Indiana Ins. Co. v. Erhlich
| Decision Date | 07 February 1994 |
| Docket Number | No. 1:92-cv-499.,1:92-cv-499. |
| Parties | INDIANA INSURANCE COMPANY, as Subrogee of Olivet College, v. Bernard ERHLICH, Individually and as a partner in WBTL Architects; Fredric M. Bell, Individually and as a partner in WBTL Architects; WBTL Architects, Planners & Interior Designers; Severud Associates; Holland Construction Company, Inc. Soil and Material Engineers, Inc.; D & J Excavating; and C.E. Hess and Sons, Defendants. |
| Court | U.S. District Court — Western District of Michigan |
COPYRIGHT MATERIAL OMITTED
Curt A. Benson, Denenberg, Tuffley & Jamieson, PC, Grand Rapids, MI, A. Richard Bailey, Cozen & O'Connor, Philadelphia, PA, Michelle F. Kitch, Morrison, Mahoney & Miller, Grand Rapids, MI, for Indiana Ins. Co.
William L. Kiriazis, Vandeveer, Garzia, PC, Detroit, MI, for Bernard Erhlich, Frederick M. Bell, WBTL Architects, Planners & Interior Designers.
James M. Cameron, Jr., Dykema, Gossett, PLLC, Ann Arbor, MI, for Severud Associates.
Drew F. Seaman, Sandra K. Visser, Straub, Seaman & Allen, St. Joseph, MI, for Holland Constr. Co., Inc.
Michael H. Whiting, Stark, Reagan & Finnerty, Troy, MI, for Soil and Material Engineers, Inc.
Robert B. Aardema, Bensinger, Cotant, Menkes & Aardema, PC, Grand Rapids, MI, for D & J Excavating.
Joseph A. Byrne, Jr., Ford, Kriekard, Domeny & Byrne, PC, Portage, MI, for C.E. Hess and Sons.
OPINION ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
This matter is before the court on the motions of the defendants for summary judgment (docket nos. 27, 32, 34, 35, 36, and 37). Plaintiff has opposed these motions. For the reasons to follow, the court hereby GRANTS the motions to the extent that they seek dismissal of all claims with the exception of any claims of gross negligence.
Olivet College is a small liberal arts college located in Olivet, Michigan. The college consists of 14 principal buildings, the majority of which are situated on an 80-acre campus. One of these buildings is Burrage Library (hereinafter the "old library"), originally built in 1890.
On October 21, 1987 Olivet entered into a contract with defendant WBTL Architects, Planners & Interior Designers ("WBTL"), a New York design firm which specializes in the construction, renovation, and rehabilitation of college and university libraries. WBTL agreed to perform certain professional services in connection with the design and construction of an addition to and renovation of Olivet's old library. Defendants Bernard Erhlich and Fredric M. Bell, both partners in WBTL, undertook certain responsibilities with respect to the Olivet project. Sometime after October 21, 1987, WBTL contracted with defendant Severud Associates ("Severud"), also a New York firm, to provide structural engineering services and consultation on the project. In October, 1990, Olivet contracted with defendant Soil and Material Engineers, Inc. ("SME"), a Michigan corporation, which agreed to perform quality control and material testing services in connection with the construction of the library addition.
Defendant Holland Construction Company, Inc. ("Holland"), is a Michigan corporation engaged in the business of commercial and residential construction. On December 19, 1990, Olivet entered into a contract with Holland for the construction of the library addition and renovation of the old library. Sometime later, Holland subcontracted with defendant C.E. Hess and Sons ("C.E. Hess"), a Michigan corporation engaged in the business of construction, excavation, and concrete contracting, to perform the concrete and excavation work at the site of the library addition. C.E. Hess, in turn, subcontracted with another firm, D & J Excavating ("D & J"), a Michigan corporation, to excavate and clear the site where the addition was to be built.
On January 17, 1991, after D & J had performed its excavation work for the library addition, the east wall of the old library collapsed, causing extensive damage to the building and its contents. At the time of the collapse, Olivet maintained property insurance with plaintiff Indiana Insurance Company ("Indiana"), an Indiana corporation. Indiana paid Olivet $493,786 for the loss.
Indiana filed this action seeking to enforce what it contends is its contractual and equitable right of subrogation against each of the defendants in connection with the library collapse. In its complaint, Indiana has asserted multiple claims against the various defendants, including negligence, breach of warranty, and breach of contract. Each of the defendants has moved for summary judgment under Fed.R.Civ.P. 56.
The contract between Holland and Olivet contained the following provision:
Id. at p. 6, ¶ 1.1.3. The "Project" is identified as "Olivet College Library: Expansion & Renovation." Id. at p. 1.
The contract between WBTL and Olivet contained a similar waiver provision, which reads as follows:
11.4 The Owner and the Architect waive all rights against each other and against the contractors, consultants, agents and employees of the other for damages covered by any property insurance during construction as set forth in the edition of AIA Document A201, General Conditions, current as of the date of this Agreement. The Owner and the Architect each shall require appropriate similar waivers from their contractors, consultants and agents.
WBTL's, Ehrlich's, and Bell's Motion for Summary Judgment, Exhibit A at p. 8.2
Summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In evaluating a motion for summary judgment, the court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). While inferences drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion, "when the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Only factual disputes which may have an effect on the outcome of a lawsuit under the applicable substantive law are "material." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.
A party seeking summary judgment bears the initial responsibility of identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Once the motion has been made and supported, the nonmoving party must go beyond the pleadings and provide the court with "specific facts showing that there is a genuine issue for trial." Fed. R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. If the nonmoving party has not had an opportunity to make full discovery, summary judgment may be denied or a hearing of the motion may be continued, in accordance with Fed.R.Civ.P. 56(f). Celotex, 477 U.S. at 326, 106 S.Ct. at 2554.
The defendants argue that the language contained in the Holland/Olivet and WBTL/Olivet contracts represents a release and waiver of all claims against them by Olivet, and therefore bars Indiana's claims against them as subrogee of Olivet. A subrogee acquires no greater rights than those possessed by its subrogor. Northwestern Mutual Ins. Co. v. Jackson Vibrators, Inc., 402 F.2d 37, 40 (6th Cir.1968); Commercial Union Ins. Co. v. Medical Protective Co., 426 Mich. 109, 393 N.W.2d 479, 482 (1986). Therefore, Indiana's claims against the defendants are subject to any defenses which the defendants have against Olivet, including release and waiver.3
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