            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



MARK RUSZKOWSKI and LORI                                           UNPUBLISHED
RUSZKOWSKI, Individually and as Guardians of                       August 20, 2019
KAYLA FORTIN, a legally incapacitated person,

              Plaintiffs-Appellees,

v                                                                  No. 341455
                                                                   Otsego Circuit Court
MUNSON HOME SERVICES, INC.,                                        LC No. 16-016361-NH

              Defendant-Appellant.


Before: GADOLA, P.J., and MARKEY and RONAYNE KRAUSE, JJ.

PER CURIAM.

        Defendant Munson Home Services, Inc., appeals by leave granted the trial court’s order
denying Munson’s motion for summary disposition under MCR 2.116(C)(10) with respect to
plaintiffs’ breach of contract claim. We affirm.

        In 2012, Munson executed a contract with North Country Community Mental Health.
The contract required Munson to provide home health and private-duty nursing care in the North
Country service region.1 The contract specified that it was governed by Michigan law. The
contract included an attachment and addenda identifying the services that Munson would provide
for plaintiff Kayla Fortin, who is 26 years old and is represented in this case by guardians and
plaintiffs Lori and Mark Ruszkowski—Kayla’s mother and stepfather. Kayla has Batten
Disease, which is a fatal, degenerative neurological disorder. During the period relevant to this
lawsuit, Kayla was blind, cognitively impaired, unable to speak, and lacked the capacity to move
on her own.



1
  North Country covers the northwest lower peninsula as the regional service provider for the
Michigan Community Mental Health Services Program, which dispenses federal Medicaid and
state funding for home health services for persons with disabilities.



                                               -1-
        In 2013, North Country and Munson executed an addendum to the contract, confirming,
among other matters, that the contract required Munson to provide 60 hours of care for Kayla per
week by licensed practical nurses (LPNs). Munson employed a couple of LPNs to care for
Kayla. Their duties included suctioning Kayla’s throat to remove respiratory secretions. In
October 2013, Kayla was hospitalized with pneumonia and respiratory problems, which
plaintiffs alleged resulted from improper suctioning performed by the LPNs. Kayla was again
hospitalized in November 2013, and during that stay a piece of tubing was found in her rectum.
Plaintiffs alleged that the tubing had broken off during suctioning and had passed through
Kayla’s digestive system. Plaintiffs acknowledged that Kayla used other tubing, including a
feeding tube, but they maintained that the broken tubing was a suctioning tube. Plaintiffs’ expert
physician could not confirm that the broken tubing was a suctioning tube or that the tubing had
broken during suctioning.

        In January 2014, plaintiff parents installed “nanny-cams” to videotape Kayla’s treatment
by the LPNs. The LPNs were informed of the fact that the nanny-cams were in operation.
Plaintiffs alleged that the recordings depicted one of the LPNs mistreating Kayla to such an
extent that it constituted physical abuse. Plaintiffs further asserted that the LPN’s misconduct
caused them, including Kayla, to suffer emotional distress and mental anguish. In February
2014, North Country terminated its contract with Munson. A subsequent investigation by the
Office of Recipient Rights, which included a review of the nanny-cam footage, resulted in the
conclusion that the LPN had treated and handled Kayla in an aggressive and degrading manner
that could reasonably be construed as having caused pain. Our review of the investigative report
reveals emotional, verbal, and physical abuse that is disturbing.

        This case has an extensive procedural history, with multiple amended complaints, causes
of action, and motions for summary disposition. Relevant to this appeal, plaintiffs alleged claims
of medical malpractice and breach of contract against Munson. It appears that the breach of
contract claim was predicated on the alleged abuse of Kayla and, to a lesser extent, the alleged
improper medical care and treatment of Kayla in regard to suctioning. The alleged damages
flowing from the breach of contract included emotional distress and mental anguish, as
purportedly suffered by all three plaintiffs. The trial court granted summary disposition in favor
of Munson under MCR 2.116(C)(10) with respect to the medical malpractice claim, concluding
that plaintiffs had failed to present evidence sufficient to create a genuine issue of material fact
on the elements of proximate cause and damages. In reaching this conclusion, the court focused
on the medical documentation and the testimony of the competing healthcare experts regarding
Kayla’s condition.

