Opinion
Case No. 4:02-CV-220
June 3, 2003
OPINION
Defendant Empire Fire and Marine Insurance Company ("Empire") has filed a Motion to Dismiss and a Motion for Sanctions. Both Motions have been fully briefed by the parties. Upon review of the briefing, the Court determines that the Motions may be readily decided without further argument or hearing.
BACKGROUND
Plaintiff Walter Swihart's Complaint was filed with this Court on December 17, 2002. The Complaint is stated in four counts. Counts One and Two allege claims against Plaintiffs former employer Pigeon River Materials, Inc. for violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12111 et seq., the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., and state statutes. Counts Three and Four allege claims against Defendant Empire Fire and Marine Insurance Company for violation of the ADA and for intentional interference with a business expectancy.
More particularly, Plaintiffs Complaint alleges that he suffered a retinal detachment of his right eye in October 1999 which eventually caused loss of sight in his right eye. (Complaint, at ¶ 12.) He then suffered a retinal detachment of his left eye in February 2000. ( Id. at ¶ 13.) His left eye was later repaired through surgery after which he tested 20/30 vision in his left eye, with some loss of peripheral vision. ( Id. at ¶ 16.) Effective April 2, 2002, Plaintiff received a medical waiver from the State of Michigan permitting him to return to his former occupation as a truck driver. Id. at ¶ 22.) Plaintiffs employer did not re-hire him, though, because its insurance company, Defendant Empire, refused to issue a policy to cover his commercial driving due to his partial loss of vision. ( Id. at 26.) Plaintiff alleges that the conduct of Defendant Empire is a violation of Title III of the ADA, 42 U.S.C. § 12181 et seq. ( Id. at ¶ 49.) Plaintiff further alleges that these acts constitute intentional interference with a business expectancy in violation of state law. ( Id. at ¶¶ 51-55.)
DISMISSAL STANDARDS
Dismissal is requested under Federal Rule of Civil Procedure 12(b)(6). Under Rule 12(b)(6), a court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Hishon v. King Spalding, 467 U.S. 69, 73 (1984). The allegations of the complaint must be construed in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The rules generally require only a "short and plain statement of the claim" and not detailed allegations. Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163, 168 (1993). Nevertheless, the complaint "must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988). The district court "need not accept as true legal conclusions or unwarranted factual inferences." Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987).
LEGAL ANALYSIS
a. ADA Claim
Defendant's argument for dismissal is premised on the Sixth Circuit Court of Appeals' en banc decision in Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006, 1014 (6th Cir. 1997). The Parker Court, by a 7-5 vote, interpreted Title III of the ADA as limited to denials of public accommodations in physical places and as not extending to the provision of insurance contracts. Id. at 1014. Defendant also contends that the activities involved in this suit are exempt from the ADA because of a safe harbor provision of the ADA, 42 U.S.C. § 12201, arguably exempting underwriting decisions. Defendant cites later cases of the Sixth Circuit following Parker, including Lenox v. Healthwise of Kentucky, Ltd., 149 F.3d 453, 456 (1998) and Kolling v. Blue Cross Blue Shield of Michigan, 318 F.3d 715, 716 (6th Cir. 2003).
Plaintiff, in response, concedes that Parker is a binding precedent of this Circuit, but urges that the Court adopt a different rule here given the intervening decision of the United States Supreme Court in PGA Tour, Inc. v. Martin, 532 U.S. 661, 667 (2001), which interpreted Title III of the ADA as subject to the right of a qualified but disabled golfer to use a golf cart to compete in a professional tour event. Plaintiff also urges this result based on authorities cited by the dissenting judges in Parker, including decisions of other circuit courts of appeal.
While this Court, like the dissent in Parker, wishes it were otherwise, it is still bound by the Parker decision, which decision has been followed by the Sixth Circuit in insurance cases as late as the Kolling decision in 2003. In other words, the Sixth Circuit itself has not found the Martin case as a sufficient legal reason for departing from the Parker precedent in insurance cases. Indeed, this is none too surprising since Martin expressly involved the access of a disabled person to a physical place and did not concern underwriting decisions affecting disabled persons. Accordingly, summary judgment will be granted in favor of Defendant Empire Fire and Marine Insurance Company as to Count Three.
b. Intentional Interference with a Contractual or Business Relationship
Under Michigan law, a plaintiff who alleges tortious interference with a contract or business relationship must show, among other things, that the defendant performed an "illegal, unethical, or fraudulent" act. American Council of Certified Podiatric Physicians Surgeons v. American Bd. of Podiatric Surgery, Inc., 323 F.3d 366, 374 (6th Cir. 2003); Trepel v. Pontiac Osteopathic Hosp., 354 N.W.3d 341, 346 (1984).
In the instant case, as admitted in Plaintiff's Brief in Opposition, the sole basis for claiming that the acts of Defendant Empire were illegal, unethical or fraudulent is because of a supposed violation of the ADA. Therefore, having determined that there is no basis for a finding of an illegal act under the ADA, Defendant is also entitled to summary judgment on the tortious interference claim alleged in Count Four. See also Michigan Podiatric Medical Assoc. v. Nat'l Foot Care Program, Inc., 438 N.W.2d 349, 354 (1989).
Of course, as noted by Defendant, insurance companies are in the business of assessing risk to make profits on insurance policies. State law allows them to consider any number of circumstances reasonably affecting the risks insured (with certain exceptions such as age, gender, race, marital status, and national origin). See Mich. Comp. Laws § 500.2027. Disability may be considered in assessing risk provided that it is reasonably related to the risk assumed. Id.
c. Motion for Sanctions
Defendant has moved for sanctions under Rule 11. While the Court has concurred with Defendant's arguments as to dismissal, sanctions are not appropriate. Rule 11(b)(2) permits a party to urge claims based on a "non-frivolous argument for the extension, modification, or reversal of existing law. . . ." In the Court's judgment, Plaintiff has done exactly that. Plaintiffs position is non-frivolous especially considering the diversity of opinions on insurance coverage issues amongst the federal circuits and lower courts. It is also non-frivolous from the perspectives that Parker did not concern the underwriting of this particular kind (commercial trucking policies), that the State of Michigan has otherwise authorized Plaintiff to drive, and that the rule in Parker unfortunately creates the possibility that insurance company underwriting will become a proxy for employers to discriminate against workers who could not otherwise be discriminated against under Title I of the ADA. As such, sanctions are clearly unwarranted.
CONCLUSION
For the reasons, stated an Order and Partial Judgment shall enter granting summary judgment in favor of Defendant Empire, but denying Defendant Empire's Motion for Sanctions.