Keil v. US

• Decision Date: 13 December 1988
• Docket Number: Civ. A. No. 87 CV 73152 DT.
• Citation: 705 F. Supp. 346
• Parties: Charles KEIL, Plaintiff, v. UNITED STATES of America, Defendant and Third-Party Plaintiff, v. CHAFFEE ROOFING CO., INC., Third-Party Defendant.
• Court: U.S. District Court — Western District of Michigan

705 F. Supp. 346

Charles KEIL, Plaintiff,
v.
UNITED STATES of America, Defendant and Third-Party Plaintiff,
v.
CHAFFEE ROOFING CO., INC., Third-Party Defendant.

Civ. A. No. 87 CV 73152 DT.

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

December 13, 1988.

705 F. Supp. 347

Lee B. Steinberg, Southfield, Mich., for Charles Keil.

Geneva Halliday, Asst. U.S. Atty., Detroit, Mich., for U.S.

Matthew W. Schlegel, Southfield, Mich., for Chaffee Roofing Co.

MEMORANDUM OPINION AND ORDER

FRIEDMAN, District Judge.

This matter is before the Court on Magistrate Virginia M. Morgan's Report and Recommendation of November 21, 1988 that third-party defendant's motion for summary judgment be denied. No objections have been filed to the Report and Recommendation.

Title 28, U.S.C. § 636(b)(1) states:

Within ten days after being served with a copy of the magistrate's report and recommendation, any party may serve and file written objections to such proposed findings and the recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendation to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions.

As there have been no objections to the Magistrate's Report and Recommendation, and as a careful review of the record indicates

705 F. Supp. 348

that the Magistrate reached the correct conclusions, the Court shall accept and adopt the Report and Recommendation

The Court notes that, since objections to the Magistrate's Report and Recommendation were not filed, the parties have waived their right of appeal. United States v. Walters, 638 F.2d 947 (6th Cir.1981); Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).

Accordingly,

IT IS HEREBY ORDERED that the Magistrate's Report and Recommendation of November 21, 1988 is ACCEPTED and ADOPTED.

IT IS FURTHER ORDERED that third-party defendant Chaffee's motion for summary judgment is DENIED.

MAGISTRATE'S REPORT AND RECOMMENDATION DENYING CHAFFEE ROOFING'S MOTION FOR SUMMARY JUDGMENT

VIRGINIA M. MORGAN, United States Magistrate.

The matter before the court is the motion for summary judgment by the third-party defendant, Chaffee Roofing. The original action involves a claim for personal injuries by Keil, an employee of Chaffee Roofing, against the United States. Jurisdiction is vested in the court pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2674. Chaffee Roofing (Chaffee) had contracted with the Army Corps of Engineers to perform roof replacement at the United States Army Tank Command Detroit Arsenal (Tacom) in Warren, Michigan. The case arose from an incident on September 4, 1984, when Keil, while employed by Chaffee Roofing, was working on the roof and allegedly slipped on debris, fell, and injured himself. Keil received worker's compensation from Chaffee Roofing as his exclusive tort remedy against his employer under state law. He then filed this suit against the United States, as the general contractor, alleging that the United States was negligent. The United States, in turn, brought suit against Chaffee Roofing to enforce the indemnification clause in the contract between it and Chaffee.

In the motion, Chaffee seeks dismissal of the suit filed against it by the government. The United States responded and oral argument was heard. At oral argument, the court gave the parties ten days to submit supplemental briefs on the following issues: the status of joint and several liability in Michigan, and any public policy arguments against enforcing an indemnification clause which would require the employer to pay the same amount which would be payable under a theory of "contribution." The supplemental briefs have been submitted and the motion is ready for decision.¹

Summary judgment is governed by Rule 56 of the Federal Rules of Civil Procedure, which provides in pertinent part:

"The judgment sought shall be rendered forthwith if 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."

In ruling on a motion for summary judgment, the Supreme Court's recent decision in Celotex v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), provides guidance. The Court rejected a standard which required moving parties to support their motions for summary judgment with an affirmative evidentiary showing which tended to negate the essential elements of plaintiff's case. Id. 477 U.S. at 325, 106 S.Ct. at 2554. Instead the Court said, "the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the non-moving party's case." Id. Once the moving party has made this showing, the burden passes to the non-moving party to go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. Id.; see also, Roby v. Center

705 F. Supp. 349

Companies, 679 F.Supp. 664 (E.D.Mich. 1987)

Both parties agree that the only issue before this court is whether the contractual indemnification clause between the United States and Chaffee permits the United States to recover from Chaffee where an action for contribution against Chaffee would be barred under state law because of the exclusivity provision of worker's compensation. The government, at oral argument, conceded that it does not seek indemnification on the basis of either common law or an implied contractual right, but relies on the express language of the contract.

At the outset, definition of the two principle terms in this case, contribution and indemnification, is necessary. Generally, contribution distributes a loss among joint tort feasors, requiring each to pay its proportionate share. Langley v. Harris Corp., 413 Mich. 592, 321 N.W.2d 662, 665 (1982) (citing Prosser, Torts, 51 (4th Ed.)). Indemnification "shifts the entire loss from the party who has been forced to pay to the party who should properly bear the burden." Id. A right to indemnification may arise through an express contract or through an implied contract or by law. Id. Absent an express contract, indemnification will arise only where equity so requires. Id.

Because the employee's exclusive tort remedy against the employer Chaffee is the Worker's Disability Compensation Act², a party who has been sued by an employee for work-related injuries no longer has a right of contribution against the employer. Husted v. Consumers Power Co., 376 Mich. 41, 135 N.W.2d 370 (1965); Prosser, Torts, 50 (5th Ed., 1984).

In this case, the amount of indemnification under the contract may equal the amount which would have been awarded as contribution in tort. In other words, the contractual clause authorizes recovery of the same amount which would be barred if this were an action for contribution. At first blush, this case seems simplistic. At issue is the interpretation of a clause in a federal contract. However,...