Duhame v. Kaiser Engineering of Michigan, Inc.

• Decision Date: 21 November 1980
• Docket Number: Docket Nos. 47040,47326 and 47327
• Citation: 102 Mich.App. 68,300 N.W.2d 737
• Parties: Mary Lou DUHAME, Special Administratrix of the Estate of Ronald Francis Duhame, Deceased, Mary Lou Duhame, Individually, and Ronald Paul Duhame, Donna Renee Duhame, and Daniel Kevin Duhame, by their next friend, Michael L. Battersby, Plaintiffs, v. KAISER ENGINEERS OF MICHIGAN, INC., a Michigan Corporation, Cleveland Cliffs Iron Company, a Foreign Corporation, Tilden Mining Company, a Michigan Corporation, Tilden Iron Ore Company, a Michigan Corporation, J & L Cliffs Ore Partnership, a partnership organized under the laws of Ohio, Jones and Laughlin Ore Mining Company, a Pennsylvania Corporation, Cleveland Cliffs Ore Corporation, an Ohio Corporation, and Whitehead and Kales Company, a Michigan Corporation, Defendants, Third-Party Plaintiffs, Appellants, v. W & K ERECTORS, INC., a Michigan Corporation, Third-Party Defendant, Appellee. 102 Mich.App. 68, 300 N.W.2d 737
• Court: Court of Appeal of Michigan — District of US

Page 737

300 N.W.2d 737

Mary Lou DUHAME, Special Administratrix of the Estate of

Ronald Francis Duhame, Deceased, Mary Lou Duhame,

Individually, and Ronald Paul Duhame, Donna Renee Duhame,

and Daniel Kevin Duhame, by their next friend, Michael L.

Battersby, Plaintiffs, v. KAISER ENGINEERS OF MICHIGAN, INC., a Michigan Corporation,

Cleveland Cliffs Iron Company, a Foreign Corporation, Tilden

Mining Company, a Michigan Corporation, Tilden Iron Ore

Company, a Michigan Corporation, J & L Cliffs Ore

Partnership, a partnership organized under the laws of Ohio,

Jones and Laughlin Ore Mining Company, a Pennsylvania

Corporation, Cleveland Cliffs Ore Corporation, an Ohio

Corporation, and Whitehead and Kales Company, a Michigan

Corporation, Defendants, Third-Party Plaintiffs, Appellants, v. W & K ERECTORS, INC., a Michigan Corporation, Third-Party

Defendant, Appellee.

Docket Nos. 47040, 47326 and 47327.

102 Mich.App. 68, 300 N.W.2d 737

Court of Appeals of Michigan.

Nov. 21, 1980.

Released for Publication Jan. 29, 1981.

[102 MICHAPP 70] John R. Beauchamp, Escanaba, for Whitehead and Kales Co.

Ronald D. Keefe, Marquette, for Cleveland Iron and Tilden Mining.

Michael V. Kell, Detroit, for Kaiser Engineers of Mich., Inc.

Thomas J. Corcoran, Sault Ste Marie, for W & K Erectors, Inc.

Andrew Wisti, Hancock, for Duhame.

Before J. H. GILLIS, P. J., and BASHARA and CYNAR, JJ.

PER CURIAM.

Plaintiffs' decedent, Ronald Francis Duhame, sustained personal injuries and died as a result of a construction accident. Plaintiffs filed suit in circuit court seeking personal injury and wrongful death damages from defendants, owners [102 MICHAPP 71] of the property where the accident occurred and the general contractor. Defendants filed a third-party indemnification complaint against W & K Erectors, Inc. (hereinafter W & K), a subcontractor and decedent's employer at the time of the accident. W & K filed a motion for summary judgment under GCR 1963, 117.2(1). The motion asserted that the principal complaint alleged only active negligence on the part of defendants, thereby precluding an action of indemnification against W & K. The trial court granted the motion. Defendants' motions for interlocutory appeal were granted.

GCR 1963, 117.2(1) states that the movant is entitled to summary judgment in his favor when the opposing party has failed to state a claim upon which relief can be granted. A motion based on GCR 1963, 117.2(1) challenges the legal sufficiency of the complaint and is to be considered by an examination of the pleadings alone. It is the duty of the reviewing court to accept as true well-pleaded facts in the complaint and to determine whether those claims are so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. Koenig v. Van Reken, 89 Mich.App. 102, 104, 279 N.W.2d 590 (1979).

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 [102 MICHAPP 72] 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., 1975) (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), 41 Am.Jur.2d, Indemnity, § 20, pp. 706-710.

The gravamen of the principal complaint is contained in paragraphs nine through twelve. Those paragraphs allege that the defendants breached their duties to provide decedent with a safe place to work, to warn decedent of hidden dangers, and to make adequate safety inspections. These allegations clearly claim active negligence on the part of defendants rather than vicarious liability.

Defendants point to paragraph ten of the principal complaint in support of their argument that it alleges vicarious liability. Paragraph ten avers that Cleveland Cliffs Iron Company and Kaiser Engineering of Michigan, Inc., defendants, breached their duty to ensure that the highly dangerous activities which were taking place at the construction project were being done in a safe manner.

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 [102 MICHAPP 73] 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....