Nastal v. Henderson & Associates Investigations, Inc

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED JANUARY 25, 2005

RONALD M. NASTAL AND
IRENE NASTAL, HIS WIFE,

Plaintiffs-Appellees,

v No. 125069

HENDERSON & ASSOCIATES
INVESTIGATIONS, INC., A MICHIGAN
CORPORATION, NATHANIAL STOVALL
AND ANDREW CONLEY,

Defendants-Appellants.

_______________________________

BEFORE THE ENTIRE BENCH

TAYLOR, C.J.

In this case, where plaintiff Ronald M. Nastal1 alleges

stalking by private investigators conducting surveillance,

we granted leave to consider if, and when, such

surveillance falls within the safe harbor in the stalking

statute that exempts “conduct that serves a legitimate

purpose.” MCL 750.411h(1)(c). The circuit court concluded

1
Plaintiff Irene Nastal’s claim is for loss of
consortium, which is derivative. Therefore, we refer to
Ronald Nastal as “plaintiff.”
that surveillance could serve a legitimate purpose but

that, here, there was a genuine issue of material fact

regarding whether the defendants’ surveillance continued to

serve a legitimate purpose after it had been discovered.

It thus determined that the viability of plaintiff’s

stalking claim depended upon a factual determination by the

jury. The Court of Appeals affirmed the circuit court’s
2
ruling on that issue. We conclude that surveillance by

licensed private investigators that contributes to the goal

of obtaining information, as permitted by the Private

Detective License Act, MCL 338.822(b)(i)-(v), is conduct

that serves a legitimate purpose. In the present case,

plaintiff failed to establish a genuine issue of material

fact that the conduct here complained of ever ceased

serving such purpose, notwithstanding the fact that

plaintiff observed the investigators following him. We

therefore reverse the judgment of the Court of Appeals and

remand this case to the circuit court for entry of summary

disposition in defendants’ favor.

I. FACTS AND PROCEDURAL HISTORY BELOW

Following a 1997 accident in which a tractor-trailer

collided with plaintiff Ronald Nastal’s car, Nastal sued

2
Nastal v Henderson & Associates Investigations,
unpublished opinion per curiam of the Court of Appeals,
decided October 30, 2003 (Docket No. 241200).

2

the tractor-trailer’s operator and owner, asserting

negligence by the driver and seeking damages for a closed

head injury. Defense of the action was undertaken by the

owner’s insurance carrier, Citizens Insurance Company of

America (Citizens).

In the course of discovery, neuropsychological and

neurosurgery evaluations were undertaken. The

neuropsychological expert concluded that Nastal was not

suffering any residual deficits as a result of a brain

injury and that he instead possessed a personality disorder

known as “somatoform pain disorder” that caused him to

perceive symptoms as being worse than can be objectively

determined. The neurosurgery evaluation, undertaken at the

behest of Nastal’s employer, concluded that, although he

had previously been diagnosed with a remote mild head

injury, the injury had been totally resolved and Nastal was

able to return to work. Moreover, the physician who

conducted that evaluation opined that Nastal appeared to be

suffering from depression and recommended a psychiatric

examination.

3

 The action was referred to case evaluation pursuant to

MCR 2.403,3 and the panel returned an award of $450,000 for

plaintiff. Citizens rejected the award, deeming it

excessive. Citizens also decided to again have plaintiff’s

medical records reviewed, refer plaintiff to Dr. Leon Quinn

for a psychiatric examination, and have an investigation

and surveillance of Nastal performed to monitor his

activities.

On June 8, 1999, Citizens’ adjuster, Penny Judd, sent

a fax to Henderson & Associates Investigations, Inc.

(Henderson), a licensed private investigation firm,

requesting a background check, activities check, and

surveillance of plaintiff. The particulars of how the

surveillance was to be conducted were left to Henderson.

