Brown v. Unit Products Corp.

• Citation: 105 Mich.App. 141,306 N.W.2d 425
• Decision Date: 08 April 1981
• Docket Number: Docket Nos. 48320 and 51000
• Parties: Carl L. BROWN, Plaintiff, v. UNIT PRODUCTS CORPORATION, a Michigan Corporation, and H. F. Campbell Company, a Michigan Corporation, Defendants, and UNIT PRODUCTS CORPORATION, a Michigan Corporation, Defendant-Third-Party Plaintiff-Appellant, v. BROAD CRANE AND ENGINEERING SERVICE COMPANY, Third-Party Defendant-Appellee. Carl L. BROWN, Plaintiff-Appellee, v. UNIT PRODUCTS CORPORATION, a Michigan Corporation, and H. F. Campbell Company, a Michigan Corporation, Defendants-Appellants.
• Court: Court of Appeal of Michigan (US)

Page 425

306 N.W.2d 425

105 Mich.App. 141

Carl L. BROWN, Plaintiff, v. UNIT PRODUCTS CORPORATION, a Michigan Corporation, and H. F.

Campbell Company, a Michigan Corporation, Defendants, and UNIT PRODUCTS CORPORATION, a Michigan Corporation, Defendant-Third-Party Plaintiff-Appellant, v. BROAD CRANE AND ENGINEERING SERVICE COMPANY, Third-Party

Defendant-Appellee.

Carl L. BROWN, Plaintiff-Appellee, v. UNIT PRODUCTS CORPORATION, a Michigan Corporation, and H. F.

Campbell Company, a Michigan Corporation,

Defendants-Appellants.

Docket Nos. 48320 and 51000.

Court of Appeals of Michigan.

April 8, 1981.

Released for Publication June 16, 1981.

Terry S. Welch, Mount Clemens, for Unit Products Corp.

James M. Prahler, Birmingham, for plaintiff in 48320.

James A. Callahan, Detroit, for plaintiff-appellee in 51000.

Before BRONSON, P. J., and CAVANAGH and KAUFMAN, JJ.

CAVANAGH, Judge.

Plaintiff in the underlying action was injured when a steel joist fell on him while he was employed as a steel worker by third-party defendant, subcontractor Broad Crane and Engineering Service. Plaintiff filed a complaint against defendant-third-party-plaintiff, Unit Products Corporation, and alleged:

"7. The Defendant, as general contractor, had a duty to use reasonable care, and/or great care to see that Plaintiff was not injured while performing dangerous and unusually perilous work, and inherently dangerous work, which subjected the Plaintiff to great danger and danger out of the ordinary, and further Defendant had a duty to implement reasonable safety precautions and guard against dangers which created risk of injury to workmen, but Defendant breached its duty as follows:

"(a) Failed to see that wallplates were in place before the building of the roof structure was commenced;

"(b) Failed to see that work was done in a safe manner so as to prevent injury to workmen;

"(c) Failed to see that OSHA rules and regulations were complied with;

"(d) Failed to see that State Safety Regulations and Rules were complied with."

Defendant Unit Products, a wholly-owned, independently-operated subsidiary of H. F. Campbell, filed a third-party complaint against third-party-defendant, Broad Crane, seeking contractual and common-law indemnification.

When it was discovered that the general contractor was actually H. F. Campbell Company and that Campbell's wholly-owned subsidiary, Unit Products, was actually a subcontractor, the trial court entered an order adding Campbell as a codefendant. Plaintiff filed an amended complaint alleging the same acts of negligence against codefendants Unit Products and Campbell as he had alleged against defendant Unit Products in his initial complaint. Defendant Campbell filed a cross-claim against defendant Unit Products for indemnification. Third-party-defendant, Broad Crane, filed a motion for summary judgment against defendant-third-party-plaintiff, Unit Products. After hearings, Broad Crane's motion was granted. Unit Products appeals as of right from that order. Unit Products raises several issues on appeal. We will address each of these issues.

Unit Products maintains that the gist of the principal plaintiff's allegation that he was injured while engaging in an inherently-dangerous activity constitutes an allegation of passive negligence or vicarious liability on the part of Unit Products. Therefore, Unit Products argues, common-law indemnification would be available to Unit Products.

The general principles of common law indemnity were set forth in Peeples v. Detroit, 99 Mich.App. 285, 292-293, 297 N.W.2d 839 (1980):

"Common-law indemnity is intended only to make whole again a party held vicariously liable to another through no fault of his own. This has been referred to as 'passive' rather than 'causal' or 'active' negligence. Dale v. Whiteman, 388 Mich. 698, 705, 202 N.W.2d 797 (1972). Thus, one seeking indemnification at common law is required to plead and prove freedom from personal fault. McLouth Steel Corp. v. A. E. Anderson Construction Corp., 48 Mich.App. 424, 430, 210 N.W.2d 448 (1973), Husted v. Consumers Power Co., 376 Mich. 41, 51, 135 N.W.2d 370 (1965). If the indemnitee's own negligence played a role in the injury, he may not recover. Wilhelm v. Detroit Edison Co., 56 Mich.App. 116, 157, 224 N.W.2d 289 (1974). The rationale for this requirement is that liability should fall on the party best situated to adopt preventive measures. Dale v. Whiteman, supra.

