Buffa v. General Motors Corporation

• Decision Date: 20 May 1955
• Docket Number: No. 13624.,13624.
• Citation: 131 F. Supp. 478
• Parties: Nick BUFFA, Plaintiff, v. GENERAL MOTORS CORPORATION, a Delaware corporation, Defendant, and J. A. Utley Company, a corporation, Third-Party Defendant.
• Court: U.S. District Court — Western District of Michigan

131 F. Supp. 478

Nick BUFFA, Plaintiff, v. GENERAL MOTORS CORPORATION, a Delaware corporation, Defendant, and J. A. Utley Company, a corporation, Third-Party Defendant.

No. 13624.

United States District Court E. D. Michigan, S. D.

May 20, 1955.

Leitson & Dean, Flint, Mich., for plaintiff.

Ward, Plunkett & Cooney, Detroit, Mich., for defendant.

Lacey, Jones & Doelle, Detroit, Mich., for third-party defendant.

FREEMAN, District Judge.

General Motors Corporation and J. A. Utley Company entered into a contract whereby the latter agreed to furnish labor and materials for the construction of a certain building on the premises of the Buick Motor Division of General Motors. Plaintiff, while employed by Utley as a cement finisher, was allegedly injured while working on the Buick premises. The complaint alleges that an employee of defendant General Motors, while driving an industrial truck commonly known as a "mule" negligently struck another truck which in turn struck a wheelbarrow, thereby causing the wheelbarrow to fall on and injure plaintiff.

Shortly after the filing of the complaint, General Motors added J. A. Utley Company, plaintiff's employer, as third-party defendant by ex parte proceedings, stating as a ground therefor that Utley, by virtue of its contract with General Motors, agreed to indemnify and hold harmless the latter by assuming all risks of damage or injury to property or persons used or employed on or in connection with the work which Utley was to perform. Utley has moved to dismiss the third-party complaint on the ground that it fails to state a claim upon which relief can be granted. Utley's contention that plaintiff has made an election by accepting workmen's compensation has been abandoned in the light of Section 17.189, Mich.Stat.Ann. as amended Comp. Laws Supp.1952, § 413.15, and the decision in Rookledge v. Garwood, 340 Mich. 444, 65 N.W.2d 785, holding the amendment retroactive.

The grounds now urged in support of the motion are that, (1) inasmuch as the injuries complained of resulted solely from the negligence of General Motors, the latter may not recover over against Utley, and (2) that the contract between General Motors and Utley is not sufficiently broad in scope so as to be construed as indemnifying General Motors against liability for their own negligence. In support of its position Utley has cited cases for the proposition that the law will not enforce contribution or indemnity between actual joint tort-feasors, and also for the proposition that where one not guilty of active negligence and not a joint tort-feasor is held liable he may have indemnity from the person guilty of active negligence. Village of Portland v. Citizens' Telephone Co., 206 Mich. 632, 173 N.W. 382; Anderson v. Grant, 114 Mich. 161, 72 N.W. 144; City of Detroit v. Grant, 135 Mich. 626, 98 N.W. 405; Grant v. Maslen, 151 Mich. 466, 115 N.W. 472, 16 L.R.A.,N.S., 910; Glappa v. Detroit, etc., R. Co., 179 Mich. 76, 146 N.W. 134; Detroit G. H. & M. R. Co. v. Boomer, 194 Mich. 52, 160 N.W. 542; Township of Hart v. Noret, 191 Mich. 427, 158 N.W. 17, L.R.A.1916F, 83; Indemnity Insurance Company of North America v. Otis Elevator Company, 315 Mich. 393, 24 N.W.2d 104, 171 A.L.R. 266.

The court has carefully considered these decisions, but finds them inapplicable to the case at bar. None of them involved the construction of an indemnity agreement such as is present here. The Village of Portland case merely holds that indemnity will not be enforced as between joint tort-feasors. The dictum in the case does not take into account the existence of an indemnity agreement. The Grant cases are not in point, for there the negligent party was the defendant contractor who was being sued, whereas here General Motors claims indemnity because of possible liability resulting from its own negligence. In fact, City of Detroit v. Grant, supra, seemingly supports General Motors' position since the city recovered under an indemnity agreement from one not guilty of so-called active negligence. In the Boomer case, Boomer simply agreed to keep the railroad track free from obstruction and the case merely held that indemnity would not lie as between joint tort-feasors. Likewise, the Otis case did not involve a contract of indemnity which purported to shift liability from the hotel to Otis, regardless of the hotel's negligence, as is claimed to be the situation here.