Conducting the first surveillance on Wednesday, June

30, 1999, Andrew Conley, one of Henderson’s investigators,

followed Nastal as he drove from his home. After

surveilling him for forty-five minutes, Conley, because of

the way Nastal began to drive, thought Nastal may have been

attempting to determine if he was being followed by

Conley’s vehicle. Following that, Nastal parked his car

and entered a medical facility. Conley, unsure if Nastal

3
Case evaluation was referred to as mediation at the
time it was conducted in the action. MCR 2.403, 2000 Staff
Comment.

4

was aware of the surveillance, waited outside in his car in

a parking lot across the street. When Nastal did come out,

he came over to Conley’s car and asked Conley if he was

following him. Conley denied that he was, and Nastal

replied by shouting profanities at him. Shortly

thereafter, evidently alerted by the personnel of the

medical facility, the local police appeared and spoke to

Conley and Nastal. Nastal, agitated and cursing, repeated

his concerns that he was being followed and that Conley had

untruthfully denied following him. The officer told Nastal

to calm down and shortly thereafter Conley left to call his

supervisor, Gregory Henderson. Gregory Henderson

instructed Conley to terminate the surveillance for that

day because, as both Gregory Henderson and Conley

testified, when the subject of surveillance has discovered

the surveillance, there is little purpose in continuing it

at that time because the subject will not act unaffectedly

or naturally.

A week later, on July 6, 1999, Conley and another

investigator, Nathaniel Stovall, followed Nastal in

separate cars as he drove to a number of locations. After

Nastal returned home later in the day, Conley and Stovall

parked their cars in separate places near his house to

observe his activities. Nastal apparently noticed Conley

5

and Stovall and called the police. Conley testified that

he not only did not speak to the police officers that day,

but also was unaware of their presence, and further had no

indication that Nastal had called them or was aware of the

reactivated surveillance. Stovall testified that he spoke

to the police officers and was told, not that Nastal had

called, but that someone in the neighborhood had called to

report a suspicious vehicle. Stovall indicated that a

police inquiry of this sort is a frequent occurrence when

doing surveillance and, accordingly, it did not cause him

to necessarily think that Nastal was aware of the

surveillance.

On July 7, 1999, Henderson informed Judd that their

surveillance had revealed that Nastal had been active, and

that Nastal had confronted Conley on the first day of

surveillance. Although Judd was concerned that Nastal

might alter his activities because he was aware of the

surveillance, she authorized further surveillance.

On July 8, 1999, an uneventful surveillance was

conducted because plaintiff stayed at home all day. When

informed of this, Judd stated that, because Nastal had

confronted Conley at the beginning of the week and might

suspect that he was being followed, surveillance should be

discontinued for a few weeks. Gregory Henderson described

6

this period of nonsurveillance as a "cooling off" period,

and indicated that it is usually employed by private

investigators when they are concerned that the subject of

their surveillance has detected their presence.

Twenty-two days later, on July 31, 1999, Conley and

Stovall, again in separate cars, followed Nastal to a mall.

While so engaged, both Conley and Stovall indicated that

Nastal got behind Conley’s car and appeared to be trying to

write down Conley’s license plate number. Further, once in

the parking lot of the mall, plaintiff also turned in tight

circles and appeared to by trying to get behind Stovall’s

car. Gregory Henderson, when made aware of this by a call

from Conley, told both investigators to not terminate the

surveillance because neither man could confirm that Nastal

was actually aware that a surveillance was being conducted.

Yet later, when Nastal began to attempt to evade Conley and

Stovall, Henderson told Conley and Stovall to terminate the

surveillance for that day because he believed it was no

longer productive.

Dr. Quinn’s report was received in Citizens’ mailroom

on Friday, July 30, 1999, but read by Judd early the next

week. In the report, Dr. Quinn concluded that Nastal was

primarily suffering from a depressive disorder and that

there were undoubtedly more factors than just the 1997

7

accident causing his depression. He further recommended

that plaintiff be referred to a psychiatrist or mental

health clinic for treatment and that any surveillance being

conducted be discontinued. He later explained that the

recommendation to discontinue surveillance was based on his

concern that the continued surveillance could make Nastal

angry.

