             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



JOHN A. COOK,                                                          UNPUBLISHED
                                                                       April 2, 2019
               Plaintiff-Appellant,

v                                                                      No. 341330
                                                                       Shiawassee Circuit Court
FARM BUREAU LIFE INSURANCE                                             LC No. 2016-009077-NZ
COMPANY OF MICHIGAN, FARM BUREAU
MUTUAL INSURANCE COMPANY OF
MICHIGAN, and FARM BUREAU GENERAL
INSURANCE COMPANY OF MICHIGAN,

               Defendants-Appellees.


Before: M.J. KELLY, P.J., and SERVITTO and BOONSTRA, JJ.

BOONSTRA, J. (concurring).

        I concur in the result reached by the majority. I write separately because I would affirm
for the reasons articulated by the trial court, i.e., that plaintiff, as an independent contractor, may
not pursue a claim under the Elliot Larsen Civil Rights Act (ELCRA), MCL 37.2101 et seq.

        The starting point of my analysis is, of course, the statutory language itself. See United
States Fidelity Ins & Guaranty Co v Mich Catastrophic Claims Ass’n (On Rehearing), 484 Mich
1, 13; 795 NW2d 101 (2009). The goal of statutory interpretation is to give effect to the intent of
the Legislature. Mich Ed Ass’n v Secretary of State (On Rehearing), 489 Mich 194, 217; 801
NW2d 35 (2011). This Court must enforce clear statutory language as written. Velez v Tuma,
492 Mich 1, 16-17; 821 NW2d 432 (2012).

       The ELCRA provides in relevant part that an employer shall not:

       (a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an
       individual with respect to employment, compensation, or a term, condition, or
       privilege of employment, because of religion, race, color, national origin, age, sex,
       height, weight, or marital status.




                                                 -1-
       (b) Limit, segregate, or classify an employee or applicant for employment in a
       way that deprives or tends to deprive the employee or applicant of an employment
       opportunity, or otherwise adversely affects the status of an employee or applicant
       because of religion, race, color, national origin, age, sex, height, weight, or
       marital status. [MCL 37.2202(a), (b) (emphases added).]

        The statute thus proscribes certain conduct relating to “employees” and “applicants” for
“employment.” Id. Relevant to a claim of age discrimination, the conduct forbidden includes (1)
failing or refusing to hire, recruit, or discharge “an individual with respect to employment,
compensation, or a term, condition or privilege of employment” because of age; (2) “otherwise
discriminat[ing]” against “an individual with respect to employment, compensation, or a term,
condition or privilege of employment” because of age; and (3) depriving an “employee or
applicant” of “an employment opportunity” because of age, or otherwise affecting the status of
an employee or applicant. Id.

        This Court has expressly held that “[c]laims against an employer under [MCL 37.2202]
may only be brought by employees.” Badiee v Brighton Area Schools, 265 Mich App 343, 360-
361; 695 NW2d 521 (2005). Consequently, and based upon the plain language of the statute, it
is inherent within the ELCRA that it relates only to an existing or prospective employment
relationship between an employer and employee.

        Further, we have expressly held that “[a]n independent contractor is not an employee, and
may not bring claims under [MCL 37.2202].” Id.; see also Kamalanth v Mercy Mem Hosp Corp,
194 Mich App 543, 554; 487 NW2d 499 (1992). An independent contractor has no employment
relationship with an employer; rather, the independent contractor “is one who, carrying on an
independent business, contracts to do work without being subject to the right of control by the
employer as to the method of work but only as to the result to be accomplished.” Parham v
Preferred Risk Mut Ins Co, 124 Mich App 618, 622-623; 335 NW2d 106 (1983), citing
Marchand v Russell, 25 Mich 96; 241 NW2d 209 (1932).

       Plaintiff in this case indisputably was an independent contractor of defendants. Plaintiff
and defendant were parties to a Farm Bureau Insurance Agent Agreement (Agreement) that
described its purpose as that of “reduc[ing] to writing the objectives, obligations, and
responsibilities essential to the relationship between the Agent [plaintiff], operating as an
independent contractor, and the Companies [defendants].” (Emphasis added).

       Moreover, the Agreement contained the following provisions:

                              Independent Contractor Relationship

       The Companies believe that insurance agents who operate as independent
       contractors are best able to provide the creative selling, professional counseling,
       and prompt, skillful service essential to the creation and maintenance of
       successful multiple line insurance companies and agencies. The Companies do
       not seek, and will not assert, control over the Agent’s daily activities, provided
       that the Agent does not violate applicable laws or any terms of this Agreement or
       any agreement or guidelines ancillary to this Agreement. The Agent agrees to

                                               -2-
exercise his/her own judgment as to the time, place, and manner of soliciting
insurance, servicing Michigan Farm Bureau members and Farm Bureau Insurance
policyholders and otherwise carrying out the provisions of this Agreement.

