Dobronski v. Transamerica Life Ins. Co.

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MARK W DOBRONSKI, Plaintiff-Appellant, v. TRANSAMERICA LIFE INSURANCE COMPANY, ANDLEEB SUBHANI, and WILLIAM JAMES VIDA Defendants-Appellees.

No. 360506

Court of Appeals of Michigan

May 25, 2023

Washtenaw Circuit Court LC No. 21-001062-NZ

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

SWARTZLE, J.

Plaintiff sued defendants on claims of unlawful robocalls and violations of the national do-not-call registry. A key aspect of plaintiff's case turns on the rather banal observation that, in today's society, a mobile phone can be (and often is) used for residential purposes. Neither federal nor state law compels a contrary conclusion, notwithstanding defendants' arguments. With respect to another key matter, whether a person has consented to receive certain marketing calls or has a preexisting business relationship permitting such calls will often be a fact-intensive inquiry. The trial court granted summary disposition to defendants at a very early stage of the litigation, and this was error. Accordingly, we vacate the trial court's grant of summary disposition in all respects except on one count for which there is no private right of action.

I. BACKGROUND

Beginning in the 1970s and extending into the 1990s and beyond, Michigan and our federal government have enacted laws aimed at "abuses of telephone technology-for example, computerized calls dispatched to private homes." Sandusky Wellness Ctr, LLC v Medco Health Solutions, Inc, 788 F.3d 218, 221 (CA 6, 2015) (cleaned up). In 1991, "respond[ing] to a torrent of vociferous consumer complaints about intrusive robocalls," calls described by one senator "as the scourge of modern civilization," our federal government enacted the Telephone Consumer Protection Act (TCPA), 47 USC 227, et seq. Barr v American Ass'n of Political Consultants, Inc, 591 U.S. ___, ___; 140 S.Ct. 2335, 2344; 207 L.Ed.2d 784 (2020) (cleaned up). Our own Legislature had acted prior to Congress with the Michigan Home Solicitation Sales Act (MHSSA), MCL 445.111, et seq. Over the subsequent years and decades, legislative bodies and regulatory agencies have since amended, clarified, and added to these protections.

This lawsuit alleges violations of these federal and state protections against abusive telemarketing practices. In his complaint, plaintiff Mark Dobronski alleges that defendants, Transamerica, a life insurance company; William James Vida, an employee of Transamerica; and Andleeb Subhani, an independent contractor for Transamerica, violated federal and state law by initiating 19 telemarketing communications to plaintiff's mobile phone in 2021 without his consent. Plaintiff, proceeding in propria persona, raises six counts under the TCPA, the MHSSA, and the Michigan Telephone Companies as Common Carriers Act (MTCCCA), MCL 484.125. Specifically, plaintiff alleges that defendants: Count I, made unlawful robocalls to his mobile phone in violation of 47 USC 227(b) and 47 CFR 64.1200(a); Count II, made unlawful calls to his mobile phone even though his number was listed on the national do-not-call registry in violation of 47 USC 227(c)(5) and 47 CFR 1200(c)(2); Count III, failed to identify themselves in violation of 47 CFR 64.1200(d)(4); Count IV, failed to transmit caller-ID and contact information for the national do-not-call registry in violation of 47 CFR 64.1601(e); Count V, violated the MHSSA, MCL 445.111a and 445.111b, in ways similar to those in Counts I-III; and Count VI, blocked caller-identification information in violation of the MTCCCA, MCL 484.125. Plaintiff asks for damages of $48,000 as well as injunctive relief.

In lieu of answering, defendants moved for summary disposition under MCR 2.116(C)(8) and (C)(10). In their brief in support, defendants make several arguments, some of which overlap with respect to the various counts. On Counts I, II, and V, defendants argue that plaintiff provided sufficient consent to receive the calls. With respect to Counts II, III, V, and VI, defendants argue that plaintiff's mobile phone does not qualify as a residential phone and therefore the marketing restrictions do not apply to those calls. As to Counts II and V, defendants allege that they had a preexisting business relationship with plaintiff that authorized the calls. Finally, defendants argue that plaintiff failed to state a claim on Count III and that there is no private right of action on Count IV.