        With regard to the breach of contract claim, the trial court ultimately denied Munson’s
motion for summary disposition, which had challenged plaintiffs’ alleged entitlement to
damages, and which had disputed plaintiffs’ claim that they were intended third-party
beneficiaries to the contract between Munson and North Country. The court found that the
contract was one for personal services and that it was foreseeable that Kayla would suffer mental
anguish should the contract be breached. The trial court further ruled that there was a genuine
issue of material fact regarding whether Munson expected or should have expected plaintiff
parents to experience mental anguish if the contract for personal services were to be breached.
Finally, the trial court determined that there was a genuine issue of material fact concerning
whether plaintiff parents were intended third-party beneficiaries; the court appeared to accept

                                                -2-
that Kayla was a third-party beneficiary. Munson appeals by leave granted the trial court’s
denial of its motion for summary disposition with respect to the claim of breach of contract.
Ruszkowski v Munson Home Servs, Inc, unpublished order of the Court of Appeals, entered June
27, 2018 (Docket No. 341455).

        “This Court reviews de novo a trial court’s decision on a motion for summary
disposition.” Johnson v Vanderkooi, 502 Mich 751, 761; 918 NW2d 785 (2018). We also
review de novo the interpretation of a contract. Schmalfeldt v North Pointe Ins Co, 469 Mich
422, 426; 670 NW2d 651 (2003).

        Summary disposition under MCR 2.116(C)(10) is appropriate when, “[e]xcept as to the
amount of damages, there is no genuine issue as to any material fact, and the moving party is
entitled to judgment or partial judgment as a matter of law.” A motion brought pursuant to MCR
2.116(C)(10) tests the factual support for a party's action. Pioneer State Mut Ins Co v Dells, 301
Mich App 368, 377; 836 NW2d 257 (2013). “A trial court may grant a motion for summary
disposition under MCR 2.116(C)(10) if the pleadings, affidavits, and other documentary
evidence, when viewed in a light most favorable to the nonmovant, show that there is no genuine
issue with respect to any material fact.” Id. “A genuine issue of material fact exists when the
record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon
which reasonable minds might differ.” West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d
468 (2003). The trial court is not permitted to assess credibility, weigh the evidence, or resolve
factual disputes, and if material evidence conflicts, it is not appropriate to grant a motion for
summary disposition under MCR 2.116(C)(10). Pioneer State, 301 Mich App at 377. A court
may only consider substantively admissible evidence actually proffered by the parties. Maiden v
Rozwood, 461 Mich 109, 121; 597 NW2d 817 (1999). “Like the trial court's inquiry, when an
appellate court reviews a motion for summary disposition, it makes all legitimate inferences in
favor of the nonmoving party.” Skinner v Square D Co, 445 Mich 153, 162; 516 NW2d 475
(1994).

       On appeal, Munson first argues that the trial court’s summary disposition rulings were
inconsistent, where the court found that plaintiffs had failed to present sufficient evidence of
medical malpractice damages, but where plaintiffs were allowed go forward with their claim for
contract damages. Munson contends that the damages sought by plaintiffs for purposes of the
medical malpractice claim were identical to those sought in relation to the contract claim.
Munson reasons that if the evidence was insufficient as a matter of law to establish medical
malpractice damages, the evidence must also have been inadequate as a matter of law to show
contract damages.

        While we shall address the matter of contract damages in more detail below, we initially
reject the premise of Munson’s argument concerning the alleged inconsistency in the trial court’s
rulings. Assuming for the sake of argument that plaintiffs were requesting damages identical in
form, nature, and extent as to the medical malpractice claim and the breach of contract claim, the
fact that the trial court determined as a matter of law that damages for medical malpractice were
not shown does not necessarily mean that legal error is established in regard to recognizing a




                                               -3-
claim for contract damages. The trial court may have erred in its ruling on the question of
medical malpractice damages, but that issue is not before us.2 Setting aside for the moment the
third-party beneficiary issue, the only pertinent question is whether damages are available to
plaintiffs for the alleged breach of contract.

       In Lane v KinderCare Learning Ctrs, Inc, 231 Mich App 689, 691-692; 588 NW2d 715
(1998), this Court was confronted with the following facts:

               Plaintiff enrolled her eighteen-month-old daughter in day care with
       defendant. On December 9, 1992, plaintiff dropped off her daughter at defendant's
       facility at lunch time. Plaintiff's daughter had been prescribed medication, and
       plaintiff filled out an authorization form granting defendant's employees
       permission to administer the medication to her daughter that day. Just after 5:00
       p.m. on December 9, 1992, one of defendant's employee's placed the child, who
       had fallen asleep, in a crib in the infant room. At approximately 6:00 p.m.,
       defendant's employees locked the doors of the facility and went home for the day,
       apparently unaware that plaintiff's daughter was still sleeping in the crib. Shortly
       thereafter, plaintiff returned to the facility to pick up her daughter and found the
       facility locked and unlit. Plaintiff called 911. A police officer who responded to
       the call looked through a window of the facility, with the aid of a flashlight, and
       saw the child sleeping in the crib. Another officer then broke a window and
       retrieved the child from the building. The child was upset after the incident, but
       was not physically harmed. When plaintiff went into the facility to retrieve her
       daughter's belongings, she apparently found the medication authorization form
       and observed that it had not been initialed to indicate that the child had been given
       the medication. Plaintiff alleged that she suffered emotional distress as a result of
       the incident.

