive statutory and regulatory scheme of the Insurance Code of 1956. The utpa empowers the Insurance Commissioner to examine and investigate allegations of unfair or deceptive acts or practices prohibited by the utpa. Persons disagreeing with a decision or order of the commissioner may appeal to the circuit court. MCL 500.2041; MSA 24.12041.

Among other things, the commissioner is empowered to issue cease and desist orders, which may include payment of a monetary penalty, suspension or revocation of the person’s license, and refund of any overcharges. MCL 500.2040; MSA 24.12040. The utpa also specifies that every penalty in the code not otherwise provided for shall be sued for and recovered in the name of the people by the county prosecutor, or by the Attorney General. MCL 500.230; MSA 24.1230 with appellate review obtainable in the circuit court. MCL 500.2041; MSA 24.12041.

This Court recognizes that "[a] special statute shall be given effect as an exception to the general statute in order to carry out the legislative intent.” Port Huron Mayor v Port Huron City Treasurer, 328 Mich 99, 111; 43 NW2d 77 (1950). See also Grosse Pointe Twp Bd of Ed v Blondell, 251 Mich 528; 232 NW 375 (1930). When a general intention is expressed, and also a particular intention which is incompatible with the general one, the particular intention shall be considered as an exception to the general one. Attorney General ex rel Owen v Joyce, 233 Mich 619; 207 NW 863 (1926); Reed v Secretary of State, 327 Mich 108; 41 NW2d 491 (1950).

Although I believe the more specific statute, the utpa, provides an adequate framework for redress of plaintiff’s complaints, there is no statutory *456incompatibility between the utpa and the Civil Rights Act. I would hold that both the utpa and the Civil Rights Act are applicable here, and that if the Legislature intended the utpa to be the exclusive regulatory scheme to address discriminatory practices in the insurance industry, it could easily have so provided.

I am mindful that, " 'the intent of the Legislature, when discovered, must prevail [over] any existing rule of construction to the contrary.’ ” Metropolitan Council No 23 v Oakland Co Prosecutor, 409 Mich 299, 318-319; 294 NW2d 578 (1980), quoting Michigan Central R Co v Michigan, 148 Mich 151, 156; 111 NW 735 (1907). This Court further explained in Salas v Clements, 399 Mich 103, 109; 247 NW2d 889 (1976), that "departure from the literal construction of a statute is justified when such construction would produce an absurd and unjust result and would be clearly inconsistent with the purposes and policies of the act in question.” In light of the stated purposes of the Civil Rights Act and our charge to construe civil rights legislation broadly, the result reached in this dissent is neither absurd nor unjust.

Therefore, as to the plaintiff’s discrimination claims, I would affirm the Court of Appeals decision upholding the trial court’s denial of defendants’ motions for summary disposition pursuant to MCR 2.116(C)(8).

ii

It is well established in Michigan that general allegations of fraud without averment of specific facts are insufficient to state a cause of action, and the plaintiff must prove the fraud by satisfactory and convincing evidence. Hi-Way Motor Co v Int’l Harvester Co, 398 Mich 330, 336; 247 NW2d 813 *457(1976). The majority duly identifies the elements of fraud that plaintiff must allege in order to state a cause of action. However, a cause of action for fraud or misrepresentation may fail if the alleged representation involves a promise to do a future act. Such a promise does not constitute a fraudulent misrepresentation, but rather is contractual in nature. Boston Piano & Music Co v Pontiac Clothing Co, 199 Mich 141, 147; 165 NW 856 (1917). See also Higgins v Kenneth R Lawrence, DPM, PC, 107 Mich App 178, 184; 309 NW2d 194 (1981) ("an action for fraudulent misrepresentation must be predicated upon a statement relating to a past or an existing fact,” "[f]uture promises are contractual and do not constitute fraud”). Failure to perform a promise, moreover, cannot, by itself, constitute evidence of fraud. Id. Rather, a claim of fraud must be grounded upon a statement concerning a past or present fact or event that the speaker knows to be false at the time of the statement, or which is made with reckless disregard for its lack of accuracy. Hi-Way Motor Co, supra at 336.

This Court recognizes a "bad-faith” exception to the rule that a promise to act in the future does not constitute fraud.6 If the plaintiff alleges that the speaker had a fraudulent intent at the time of the promise relating to a future activity the fraud claim may be saved. Hi-Way Motor Co, supra at 338-339. Leib v Bostwick, 256 Mich 277, 280; 239 NW 405 (1931). See also Connellan v Himelhoch, 506 F Supp 1290, 1297 (ED Mich, 1981) (the complaining party must establish that the promise was given for the purpose of deceiving the promisee and influencing his conduct).

In the instant case, I believe plaintiff’s allega*458tions comply with the "bad-faith” exception. In count ii of his first amended complaint, plaintiff argues that at the time Michigan Basic and he entered into the contract for fire insurance, Michigan Basic represented that it would pay on the contract, having no intention of doing so.7 Assuming arguendo that plaintiff could prove Michigan Basic’s fraudulent intent, and accepting as true plaintiff’s factual allegations, as must be done when considering to grant a motion for summary disposition pursuant to MCE 2.116(C)(8), plaintiff’s fraud and misrepresentation claim is valid.

Accordingly, I concur in the majority’s decision to remand plaintiff’s fraud and misrepresentation claims for further proceedings.

Plaintiff’s first amended complaint states:

22. Defendants, their agents, representatives and employees, evaluated and rejected plaintiff’s claim not on the merits of the claim but based on plaintiff’s national origin, in violation of the Elliott-Larsen Civil Rights Act.
23. Defendants’ claimed reasons for rejecting the claim of plaintiff are pretextual.

Ante, p 441, n 11.

Other Michigan cases that have interpreted § 302(a) include: Civil Rights Dep’t ex rel Forton v Waterford Twp Dep’t of Parks & Recreation, 425 Mich 173; 387 NW2d 821 (1986) (the Court found no discrimination where a township had separate teams for boys and girls in its basketball program); Findling v T P Operating Co, 139 Mich App 30; 361 NW2d 376 (1984) (the Court upheld the denial of admission of youths under twenty-one years of age to a business that served alcohol); Ledsinger v Burmeister, supra; Cheeseman v American Multi-Cinema, Inc, 108 Mich App 428; 310 NW2d 408 (1981) (a theatre could deny admission to "k” rated movies to minors unaccompanied by a parent or legal guardian).

Plaintiff here has been insured by Michigan Basic since 1978.

The utpa was amended to prohibit discrimination on the basis of race, color, creed, marital status, sex, or natural origin in the same session that the Legislature passed the Civil Rights Act.

See Kovacs v Electronic Data Systems Corp, 762 F Supp 161 (ED Mich, 1990).

Plaintiff’s first amended complaint provides, among other things:

10. Defendant Michigan Basic made representations to plaintiff that it intended to pay and would pay for fire damage to his business property at 912 W. Seven Mile in Detroit.
11. Defendant’s representations were false.
12. Defendant made the representations knowing they were false or with reckless disregard for their truthfulness.
13. Defendant made the representations with the intention that plaintiff rely upon them.
14. Plaintiff relied upon the false representations of defendant in obtaining fire protection for his property.
15. As a direct and proximate result of defendant’s false representations and plaintiff’s reliance . . . plaintiff suffered the injuries and damages ....
17. Defendant represented to plaintiff that it intended to pay and would pay for fire damage to plaintiff’s business property, which representations were false.
18. Plaintiff believed defendant’s representations and was deceived by them.