On August 4, 1999, Gregory Henderson called Judd and

informed her that Nastal had again detected Conley and

Stovall’s presence during the fourth surveillance on July

31, 1999. Judd told Gregory Henderson to stop conducting

surveillance on the basis of Quinn’s recommendation and her

belief that the surveillance was not proving to be

productive.

Over a year later on September 19, 2000, plaintiff

filed a civil action alleging, among others, a claim of

civil stalking pursuant to MCL 600.2954 against Henderson,

Conley, and Stovall. Defendants moved for summary

disposition pursuant to MCR 2.116(C)(7), arguing that

surveillance serves a legitimate purpose pursuant to MCL

750.411h(1)(c) and, thus, that one engaged in it cannot be

guilty of stalking. They asserted that plaintiff’s

stalking claim was barred because of immunity granted by

law. They also asserted that Nastal had failed to state a

8

claim on which relief could be granted, MCR 2.116(C)(8),

and that, in any event, even assuming surveillance could in

some circumstances be transformed into stalking, Nastal had

produced no genuine issue of material fact on that point,

MCR 2.116(C)(10). In the alternative, defendants asserted

that even if Nastal were emotionally distressed by the

actions of defendants, which constitutes a requirement of

the statute, MCL 750.411h(1)(c), the requirement that the

actions also would have emotionally distressed a reasonable

person could not be shown because no reasonable litigant

could claim that pretrial discovery is emotionally

distressing.

The circuit court denied defendants’ motion on the

basis of its determination that defendants’ surveillance

initially served a legitimate purpose but that a genuine

issue of material fact existed regarding whether the

surveillance continued to serve that purpose after

plaintiff discovered it. The court did not address

defendants’ alternative argument.

On appeal, the Court of Appeals affirmed the trial

court’s ruling on that issue, concluding that a genuine

issue of material fact existed regarding the legitimacy of

the surveillance after plaintiff confronted Conley during

the first surveillance because, as the Court of Appeals

9

interpreted the record, it had been conceded by defendants

that surveillance can serve no purpose after the subject

discovers it. The panel also rejected defendants’

alternative argument on the basis that the issue whether a

reasonable person would have suffered emotional distress as

a result of defendants’ surveillance was a question for the

trier of fact.

We granted defendants leave to appeal. 470 Mich 869

(2004).

II. STANDARD OF REVIEW

We review de novo the grant or denial of a motion for

summary disposition. Kreiner v Fischer, 471 Mich 109, 129;

683 NW2d 611 (2004). Questions of statutory interpretation

are also reviewed de novo. Id.

When interpreting statutes, our primary goal is to

give effect to the intent of the Legislature. In re MCI

Telecom Complaint, 460 Mich 396, 411; 596 NW2d 164 (1999).

In doing so, our first step is to review the language of

the statute itself. Id. The words used by the Legislature

are given their common and ordinary meaning. Veenstra v

Washtenaw Country Club, 466 Mich 155, 160; 645 NW2d 643

(2002); MCL 8.3a. If the statutory language is

unambiguous, we must presume that the Legislature intended

the meaning it clearly expressed and further construction

10

is neither required nor permitted. Sun Valley Foods Co v

Ward, 460 Mich 230, 236; 596 NW2d 119 (1999).

Defendants moved for summary disposition pursuant to

MCR 2.116(C)(7), (8), and (10), but the circuit court

relied on MCR 2.116(C)(10) in denying defendants’ motion.

A motion under MCR 2.116(C)(10) tests the factual

sufficiency of the complaint. Maiden v Rozwood, 461 Mich

109, 120; 597 NW2d 817 (1999). The trial court must

consider the affidavits, pleadings, depositions,

admissions, and other evidence submitted by the parties,

MCR 2.116(G)(5), in the light most favorable to the party

opposing the motion. Maiden, supra at 120. Where the

proffered evidence fails to establish a genuine issue

regarding any material fact, the moving party is entitled

to judgment as a matter of law. MCR 2.116(C)(10), (G)(4).