                                       ***

                                 The Agreement

In consideration of the covenants and promises contained in this Agreement and
other good and valuable considerations, the Companies and the Agent hereby
agree as follows:

                                       ***

C. Independent Contractor.

1. The Agent acknowledges that he/she is an independent contractor for all
purposes and situations governed by this Agreement. The relationship between
the Agent and the Companies created by this Agreement shall be governed by
those rules and laws governing the status of and relationships with independent
contractors and not those rules and laws governing employer-employee
relationships. Accordingly, the Agent has full control of his/her daily activities,
with the right to exercise independent judgment as to the time, place, and manner
of soliciting insurance, servicing policyholders, and otherwise carrying out the
provisions of this Agreement. The Agent may hire such staff as the Agent
deems appropriate for carrying out this Agreement, but the Agent remains
responsible for accomplishing the requirements of this Agreement regardless
whether performed by the Agent or staff of the Agent. Staff hired by the Agent
are not employees of the Companies and shall not be held out as employees or
agents of the Companies. The Agent shall be solely responsible for the selection,
hiring, compensation, management, control, activities, employment termination
and retirement of the Agent’s staff. The Agent shall be responsible for ensuring
that the Agent’s staff is properly licensed and authorized for the activities
undertaken on behalf of the Agent



                                       ***

D. Agent’s Responsibilities. The Agent agrees to comply with the Companies’
rules and regulations in online manuals pertaining to the policies and products and
procedures covered by this Agreement; provided, however, that such rules and
regulations shall not interfere with the Agent’s status as an independent
contractor. [Emphases added.]




                                        -3-
        Plaintiff does not dispute that he was an independent contractor; rather, plaintiff’s
position is that his independent contractor status is “irrelevant” to whether he may assert a cause
of action under the ELCRA. 1 The majority also concedes plaintiff’s independent contractor
status, noting that “[p]laintiff does not dispute that he was an independent contractor.” He
therefore was not an “employee” or an “applicant” for “employment” under the ELCRA.
MCL 37.2202(a), (b).

       Under Badiee, that should end the inquiry. We are bound by Badiee unless or until it has
been “reversed or modified by the Supreme Court, or by a special panel of the Court of
Appeals.” MCR 7.215(J)(1). Neither has occurred. Badiee therefore remains controlling. Id.

       The majority nonetheless effectively concludes that our Supreme Court in McClements v
Ford Motor Co, 473 Mich 373; 702 NW2d 166 (2005), implicitly (but silently) overruled
Badiee. I disagree. Not only did the Court in McClements not see fit even to mention Badiee
(much less overrule it), but in my judgment McClements simply does not speak to the issue
before us. Yet the majority acts to extend McClements to a context wholly distinct from
anything that I believe the Legislature or the McClements Court ever contemplated.

        McClements did not present a claim by an independent contractor. Rather, the plaintiff in
McClements was an employee of a third party with which the defendant (Ford) had contracted
for cafeteria services. McClements, 473 Mich at 379. Far from overruling Badiee, either
expressly or by implication, the Court in McClements merely noted that, in certain unusual
situations, a plaintiff may maintain an ELCRA action without establishing a direct employer-
employee relationship with the defendant, provided that the defendant (1) has the ability to
“affect or control a term, condition, or privilege of an individual’s employment,” and (2) actually
takes discriminatory action that adversely affects or controls an individual’s employment. Id. at
389-390.2




1
   Plaintiff does not contend that he should be deemed an “employee” of defendants under the
economic reality test or otherwise. See Ashker v Ford Motor Co, 245 Mich App 9; 627 NW2d 1
(2001); Wells v Firestone Tire & Rubber Co, 421 Mich 641, 646; 364 NW2d 670 (1984),
quoting Farrell v Dearborn Mfg Co, 416 Mich 267, 276; 330 NW2d 397 (1982). Consequently,
we need not address any such argument. While it is not important to my analysis, however, I
parenthetically note that the United States Court of Appeals for the Sixth Circuit recently noted
that it has “time and again declared insurance agents to have independent-contractor status,” and
it again rejected the claim of a class of insurance agents who claimed that the insurance company
defendants had “misclassified them as independent contractors, while treating them as
employees.” Jammal v American Family Ins Co, 914 F3d 449, 451, 460 (2019).
2
  The Court in McClements nonetheless held that the plaintiff had failed to raise a genuine issue
of material fact regarding whether the defendant had affected or controlled a term, condition, or
privilege of her employment, and that the defendant was therefore entitled to summary
disposition. McClements, 473 Mich at 390.


                                                -4-
       But in holding under the circumstances presented that there need not exist a direct
employment relationship between the plaintiff and the defendant, McClements did not legislate
away the statutory requirement that some employment relationship must be affected. Here, there
is none. As noted, plaintiff does not dispute his independent contractor status. Nor does he
allege (as was at issue in McClements) the existence of any employment relationship that
defendant’s conduct may have disrupted. Indeed, there was here no employment relationship
whatsoever, but only an uncontested independent contractor relationship. McClements therefore
does not apply in this setting. Badiee does, and it is controlling.

        I would affirm the trial court’s order granting summary disposition in favor of defendant
for the reasons articulated by the trial court, i.e., that plaintiff, as an independent contractor, may
not pursue a claim under the ELCRA.

       I therefore concur in the result reached by the majority.



                                                               /s/ Mark T. Boonstra




                                                 -5-
