Diekevers v. Brekel Inc., Docket No. 27084

• Citation: 250 N.W.2d 548,73 Mich.App. 78
• Decision Date: 10 December 1976
• Docket Number: Docket No. 27084
• Parties: Richard DIEKEVERS, Plaintiff, v. BREKEL INCORPORATED, a Foreign Corporation, Defendant. SCM CORPORATION, a corporation, Defendant and Third-Party Plaintiff-Appellant, v. Truman DEKKER, Individually and d/b/a Huizenga's Wholesale Meats, Third-PartyDefendant-Appellee, and Employers Mutual Liability Insurance Company of Wisconsin, a ForeignCorporation, Third-Party Defendant-Appellee, and Brekel Incorporated, a Foreign Corporation, Third-Party Defendant. *
• Court: Court of Appeal of Michigan (US)

Page 548

250 N.W.2d 548

73 Mich.App. 78

Richard DIEKEVERS, Plaintiff, v. BREKEL INCORPORATED, a Foreign Corporation, Defendant.

SCM CORPORATION, a corporation, Defendant and Third-Party Plaintiff-Appellant, v. Truman DEKKER, Individually and d/b/a Huizenga's Wholesale

Meats, Third-PartyDefendant-Appellee,

and

Employers Mutual Liability Insurance Company of Wisconsin, a

ForeignCorporation, Third-Party Defendant-Appellee,

and

Brekel Incorporated, a Foreign Corporation, Third-Party

Defendant. ^*

Docket No. 27084.

Court of Appeals of Michigan.

Dec. 10, 1976.

Released for Publication Feb. 28, 1977.

Fitzgerald, Peters & Damm by Geoffrey L. Smith, Detroit, for appellant.

Marvin H. Gadd and Sharon C. Ranucci, Southfield, for Huizenga's and Employers.

Philo, Maki, Cockrel, Robb, Spearman & Cooper by Harry M. Philo, Detroit, for Diekevers.

Seth H. Barsky, Southfield, for Brekel.

Before WALSH, P.J., and R. B. BURNS and BIVINS, ^* JJ.

R. B. BURNS, Judge.

The principal case arises out of a claim for injuries sustained by the plaintiff while operating a grinding machine in the course of his employment with third-party defendant-appellee Truman Dekker, d/b/a Huizenga's Wholesale Meats (Huizenga).

The principal defendant, SCM Corporation, was sued by plaintiff as manufacturer of the machine. SCM filed third-party complaints for indemnification against Huizenga and against Employers Mutual Liability Insurance Company (Employers Mutual), the Workmen's Compensation carrier for Huizenga.

Both third-party defendants filed motions for summary judgment under GCR 1963, 117.2(1) claiming that SCM's third-party complaints failed to state a cause of action in indemnification as to either of the third-party defendants. The motions were granted, and SCM appeals.

It is now clear that, in certain contexts, 'an employer can be joined as a third-party defendant on an indemnity theory, without disturbing the exclusive remedy clause of the Workmen's Compensation Act (M.C.L.A. § 418.131; M.S.A. § 17.237(131)).' Nanasi v. General Motors Corp., 56 Mich.App. 652, 656--657, 224 N.W.2d 914, 916 (1974). Citing McLouth Steel Corp. v. A. E. Anderson Construction Corp., 48 Mich.App. 424, 210 N.W.2d 448 (1973).

One such context is where 'the parties have entered into a written contract in which one party has clearly agreed to indemnify the other'. Dale v. Whiteman, 388 Mich. 698, 704, 202 N.W.2d 797, 800 (1972). Another, and the most typical and important context, allows common-law indemnity where the principal defendant suffers vicarious liability due to its relationship with the third party. Nanasi, supra, 56 Mich.App., at 658, 224 N.W.2d 914; McLouth, supra, 48 Mich.App., at 430, 210 N.W.2d 448. This latter relationship frequently results from 'inherently dangerous' activities, and constitutes the theory supporting indemnification whether or not 'the magic words 'vicarious liability" are present or absent in plaintiff's complaint. Nanasi, supra, 56 Mich.App., at 660, 224 N.W.2d 914.

The common thread running through the Dale, McLouth and Nanasi cases is the existence of a special relationship between the primary defendant and the third-party defendant--whether a contractual relationship or a fact situation to impose vicarious liability--that permits the primary defendant to be held liable for injuries proximately caused by the negligence of the latter. Our question thus effectively reduces to a determination of whether or not the primary complaint claims recovery under an allegation or inference of such a 'special relationship' so as to give rise to the right of indemnification; if so, the summary judgments were improvidently granted.

The primary plaintiff's complaint in this case alleged negligent design and manufacture as the basis of liability against SCM. The complaint does not even begin to infer any vicarious liability of SCM. In turn, SCM's third-party complaint against the employer pleads freedom from active, proximate and causal negligence and asserts active negligence on the part of Huizenga. SCM's complaint does not rely upon a theory of vicarious...