MSI Const. Managers, Inc. v. Corvo Iron Works, Inc.

• Decision Date: 17 January 1995
• Docket Number: Docket No. 144824
• Citation: 527 N.W.2d 79,208 Mich.App. 340
• Parties: MSI CONSTRUCTION MANAGERS, INC., a Michigan corporation, Third-Party Plaintiff-Appellee, v. CORVO IRON WORKS, INC., Third-Party Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 79

527 N.W.2d 79

208 Mich.App. 340

MSI CONSTRUCTION MANAGERS, INC., a Michigan corporation Third-Party Plaintiff-Appellee, v. CORVO IRON WORKS, INC., Third-Party Defendant-Appellant.

Docket No. 144824.

Court of Appeals of Michigan.

Submitted May 10, 1994, at Detroit.

Decided Jan. 17, 1995, at 9:30 a.m.

Released for Publication Feb. 21, 1995.

Coticchio, Zotter, Sullivan, Molter, Skupin & Turner, P.C. by Walter J. Zotter, Detroit, for MSI Const. Managers, Inc.

Harvey, Kruse, Westen & Milan, P.C. by Francis H. Poretta and Andrew C. Vredenburg, Troy, for Corvo Iron Works, Inc.

Before MARILYN J. KELLY, P.J., and SHEPHERD and BORRELLO, ^* JJ.

MARILYN J. KELLY, Presiding Judge.

Third-party defendant, Corvo Iron Works, Inc., appeals as of right from an order of judgment in favor of third-party plaintiff, MSI Construction Managers, Inc., in this negligence action.

Corvo claims that the trial court erred in failing to properly apportion fault and in assessing damages. It also alleges that certain evidence was erroneously admitted. We vacate a portion of the judgment.

I

In 1987, plaintiff Dale Frank was seriously injured in a construction site accident. MSI was the construction manager of the project. Corvo, a subcontractor, supplied the steel beams involved in the accident. Frank filed a claim against MSI. MSI, as third-party plaintiff, sued Corvo seeking indemnification.

At trial, MSI and Corvo disputed the effect to be given to an indemnification clause in the subcontract. Corvo claimed that, if it was found to be negligent, it would be liable only to the extent of its own negligence. MSI argued that the clause required Corvo to fully indemnify MSI if Corvo were found at all negligent. The judge permitted the jury to assess the relative degrees of fault between Corvo and MSI. He concluded that, if Corvo were found to be negligent, Corvo would be required to indemnify MSI to the full extent of the judgment.

The jury returned a verdict in favor of the Franks against MSI and Corvo. The jury found MSI to be sixty-five percent negligent and Corvo to be thirty-five percent negligent. The jury also found in favor of MSI against Corvo in the third-party suit. The order of judgment instructed Corvo to fully indemnify MSI for the entire amount awarded to the Franks.

II

On appeal, Corvo contends that the trial judge erred in requiring it to fully indemnify MSI for its negligence. Corvo contends that it should have been required to indemnify MSI only to the extent it was actually found to be negligent.

The disputed clause provides:

To the fullest extent permitted by law, the Subcontractor shall indemnify and hold harmless the Owner, the Architect and the Contractor and all of their agents and employees from and against all claims, damages, losses and expenses, including but not limited to attorneys' fees arising out of or resulting from the performance of the Subcontractor's work under this Subcontract, provided that any such claim, damage, loss, or expense is attributable to bodily injury, sickness, disease, or death or to injury to or destruction of tangible property (other than the Work itself) including the loss of use resulting therefrom, to the extent caused in whole or in part by any negligent act or omission of the Subcontractor or anyone directly or indirectly employed by him or anyone for whose acts he may be liable, regardless of whether it is caused in part by a party indemnified hereunder. Such obligations should not be construed to negate, or abridge, or otherwise reduce any other right or obligation of indemnity which otherwise exists as to any party or person described in this Paragraph 11.11.

Indemnity contracts should be construed to ascertain and give effect to the intentions of the parties. Fischbach-Natkin Co. v. Power Process Piping, Inc., 157 Mich.App. 448, 452, 403 N.W.2d 569 (1987). In ascertaining their intentions, one must consider the language used in the contract as well as the situation of the parties and circumstances surrounding the contract. Meadows v. Depco Equipment Co., 4 Mich.App. 370, 375, 144 N.W.2d 844 (1966). A provision which seeks to indemnify a promisee against liability for its own negligence is valid in the case of concurrent negligence by multiple tortfeasors. Fishbach-Natkin, 157 Mich.App. at p. 461, 403 N.W.2d 569; Harbenski v. Upper Peninsula Power Co., 118 Mich.App. 440, 453, 325 N.W.2d 785 (1982). An indemnity clause should be interpreted to give a reasonable meaning to all its provisions. Pritts v. J.I. Case Co., 108 Mich.App. 22, 30, 310 N.W.2d 261 (1981).

Here, in contrast to Fishbach-Natkin and Pritts, the trial court erred in concluding that the clause required Corvo to fully indemnify MSI for the entire judgment awarded to the Franks. The indemnity clause envisions that Corvo will indemnify MSI. However, MSI's interpretation of the...