Quinto v Cross & Peters Co, 451 Mich 358; 547 NW2d 314

(1996).

III. ANALYSIS

In the early 1990s, the Legislature sought to address

the inadequacy of existing criminal law, common-law causes

of action, and court-ordered personal protection orders in

protecting those who are maliciously followed, harassed, or

intimidated by stalkers. Therefore, in 1992, it followed

the lead of approximately two dozen other states that had

11

enacted legislation specifically aimed at stalking and the

special problems and circumstances surrounding it by

criminalizing the offenses of stalking, MCL 750.411h, and

aggravated stalking, MCL 750.411i. The Legislature also

simultaneously amended the Revised Judicature Act to give a

victim of stalking a civil action against the stalker, MCL

600.2954, with the elements of civil stalking being the

same as those in the criminal statutes, MCL 600.2954(1).

Stalking is defined in MCL 750.411h(d), which states:

“Stalking” means a willful course of conduct
involving repeated or continuing harassment of
another individual that would cause a reasonable
person to feel terrorized, frightened,
intimidated, threatened, harassed, or molested
and that actually causes the victim to feel
terrorized, frightened, intimidated, threatened,
harassed, or molested.
Accordingly, under Michigan civil and criminal law,

stalking constitutes a willful course of conduct whereby

the victim of repeated or continuous harassment actually

is, and a reasonable person would be, caused to feel

terrorized, frightened, intimidated, threatened, harassed,

or molested.

In defining harassment, the Legislature stated:

“Harassment” means conduct directed toward a
victim that includes, but is not limited to,
repeated or continuing unconsented contact[4] that

4
“Unconsented contact” is defined as:

12

 would cause a reasonable individual to suffer
emotional distress and that actually causes the
victim to suffer emotional distress. Harassment
does not include constitutionally protected
activity or conduct that serves a legitimate
purpose. [MCL 750.411h(1)(c).]

Thus, there must be two or more acts5 of unconsented contact

that actually cause emotional distress to the victim and

[A]ny contact with another individual that
is initiated or continued without that
individual's consent or in disregard of that
individual's expressed desire that the contact be
avoided or discontinued. Unconsented contact
includes, but is not limited to, any of the
following:

(i) Following or appearing within the
sight of that individual.

(ii) Approaching or confronting that
individual in a public place or on private
property.

(iii) Appearing at that individual's
workplace or residence.

(iv) Entering onto or remaining on
property owned, leased, or occupied by that
individual.

(v) Contacting that individual by
telephone.

(vi) Sending mail or electronic
communications to that individual.

(vii) Placing an object on, or
delivering an object to, property owned, leased,
or occupied by that individual. [MCL
750.411h(1)(e).]

5
MCL 750.411h(1)(a).

13

would also cause a reasonable person such distress. In any

event, however, conduct that is constitutionally protected

or serves a legitimate purpose cannot constitute harassment

or, derivatively, stalking.

It is that safe harbor of “conduct that serves a

legitimate purpose” that is the linchpin of this case. MCL

750.411h does not itself define “conduct that serves a

legitimate purpose.” Accordingly, because these are terms

of common usage, we give them their plain and ordinary

meaning by consulting dictionary definitions. Horace v

City of Pontiac, 456 Mich 744, 755-756; 575 NW2d 762

(1998).

The Random House Webster’s College Dictionary (2001)

defines “serve” as “to answer the purpose,” “to be in the

service of; work for,” “to answer the requirements of,” or

“to contribute to; promote.” It further defines

“legitimate,” in part, as “according to the law; lawful,”

“in accordance with established rules, principles, or

standards,” “in accordance with the laws or reasoning;

valid,” “justified, genuine.” Id. Thus, given the plain

and ordinary import of the terms used by the Legislature,

we conclude that the phrase “conduct that serves a

legitimate purpose” means conduct that contributes to a

14

valid purpose that would otherwise be within the law

irrespective of the criminal stalking statute.