In support of their motion, defendants attached two evidentiary exhibits: (1) a "customer service" information sheet; and (2) a privacy notice from 2017. The customer sheet indicates that plaintiff has had a life insurance policy with Transamerica since 1993. The sheet lists a P.O. box address for plaintiff, but no phone number. The privacy notice states that Transamerica collects information about its customers, including name, email, and physical address, but omits any express mention of collecting customers' phone numbers. The privacy notice further states that Transamerica can use customer information to "market products and services." The notice informs customers that they can "opt out" of certain marketing efforts by Transamerica's affiliates.

Plaintiff opposed the motion. In his brief, plaintiff states that he obtained the life-insurance policy through a predecessor company, Commonwealth Life Insurance Company, and not Transamerica. Plaintiff also attached a sworn affidavit to his brief. In that affidavit, he avers that he acquired his current mobile phone number in 2004. He claims that he uses his mobile phone "primarily for personal communications with my family and friends." He continues,

9. At no time have I provided consent, prior express consent, or prior express written consent for Transamerica Life Insurance Company ("TLIC") or anyone acting for and on behalf of TLIC to initiate any telephone call using an automatic telephone dialing system or artificial or pre-recorded voice to my cellular telephone number.

10. My cellular telephone number [XXX-XXX-XXXX] has been listed on the National Do-Not-Call Registry continuously since at least December 9, 2004.

Apart from these exhibits to briefs, no discovery had taken place by the time the trial court held a hearing on defendants' motion.

During the hearing, plaintiff conceded that he had filed approximately 36 prior lawsuits alleging similar violations of federal and state law. The defendants in most of those cases had removed the cases to federal court, and with respect to two of his cases that remained in state court, panels of this Court have subsequently adjudicated two of them. See Dobronski v NPS, Inc, unpublished per curiam opinion of the Court of Appeals, issued April 21, 2022 (Docket No. 356617); Dobronski v United Final Expense Serv, Inc, unpublished per curiam opinion of the Court of Appeals, issued April 21, 2022 (Docket No. 357057). The trial court observed, however, that there was a dearth of binding precedent on several of the arguments raised by the parties. After hearing the parties' arguments, the trial court ruled in favor of defendants, explaining:

I'm going to discuss this with-I want to see how many other members of the bench have had this. It sounds like this is an issue that keeps coming up. It seems to me we ought to have one judge assigned to it rather than multiple decisions. I'm saddened that we don't have a decision from the Court of Appeals to give us some guidance, and apparently the federal-you know what? Why don't we just-you know what, sir?

Actually, Counsel, I'm going to adopt your argument in its entirety and grant your motion. I'd like the Court of Appeals to weigh in on this.

And if they agree with you, [plaintiff], I am happy to give you a trial.

So your motion is granted in its entirety. Let's have the Court of Appeals weigh in on these lawsuits, and if you will just state it's granted for that reason, I think in the interest of judicial economy, it would be helpful for the Court of Appeals to tell us the course of action we should be taking as trial judges in these cases. Thank you very much.

The trial court subsequently issued a written order to this effect, stating that defendants' motion for summary disposition was granted "for the reasons stated on the record."

This appeal followed.

II. ANALYSIS

A. STANDARD OF REVIEW

Although defendants moved for summary disposition under both MCR 2.116(C)(8) and (C)(10), the trial court did not indicate under which subrule it granted the motion. Given this, we will review the matter under MCR 2.116(C)(10). Cuddington v United Health Servs, Inc, 298 Mich.App. 264, 270; 826 N.W.2d 519 (2012).

"We review de novo a trial court's decision to grant or deny a motion for summary disposition." Sherman v City of St Joseph, 332 Mich.App. 626, 632; 957 N.W.2d 838 (2020) (citations omitted). "Summary disposition [under MCR 2.116(C)(10)] is appropriate if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law." Id. (quotation marks and citation omitted). We consider the evidence in a light most favorable to the nonmoving party. Payne v Payne, 338 Mich.App. 265, 274; 979 N.W.2d 706 (2021).

Plaintiff has raised both federal and state claims. Federal and state courts have concurrent jurisdiction over federal-law claims, unless federal law provides for exclusive jurisdiction in federal courts. Office Planning Group, Inc v Baraga-Houghton-Keweenaw Child Dev Bd, 472 Mich. 479, 493; 697 N.W.2d 871 (2005). The TCPA explicitly permits state court actions, 47 USC 227(b)(3); 47 USC 227(c)(5), and therefore, state courts have jurisdiction over such claims.

During the hearing on defendants' motion, the trial court lamented the lack of case law interpreting and applying these federal and state laws....