That parties may lawfully contract to indemnify and save harmless others from the latter's own acts of negligence seems well settled as being not against public policy. J. V. McNicholas Transfer Co. v. Pennsylvania R. Co., 6 Cir., 154 F.2d 265; Rice v. Pennsylvania R. Co., 2 Cir., 202 F.2d 861; Aluminum Co. of America v. Hully, 8 Cir., 200 F.2d 257, 261; Govero v. Standard Oil Co., 8 Cir., 192 F.2d 962; Buckeye Cotton Oil Co. v. Louisville & N. R. Co., 6 Cir., 24 F.2d 347; Smoke v. Turner Const. Co., D.C., 54 F.Supp. 369; Russell, for Use of Continental Casualty Co. v. Shell Oil Co., 339 Ill.App. 168, 89 N.E.2d 415; 42 C.J.S., Indemnity, § 12.

Since the indemnity contract is valid and since the third-party complaint alleges in substance that by reason of such contract the third-party defendant Utley has agreed to assume all responsibility for injuries to persons employed on or in connection with the work which was the subject of the contract, the third-party complaint sufficiently states a claim against Utley upon which relief can be granted. In this regard, it is appropriate to cite Chicago & N. W. Ry. Co. v. Chicago Packaged Fuel Co., 7 Cir., 183 F.2d 630, 631, wherein the district court dismissed an action brought under an indemnity agreement on the ground that the complaint did not state a claim upon which relief could be granted. The lower court construed the agreement as not covering the indemnitee's own negligence. In reversing, the Court of Appeals stated:

"Thus, on a motion to dismiss a complaint for failure to state a cause of action, the court adopted the most unfavorable construction possible of the contract on which the complaint was based, * * *. We think such construction was not warranted for purposes of disposing of the motion to dismiss. * * *

"We are not convinced that the settlement of the claim under the circumstances briefly stated in the complaint was such an admission of negligence as to conclusively establish that plaintiff's negligence alone caused the injury. Nor are we convinced that that fact issue is wholly determinative of the issues presented by the complaint. We think a serious question of law was presented as to the scope of the indemnity agreement — certainly `enough to withstand a mere formal motion, directed only to the face of the complaint.' * * * Defendant contended, and the District Court apparently adopted its theory, that the parties intended to limit its liability to injuries caused by defects and hazards inherent in the hopper itself. We think this is by no means the only construction that can be given the language of the parties." Emphasis supplied.

The court, however, does not wish to rest its decision alone on this somewhat technical ground. Rule 12(b), Federal Rules of Civil Procedure, 28 U.S. C.A., permits the court to treat a motion to dismiss for failure to state a claim upon which relief can be granted as one for summary judgment under Rule 56 where matters outside the pleadings are not excluded by the court. Considering the motion thusly, it appears that there is no issue of fact present, for it is not disputed that plaintiff was employed by Utley on the Buick premises. Therefore, the legal question presented is whether the contract between the parties can be construed as indemnifying General Motors against liability for their own negligence under the undisputed facts of this case. The pertinent provisions of the contract are:

"Article XII

"The Contractor shall be responsible for his work and every part thereof, and for all materials, tools, appliances, and property of every description used in connection therewith. He shall specifically and distinctly assume and does so assume all risks of damage or injury to property or persons used or employed on or in connection with the work, and of all damage or injury to any persons or property wherever located, resulting from any action or operation under the contract or in connection with the work, and undertakes and promises to protect and defend the Owner against all claims on account of any such damage or injury.

"Article XIII

"1. The Contractor shall secure and protect the Owner from any liability or damage whatsoever, for injury (including death) to any person or property.

"2. The Contractor and all subcontractors shall, during the continuance of the work under the contract, including extra work in connection therewith:

"(a) Maintain Workmen's Compensation and Employers' Liability Insurance in amounts sufficient to protect themselves from any liability or damage for injury (including death) to any of their employees, including any liability or damage which may arise by virtue of any statute or law in force or which may hereafter be enacted.

"(b) Maintain Public Liability Insurance in amounts sufficient to protect themselves against all risks of damage or injury (including death) to property or persons wherever located, resulting from any action or operation under the contract or in connection with the work.

"(c) Maintain Automobile Liability Insurance, including Property Damage, covering all owned or rented equipment used in connection with the work.

"3. All insurance policies shall be issued by companies authorized to do business under the laws of the State in which the work will be done. Such policies shall contain appropriate endorsement to save and hold harmless the Owner from any liability or damage whatsoever. Certificates of insurance evidencing such insurance and endorsement shall be filed, before work is started, with the Architect-Engineer.

"4. No change

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