The defendants here, private investigators licensed

pursuant to MCL 338.821 et seq., are authorized to

“obtain[] information with reference to any of the

following”:

(i) Crimes or wrongs done or threatened
against the United States or a state or territory
of the United States.

(ii) The identity, habits, conduct,
business, occupation, honesty, integrity,
credibility, trustworthiness, efficiency,
loyalty, activity, movement, whereabouts,
affiliations, associations, transactions, acts,
reputation, or character of a person.

(iii) The location, disposition, or
recovery of lost or stolen property.

(iv) The cause or responsibility for fires,
libels, losses, accidents, or damage or injury to
persons or property.

(v) Securing evidence to be used before a
court, board, officer, or investigating
committee. [MCL 338.822(b).]

Accordingly, surveillance,6 when it is conducted to obtain

evidence concerning a party’s claim in a lawsuit, is valid

6
See Random House Webster’s College Dictionary (2001),
which defines “surveillance” as “a watch kept over someone
or something, esp. over a suspect, prisoner, etc.”, and
Black’s Law Dictionary (6th ed), which defines it as
“Oversight, superintendence, supervision. Police
investigative technique involving visual or electronic
observation or listening directed at a person or place
(e.g., stakeout, tailing of suspects, wiretapping). Its
objective is to gather evidence of a crime or merely to
accumulate intelligence about suspected criminal activity.”

15

and well within the law. Indeed, once involved in

litigation, such as here, it is even more reasonable, in

fact predictable, in a state such as Michigan that has a

“strong historical commitment to a far-reaching, open and

effective discovery practice,” Daniels v Allen Industries,

Inc, 391 Mich 398, 403; 216 NW2d 762 (1974),7 that

surveillance to secure or even lead to evidence is

permitted “in order to narrow the range of disputed issues

which might otherwise needlessly waste the parties’ and

judicial resources.” Id. at 406, 412.

It is only when the surveillance ceases to serve or

contribute to the purpose of securing the information

permitted by MCL 338.822(b) that conduct would be outside

the statutory safe harbor of MCL 750.411h(1)(c) and a civil

action for stalking could be maintained.

Here, the circuit court and the Court of Appeals

incorrectly concluded that there was a genuine issue of

material fact concerning whether defendants’ surveillance

ceased to serve a legitimate purpose once Nastal discovered

it. There is no testimony to this effect. Rather, Conley,

7
See also Dorris v Detroit Osteopathic Hosp, 460 Mich
26, 36; 594 NW2d 455 (1999), and Domako v Rowe, 438 Mich
347, 359; 475 NW2d 30 (1991). Discovery was liberalized in
the General Court Rules of 1963 and opened even more
expansively in the Michigan Court Rules of 1985. Domako,
supra at 359.

16

Stovall, and Gregory Henderson stated that once the subject

of surveillance discovers that he is being observed, and

the person performing the surveillance knows that the

subject has detected his presence, any further surveillance

of the subject at that particular time may serve no further

purpose because the subject may modify his activities.

Yet, as the testimony of both Gregory Henderson and Judd

shows, they believed that further surveillance conducted at

later times, especially after a cooling off period, could

produce information useful to the case. Nastal produced no

evidence to rebut this testimony as required by MCR

2.116(G)(4) and, therefore, failed to satisfy his burden of

establishing that a genuine issue of material fact existed

regarding whether defendants’ surveillance continued to

serve a legitimate purpose. In such circumstances, summary

disposition in favor of the moving party is required.

Maiden, supra at 120.8 Accordingly, the trial court

improperly denied defendants’ motion for summary

disposition and the Court of Appeals improperly affirmed

that denial.

8
The dissent would reverse the burden of proof
requirement and call on the defendants to establish a
legitimate purpose rather than requiring the plaintiff to
create a genuine issue of material fact regarding the
elements of his cause of action. In so holding, it is
inconsistent with MCR 2.116(G)(4) and Maiden, supra.

