Beaudin v. Michigan Bell Telephone Co.

• Decision Date: 16 April 1987
• Docket Number: Docket No. 85443
• Citation: 403 N.W.2d 76,157 Mich.App. 185
• Parties: Joyce BEAUDIN, Plaintiff-Appellee, v. MICHIGAN BELL TELEPHONE COMPANY, a Michigan corporation, Defendant and Third-Party Plaintiff-Appellant, v. KELLY SERVICES, INC., Third-Party-Defendant-Appellee. 157 Mich.App. 185, 403 N.W.2d 76
• Court: Court of Appeal of Michigan — District of US

Page 76

403 N.W.2d 76

Joyce BEAUDIN, Plaintiff-Appellee, v.MICHIGAN BELL TELEPHONE COMPANY, a Michigan corporation, Defendant and Third-Party Plaintiff-Appellant, v.KELLY SERVICES, INC., Third-Party-Defendant-Appellee.

Docket No. 85443.

157 Mich.App. 185, 403 N.W.2d 76

Court of Appeals of Michigan.

Submitted June 10, 1986.

Decided Oct. 21, 1986.

Released for Publication April 16, 1987.

[157 MICHAPP 186]Frederick L. Wyckott, Detroit, for Michigan Bell Telephone Co.

Vandeveer, Garzia, Tonkin, Kerr, Heaphy, Moore, Sills & Poling, P.C. by Keith J Lerminiaux and Robert D. Brignall, Detroit, for Kelly Services, Inc.

Before DANHOF, C.J., and CYNAR and BATZER, ^* JJ.

PER CURIAM.

Michigan Bell Telephone Company, defendant and third-partyplaintiff, appeals as of right from the May 17, 1985, order of the Wayne Circuit Court granting a motion for summary disposition, MCR 2.116(C)(8), in favor of Kelly Services, Inc.third-party defendant.We affirm.

Plaintiff filed this action after she tripped over a telephone cord in the course of her employment at the Kelly Services office.Plaintiff alleged that Michigan Bell negligently installed the telephone equipment on the premises of Kelly Services.

Michigan Bell then filed a third-party complaint against Kelly Services seeking indemnification.The theory of indemnity was based upon a tariff promulgated by Michigan Bell and approved by the Michigan Public Service Commission.The tariff provides:

"The customer indemnifies and saves the Company[157 MICHAPP 187] harmless against claims for libel, slander, or infringement of copyright from the material transmitted over its facility; against claims for infringement of patents arising from combining with, or using in connection with, facilities of the Company, apparatus and systems of the customer; and against all other claims arising out of any act or omission of the customer in connection with facilities provided by the Company."

The motion for summary disposition filed by Kelly Services sought dismissal of the third-party complaint.The circuit court granted the motion, reasoning that the language of the tariff did not apply to the circumstances presented by the complaint.

A motion brought under MCR 2.116(C)(8), for failure to state a claim upon which relief may be granted, is to be decided on the pleadings alone.Wright v. Wright, 134 Mich.App. 800, 805, 351 N.W.2d 868(1984).The motion tests the legal basis of the complaint, not whether it can be factually supported.Unless the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery, the motion should be denied.Haddrill v. Damon, 149 Mich.App. 702, 704-705, 386 N.W.2d 643(1986).

On appeal Michigan Bell argues that the circuit court erred because Michigan Bell is entitled to indemnity under the plain meaning of the indemnity provision contained in the tariff.It further contends that the indemnity language entitles it to costs and attorney fees.In any event, Michigan Bell contends that it is entitled to indemnity for the concurrent negligence of Michigan Bell and Kelly Services if not for the sole negligence of Michigan Bell.

At the outset we note that the parties have assumed for purposes of argument that the tariff is [157 MICHAPP 188] the equivalent of a valid contractual agreement between the parties.Black's Law Dictionary (5th ed.), p. 1306, defines the term "tariff" this way:

"A public document setting forth services of common carrier being offered, rates and charges with respect to services and governing rules, regulations and practices relating to those services.International Tel. & Tel. Corp. v. United Tel. Co. of Florida, D.C.Fla.[1975], 433 F.Supp. 352, 357."

Without deciding that they are equivalent, we will treat the tariff as a valid contractual agreement for the purpose of deciding this appeal.

In its third-party complaint, Michigan Bell denied that it was negligent, but alleged that "if both Michigan Bell and Kelly Services, Inc., were negligent, or if plaintiff and Michigan Bell were negligent...