"In order to determine whether the indemnitee was 'actively' or 'passively' negligent, the Court looks to the primary plaintiff's complaint. If that complaint alleges 'active' negligence, as opposed to derivative liability, the defendant is not entitled to common-law indemnity. Hill v. Sullivan Equipment Co., 86 Mich.App. 693, 696-697, 273 N.W.2d 527 (1978), Minster Machine Co. v. Diamond Stamping Co., 72 Mich.App. 58, 63-64, 248 N.W.2d 676 (1976), Diekevers v. SCM Corp., 73 Mich.App. 78, 250 N.W.2d 548 (1976)."

Those principles were reiterated as follows in Duhame v. Kaiser Engineering of Michigan, Inc., 102 Mich.App. 68, 71-72, 300 N.W.2d 737 (1980):

"The law in Michigan as to common-law indemnity has been succinctly summarized by this Court in Hill v. Sullivan Equipment Co., 86 Mich.App. 693, 696-697, 273 N.W.2d 527 (1978):

" 'Common law indemnity is based on the equitable principle that where the wrongful act of one results in another being held liable, the latter party is entitled to restitution from the wrongdoer. See, e. g., Provencal v. Parker, 66 Mich.App. 431, 239 N.W.2d 623 (1976). See generally Prosser, Torts (4th ed.), § 51. In the typical case, indemnity is available only if the party seeking it is not "actively" negligent. Husted v. Consumers Power Co., 376 Mich. 41, 135 N.W.2d 370 (1965), Nanasi v. General Motors Corp., 56 Mich.App. 652, 224 N.W.2d 914 (1974), McLouth Steel Corp. v. A. E. Anderson Construction Corp., 48 Mich.App. 424, 210 N.W.2d 448 (1973). In determining this, the court looks to the primary plaintiff's complaint. If that complaint alleges only "active" negligence, as opposed to derivative liability, the defendant is not entitled to common law indemnity. Prosky v. National Acme Co., 404 F.Supp. 852 (E.D.Mich.1974) (decided under Michigan law), Minster Machine Co. v. Diamond Stamping Co., 72 Mich.App. 58, 248 N.W.2d 676 (1976). Accord, Jordan v. Solventol Chemical Products, Inc., 74 Mich.App. 113, 253 N.W.2d 676 (1977).'

"See also, Darin & Armstrong, Inc. v. Ben Agree Co., 88 Mich.App. 128, 276 N.W.2d 869 (1979), (lv. den. 406 Mich. 1007 (1979)), 41 Am.Jur.2d, Indemnity, § 20, pp. 706-710."

In addressing the question of whether an allegation of an inherently-dangerous work place constituted an allegation of passive negligence or vicarious liability, the Court stated:

"There is a split of authority in this Court on the issue of whether invocation of the 'inherently dangerous activity doctrine' can be construed as constituting a vicarious liability claim. Mulcahy v. Argo Steel Construction Co., 4 Mich.App. 116, 127, 144 N.W.2d 614 (1966), and Nanasi v. General Motors Corp., 56 Mich.App. 652, 224 N.W.2d 914 (1974), support defendants' position. However, we believe that the better view is found in Witucke v. Presque Isle Bank, 68 Mich.App. 599, 610, 243 N.W.2d 907 (1976), where this Court held that the inherently dangerous activity doctrine presents a claim of active rather than passive negligence.

"See also, Tiffany v. The Christman Co., 93 Mich.App. 267, 285-286, 287 N.W.2d 199 (1979) * * *.

"We believe that Witucke and Tiffany more closely follow precedent set by the Michigan Supreme Court concerning the inherently dangerous activity doctrine. See Funk v. General Motors Corp., 392 Mich. 91, 108-109, 220 N.W.2d 641 (1974), and McDonough v. General Motors Corp., 388 Mich. 430, 201 N.W.2d 609 (1972)." Id., 72-74, 300 N.W.2d 737. We find that the allegation that defendant Unit Products engaged in an inherently-dangerous activity is not an allegation of passive negligence or vicarious liability and so defendant Unit Products is precluded from receiving common-law indemnification. The trial court did not err in granting summary judgment in favor of Broad Crane on this issue.

Unit Products next contends that the trial court committed error in denying its claim for contractual indemnification.

A contract of indemnity will not be construed to indemnify the indemnitee against losses resulting to him through his own negligent acts, where such intention is not expressed in unequivocal terms. Fireman's Fund American Ins. Cos. v. General Electric Co., 74 Mich.App. 318, 323-324, 253 N.W.2d 748 (1977).

"Indemnity contracts, like other contracts, are to be enforced so as to effectuate the intentions of the parties. Gartside v. Young Men's Christian Ass'n, 87 Mich.App. 335, 339, 274 N.W.2d 58 (1978). In ascertaining the intentions of the parties, one must consider not only the language used in the contract but also the situation of the parties and the circumstances surrounding the contract. Gartside, supra. Indemnity contracts are construed most strictly against the party who drafts them, and against the party who is the indemnitee. Gartside, supra, Fireman's Fund American Ins. Cos. v. General Electric Co., 74 Mich.App. 318, 253 N.W.2d 748 (1977)." Robinson v. A. Z. Shmina & Sons Co., 96 Mich.App. 644, 649, 293 N.W.2d 661 (1980).

The indemnity provision relied upon by Unit Products states in part:

"You further agree to fully and unconditionally protect Unit Products Corporation and the purchaser of the improvements against any and all claims for damage to property or person or persons by virtue of your work."

We find that this indemnification provision cannot be construed to indemnify Unit Products for its own negligent acts, and Unit Products has not set forth any circumstances which would support such a construction, Darin & Armstrong, supra, 136. Therefore, the trial court committed no error in...