17

 IV. CONCLUSION

Surveillance by a licensed private investigator is

conduct that serves a legitimate purpose as long as the

surveillance serves or contributes to the purpose of

obtaining information, as permitted by MCL 338.822(b).

Thus, surveillance conducted for and contributing to such

purposes is beyond the stalking statute. The conduct at

issue in this case served a legitimate purpose even after

plaintiff observed the private investigators following him.

Accordingly, the judgment of the Court of Appeals is

reversed and the case is remanded to the circuit court for

the entry of summary disposition in defendants’ favor.

Clifford W. Taylor
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

18

 S T A T E O F M I C H I G A N

SUPREME COURT

RONALD M. NASTAL and IRENE NASTAL,

Plaintiffs-Appellees,

v No. 125069

HENDERSON & ASSOCIATES
INVESTIGATIONS, INC., NATHANIEL
STOVALL and ANDREW CONLEY,

Defendants-Appellants.

_______________________________

CAVANAGH, J. (dissenting).

The majority’s analysis in this case is flawed for one

basic reason—it simply misapplies the law to the facts.

This misapplication results in the majority reaching a

conclusion that is contrary to the words used by the

Legislature in the stalking statute, MCL 750.411h(1)(c).

The majority errs because it does not truly examine whether

defendants’ conduct served a legitimate purpose. Because I

believe that a genuine issue of material fact exists

regarding whether the conduct at issue served a legitimate

purpose, I respectfully dissent.

The civil stalking statute, MCL 600.2954, creates a

civil cause of action for victims of stalking as defined by

the criminal stalking statute, MCL 750.411h. “Stalking” is
defined as “a willful course of conduct involving repeated

or continuing harassment of another individual that would

cause a reasonable person to feel terrorized, frightened,

intimidated, threatened, harassed, or molested and that

actually causes the victim to feel terrorized, frightened,

intimidated, threatened, harassed, or molested.” MCL

750.411h(1)(d). “Harassment” is defined as “conduct

directed toward a victim that includes, but is not limited

to, repeated or continuing unconsented contact that would

cause a reasonable individual to suffer emotional distress

and that actually causes the victim to suffer emotional

distress.” MCL 750.411h(1)(c). Notably, MCL 750.411h(1)(c)

further states, “Harassment does not include

constitutionally protected activity or conduct that serves

a legitimate purpose.” (Emphasis added.)

Because the statutory language at issue in this case

is clear and unambiguous, we must enforce the statute as

written and follow its plain meaning, giving effect to the

words chosen by the Legislature. People v Barbee, 470 Mich

283, 286; 681 NW2d 348 (2004). Thus, to give effect to the

words of the stalking statute, once a legitimate purpose is

established, the essential question must be how the

defendant’s conduct at issue serves that legitimate

purpose. In this case, the legitimate purpose was for

2

defendants to provide information that would assist the

insurance company that hired them in defending against

plaintiff’s claim. The examination, therefore, entails

looking at how defendants’ conduct served that legitimate

purpose.

After plaintiff filed his underlying lawsuit, Citizens

Insurance Company of America hired defendant Henderson &

Associates Investigations, Inc. (Henderson), to conduct an

“activities check” on plaintiff. The purpose of the

activities check was to determine what plaintiff’s

activities entailed. During one instance of surveillance,

defendant Andrew Conley, a private investigator working for

Henderson, followed plaintiff from his house to a

restaurant and then to plaintiff’s appointment with his

therapist. Plaintiff noticed that he was being followed,

and he spoke to his therapist about the incident.

Plaintiff and his therapist went outside where plaintiff

asked Conley if he was following plaintiff. Conley said he

was not. Plaintiff did not believe this and became upset;

he also wrote down the license plate number of the car

Conley was driving. Conley then drove off and parked about

one hundred to three hundred yards away before ultimately

terminating the surveillance. The critical question in

this incident is how the private investigator’s actions

3

served the legitimate purpose of gathering information

about plaintiff to be used to defend against plaintiff’s

lawsuit. For example, how does following plaintiff and

then lying to plaintiff about being followed serve the

legitimate purpose of gathering information?

