Department of Social Services v. Aetna Cas. & Sur. Co.

• Decision Date: 27 July 1989
• Docket Number: Docket No. 106677
• Citation: 443 N.W.2d 420,177 Mich.App. 440
• Parties: DEPARTMENT OF SOCIAL SERVICES, Plaintiff-Appellee, v. AETNA CASUALTY & SURETY COMPANY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 420

443 N.W.2d 420

177 Mich.App. 440

DEPARTMENT OF SOCIAL SERVICES, Plaintiff-Appellee, v. AETNA CASUALTY & SURETY COMPANY, Defendant-Appellant.

Docket No. 106677.

Court of Appeals of Michigan.

Submitted Dec. 21, 1988.

Decided June 6, 1989.

Released for Publication July 27, 1989.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Stephen H. Garrard, Asst. Atty. Gen., for plaintiff-appellee.

Collins, Einhorn & Farrell, P.C. by Brian Einhorn and Noreen L. Slank, Southfield, for defendant-appellant.

Before KELLY, P.J., and GRIBBS and WASHINGTON, ^* JJ.

WASHINGTON, Judge.

Defendant appeals as of right from a January 29, 1988, order of the Ingham Circuit Court, sitting as the Court of Claims, which granted plaintiff's motion for summary disposition entitling plaintiff to indemnity for a judgment in the amount of $73,459.38 entered against it in an underlying negligence action. We affirm.

The Michigan Department of Social Services leased office space from Oakman Grand Associates in Detroit, Michigan. As part of the lease agreement, Oakman agreed to purchase liability insurance naming DSS as an additional insured party. This liability insurance was subsequently purchased from Aetna Casualty & Surety Company and provided that Aetna would defend and indemnify DSS for bodily injury and property damage claims against DSS, subject to the following exclusion:

This insurance does not apply or shall not be construed as being applicable to liability for damages arising out of bodily injury to any person or damage to property of others resulting from the sole negligence of the state, its officers, employees or agents.

On August 23, 1979, Anita Ray was injured when she slipped and fell at the DSS office. She sued the DSS and Oakman, alleging that the cause of her injury was a wet substance on the floor of the office waiting room. In December, 1984, a jury trial was held in Wayne Circuit Court, with the jury deciding the claim relating to Oakman and Judge Edward M. Thomas, sitting as the Court of Claims, deciding the claim relating to DSS. The jury found no cause for action against Oakman. However, Judge Thomas found DSS liable for Mrs. Ray's injury due to its failure to warn visitors of the probable presence of spills in the office. This Court affirmed liability against DSS, but remanded for a reconsideration of damages. See Ray v. Dep't of Social Services, 156 Mich.App. 55, 401 N.W.2d 307 (1986), lv. den. 428 Mich. 891 (1987).

Aetna did not defend DSS at trial, although DSS requested Aetna to do so in a declaratory action brought prior to trial. In an order issued May 1, 1985, Ingham Circuit Judge Robert Holmes Bell held that Aetna had a duty to defend DSS in the negligence action. However, in a declaratory judgment issued July 25, 1985, Judge Bell determined that Aetna did not have a duty to indemnify DSS for Mrs. Ray's judgment against DSS.

This Court subsequently issued an opinion and order reversing Judge Bell's declaratory judgment. Michigan Dep't of Social Services v. Aetna Casualty & Surety Co., unpublished opinion per curiam of the Court of Appeals, decided January 29, 1987 (Docket No. 87171). This Court stated that summary disposition in favor of Aetna was improper because Aetna had not carried its burden of demonstrating that the policy exclusion applied in this case. Under the exclusion, Aetna would be relieved of its duty to pay DSS only if DSS was proven to be "solely negligent." This Court agreed with case law which considered the phrase "sole negligence" to mean one hundred percent negligence. This Court then held that Aetna would have no duty to pay DSS only if Mrs. Ray's injuries resulted one hundred percent from DSS's negligence. This Court noted that, in the underlying action against DSS, Judge Thomas did not hold that DSS's negligence was the only cause; rather, Judge Thomas' decision was made only as a Court of Claims judge deciding against a single defendant, DSS, and the issue of whether anyone else was negligent was not before him.

On remand, the Ingham Circuit Court, Lawrence M. Glazer, J., granted summary disposition in favor of DSS, entitling it to indemnification because, as a matter of law, Aetna would not be able to prove that DSS was in fact solely negligent in causing Mrs. Ray's injury.

On appeal, Aetna claims that Judge Glazer erred in granting summary disposition in favor of DSS because an issue of material fact existed as to whether Aetna could prove sole negligence on the part of DSS. We disagree.

DSS's motion for summary disposition was brought pursuant to MCR 2.116(C)(10). The standard for this Court's review of such a motion was concisely set forth in W.B. Cenac Medical Service, P.C. v. Michigan Physicians Mutual Liability Co., 174 Mich.App. 676, 681, 436 N.W.2d 430 (1989):

A motion for summary disposition brought under MCR 2.116(C)(10), based on the lack of a genuine issue of material fact, tests whether there is factual support for the claim. In ruling on the motion, the trial court must consider the affidavits, pleadings, depositions, admissions and other documentary evidence submitted by the parties. MCR 2.116(G)(5). The opposing party must show that a genuine issue of fact exists. Giving the benefit of all reasonable doubt to the opposing party, the trial court must determine whether the kind of record that might be developed would leave open an issue upon which reasonable minds could differ. Weeks v Bd of Trustees, City of Detroit General Retirement System, 160 Mich App 81, 84; 408 NW2d 109 (1987). A reviewing court should be liberal in finding that a genuine issue of material fact exists. Rizzo v Kretschmer, 389 Mich 363, 372; 207 NW2d 316 (1973). A court must be satisfied that it is impossible for the claim or defense to be supported at trial because of some deficiency which cannot be overcome. Rizzo, supra at 371 .

The party opposing a motion for summary disposition has the burden of showing that a genuine issue of disputed fact exists. Fulton v. Pontiac General Hospital, 160 Mich.App. 728, 735, 408 N.W.2d 536 (1987). The opposing party may not rest upon mere allegations or denials in the...