        One of the claims alleged by the plaintiff in Lane was breach of contract, which the
circuit court summarily dismissed. Id. at 692. This Court, in reversing the circuit court’s ruling,
acknowledged that damages for mental anguish or emotional distress are typically not
recoverable in breach of contract actions involving a commercial contract, but the Lane panel
distinguished commercial contracts from personal contracts, explaining:

               The recovery of damages for the breach of a contract is limited to those
       damages that are a natural result of the breach or those that are contemplated by
       the parties at the time the contract was made. Therefore, it is generally held that
       damages for emotional distress cannot be recovered for the breach of a


2
  We also note that the trial court engaged in an extremely in depth and lengthy discussion and
analysis of the medical malpractice claim. And in reviewing the court’s extensive ruling, it is
arguable that perhaps the court did not find that Kayla had no injuries, but rather simply
determined that she had no injuries caused by any medical malpractice. Furthermore, the
damages issue relative to the medical malpractice claim focused on Kayla’s injuries and not
damages incurred by her parents.


                                                -4-
       commercial contract. However, our Supreme Court has recognized that damages
       for emotional distress may be recovered for the breach of a contract in cases that
       do not involve commercial or pecuniary contracts, but involve contracts of a
       personal nature. Stewart v Rudner, 349 Mich 459, 469; 84 NW2d 816 (1957). Our
       Supreme Court explained:

               “When we have a contract concerned not with trade and commerce but
       with life and death, not with profit but with elements of personality, not with
       pecuniary aggrandizement but with matters of mental concern and solicitude, then
       a breach of duty with respect to such contracts will inevitably and necessarily
       result in mental anguish, pain and suffering. In such cases the parties may
       reasonably be said to have contracted with reference to the payment of damages
       therefor in event of breach. Far from being outside the contemplation of the
       parties they are an integral and inseparable part of it.”

                Examples of personal contracts include a contract to perform a cesarean
       section, a contract for the care and burial of a dead body, a contract to care for the
       plaintiff's elderly mother and to notify the plaintiff in the event of the mother's
       illness, and a promise to marry.

               We believe that a contract to care for one's child is a matter of “mental
       concern and solicitude,” rather than “pecuniary aggrandizement.” Therefore,
       like the contract to care for the plaintiff's elderly mother, the contract involved in
       the instant case was personal in nature, rather than commercial. At the time the
       contract was executed, it was foreseeable that a breach of the contract would
       result in mental distress damages to plaintiff, which would extend beyond the
       mere annoyance and vexation that normally accompanies the breach of a
       contract. Such damages are clearly within the contemplation of the parties to such
       a contract.

              The trial court granted summary disposition of plaintiff's breach of
       contract claim pursuant to MCR 2.116(C)(8) on the ground that plaintiff failed to
       plead that she suffered a definite and objective physical injury as a result of her
       emotional distress. However, damages may be awarded for emotional distress
       caused by a breach of a personal contract even where the emotional distress does
       not result in a physical injury. [Lane, 231 Mich App at 692-694 (citations and
       quotation marks omitted; emphasis added).]

       In this case, the trial court correctly found that the contract between Munson and North
Country constituted a contract for personal services that were devoted to the care and comfort of
Kayla. Damages can thus be awarded for emotional distress and mental anguish, even if Kayla
suffered no physical injury. The alleged injuries pertaining to the medical malpractice claim
were tied to issues related to the suctioning performed by the LPNs, not the alleged physical
abuse of Kayla. Indeed, Munson’s argument on appeal focuses on alleged physical injuries and




                                                -5-
its stance that there was inadequate evidence to support those claimed injuries, whether in the
context of the medical malpractice claim or the breach of contract claim. 3 Munson effectively
fails to address emotional distress or mental anguish damages for breach of contract relative to
Kayla and her parents and as alleged in the complaint and supported by deposition testimony.
Munson does not even mention the opinions in Lane and Stewart, even though the trial court
relied heavily if not exclusively on those cases. And medical or expert testimony was not
necessary to prove emotional distress and mental anguish. Plaintiffs can pursue a breach of
contract claim based on damages in the form of emotional distress or mental anguish, so long as
they qualify as third-party beneficiaries to the Munson-North Country contract, which leads us to
the second and final issue on appeal.