In some cases, following a person and lying about it

to the person being followed may indeed be conduct that

serves a legitimate purpose. For example, if an undercover

police officer is conducting surveillance of a suspect and

is then confronted by the suspect, the police officer may

lie so that the undercover operation is not disclosed.

However, in this case, defendants contend that plaintiff

should not have been frightened by being followed because

plaintiff was a party to a lawsuit. Defendants have

repeatedly argued that “[a] reasonable person would

understand that he’s going to be under surveillance if that

person files a lawsuit.”1 Therefore, I question what

legitimate purpose was served by following plaintiff and

then lying to plaintiff and telling him that he was not

being followed. If plaintiff should already know that he

may be followed because he is a party to a lawsuit, I fail

1
Again, during oral argument, defendants argued “that
a reasonable person who would be a plaintiff in a personal
injury lawsuit, he or she has an opportunity to know in
fact that at some point during the litigation it may become
an issue where he or she is placed under surveillance.”

4

to see how admitting to plaintiff that he is being followed

because of the pending lawsuit would hamper the

investigation. I understand the importance of wanting to

be as secretive as possible about the actual surveillance,

but once plaintiff realized that someone was following him,

I do not see how, in this case, the legitimate purpose was

served by lying.

Defendants cannot have it both ways. Defendants

cannot argue that lying to plaintiff is critical in this

case to keep the surveillance a secret so they can

ascertain needed information. Defendants have already

argued that plaintiff—by virtue of filing a lawsuit—should

have known that he was likely to be followed and,

therefore, should not have been afraid to see someone

following him. Therefore, defendants must explain how, in

this case, following plaintiff and then lying to him about

it served a legitimate purpose.

In another instance, plaintiff was aware of being

followed, and he detailed defendants’ conduct in following

him in and out of traffic. Another time, plaintiff

realized he was being followed when he came out of his

doctor’s office. He telephoned his wife and she did not

believe him when he told her, “half crying,” that he was

being followed. Because plaintiff was so afraid,

5

plaintiff’s wife was forced to come home. When she

arrived, there were two cars parked near their home. After

dressing like the plaintiff and leaving her home,

plaintiff’s wife realized that the two cars were following

her, apparently because the drivers thought they were

following her husband.

During the final incident of surveillance, private

investigators followed plaintiff as he drove around in

circles in a parking lot attempting to write down the

license plate numbers of the cars the investigators were

driving. They continued to follow plaintiff as he drove

through traffic trying to “lose” the men who were following

him. They drove through yellow lights and made an illegal

right turn to follow plaintiff. One of the private

investigators stated that it was clear plaintiff was trying

to get away from them, but they continued to follow him

anyway. It is important to note that at no time did

defendants ever admit to plaintiff that they were indeed

following him or tell him why he was being followed.

As stated, the issue is whether the conduct engaged in

by defendants served a legitimate purpose. It is important

to not merely examine the conduct at issue in a vacuum.

Therefore, it is not enough to merely argue that

defendants’ conduct was appropriate because they had a

6

legitimate purpose to provide information related to

plaintiff’s underlying lawsuit. Applying the statute in

this manner disregards the words chosen by the Legislature

and results in the majority essentially providing a

generalized exemption for private investigators. The

appropriate analysis requires more than the

oversimplification adopted by the majority. In following,

“tailing,” sleuthing, or surveilling, is there no limit on

an investigator’s tactics? I think not. A private

investigator’s conduct—no matter how outrageous—is not

excused merely because he is gathering information for a

client. There must be some professional standards that,

when violated, remove the investigator from the “legitimate

purpose” shield.

A proper application of the law indicates that whether

defendants’ conduct served a legitimate purpose presents a

genuine issue of material fact. Accordingly, because a

reasonable juror could find that the conduct did not serve

a legitimate purpose, I must respectfully dissent.

Michael F. Cavanagh
Marilyn Kelly

7