       Munson argues that the trial court erred in ruling that there existed a genuine issue of
material fact as to whether plaintiff parents (not Kayla) were intended third-party beneficiaries to
the contract, where the contract was solely for the benefit of Kayla, and where plaintiff parents
were not named or mentioned in the contract and did not receive any services under the contract.

       MCL 600.1405 provides in pertinent part:

               Any person for whose benefit a promise is made by way of contract, as
       hereinafter defined, has the same right to enforce said promise that he would have
       had if the said promise had been made directly to him as the promisee.

               (1) A promise shall be construed to have been made for the benefit of a
       person whenever the promisor of said promise had undertaken to give or to do or
       refrain from doing something directly to or for said person.

        The plain language of MCL 600.1405 reflects that not every person incidentally
benefitted by a contractual promise has a right to sue for breach of that promise; rather, only
intended, not incidental, third-party beneficiaries can sue for breach of contract. Schmalfeldt,
469 Mich at 427. The Schmalfeldt Court observed:

               A person is a third-party beneficiary of a contract only when that contract
       establishes that a promisor has undertaken a promise directly to or for that person.
       By using the modifier directly, the Legislature intended to assure that contracting
       parties are clearly aware that the scope of their contractual undertakings
       encompasses a third party, directly referred to in the contract, before the third
       party is able to enforce the contract. An objective standard is to be used to
       determine, from the form and meaning of the contract itself, whether the promisor
       undertook to give or to do or to refrain from doing something directly to or for the
       person claiming third-party beneficiary status. . . . [A] court should look no
       further than the form and meaning of the contract itself to determine whether a


3
  Some of the confusion in this case must be blamed on the drafting of plaintiffs’ complaint,
which did not clearly identify and delineate the causes of action, the facts supporting those
causes of action, and the alleged damages affixed to each cause of action.


                                                -6-
       party is an intended third-party beneficiary within the meaning of 1405. [Id. at
       428 (citations omitted).]

        Contrary to the trial court’s ruling and Munson’s argument, the record contains sufficient
information to conclude as a matter of law that plaintiff parents were intended third-party
beneficiaries. The contract specified that the relationship between Munson and North Country
was “that of purchaser and independent contractor.” The contract required Munson “[t]o provide
home health and private duty nursing services” and “[t]o provide community living supports to
individuals with developmental disabilities . . . .” The contract further directed Munson to
“promote the rights of [healthcare service] recipients and [to] protect recipients from violations
of rights guaranteed by the Michigan Mental Health Code and by other federal and state laws[.]”
In the event of suspected abuse or neglect of a recipient, or unexplained injury of a recipient, the
contract required Munson to immediately report the incident or injury. In addition, the contract
obligated Munson to “[f]ollow a Person-Centered Plan of Service . . . in the development of
treatment or habilitation plans and in the provision of services to recipients.” Similarly,
attachment A to the contract mandated that Munson provide care and implement services
“consistent with the consumer’s Plan of Service.” The applicable Plan of Service described the
nursing care for Kayla, including suctioning, administering medications, and completing tube
feedings. The Plan of Service then stated, “Kayla’s parents are able to complete all of the above
tasks but as they both work, skilled nursing is needed to ensure safety and comfort when they are
not available.” Included in the goals listed in the Plan of Service was “to provide services and
supports that will help alleviate the stress of caring for a child with special needs.” The objective
of this goal was for the “family [to] use respite care as needed over the next year.

        The plain language of the contract and the incorporated attachments demonstrated that
plaintiff parents were intended third-party beneficiaries; they are specifically referred to in the
contract. The contract expressly contemplated providing assistance to Kayla’s parents with
respect to her care and alleviating their stress, thereby directly benefitting plaintiff parents. We
hold, as a matter of law, that Kayla and her parents were intended third-party beneficiaries to the
Munson-North Country contract, allowing all three to sue for breach of contract. In sum, the
trial court did not err in denying Munson’s motion for summary disposition with regard to
plaintiffs’ claim for breach of contract.

     We affirm. Having fully prevailed on appeal, plaintiffs are awarded taxable costs under
MCR 7.219.




                                                              /s/ Michael F. Gadola
                                                              /s/ Jane E. Markey
                                                              /s/ Amy Ronayne Krause




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