Nanasi v. General Motors Corp.

• Decision Date: 26 November 1974
• Docket Number: No. 1,Docket No. 17948,1
• Citation: 224 N.W.2d 914,56 Mich.App. 652
• Parties: Betty Jane NANASI, Administratrix of the Estate of Paul Nanasi, Deceased, Plaintiff, v. GENERAL MOTORS CORPORATION, a Delaware Corporation, Defendant, Cross- Plaintiff, Third-Party Plaintiff, Appellee, v. HUBER, HUNT & NICHOLAS, INC., an Indiana Corporation, and Albert Kahn, Associated Architects & Engineers, Inc., a Michigan Corporation, Defendants, Cross-Defendants, Appellees, and Bethlehem Steel Corporation, a Delaware Corporation, successor corporation to Bethlehem Steel Company, a Pennsylvania Corporation, Third-Party Defendant, Appellant
• Court: Court of Appeal of Michigan — District of US

Page 914

224 N.W.2d 914

56 Mich.App. 652

Betty Jane NANASI, Administratrix of the Estate of Paul

Nanasi, Deceased, Plaintiff, v. GENERAL MOTORS CORPORATION, a Delaware Corporation, Defendant, Cross- Plaintiff, Third-Party Plaintiff, Appellee, v. HUBER, HUNT & NICHOLAS, INC., an Indiana Corporation, and Albert Kahn, Associated Architects & Engineers,

Inc., a Michigan Corporation,

Defendants, Cross-Defendants, Appellees,

and

Bethlehem Steel Corporation, a Delaware Corporation,

successor corporation to Bethlehem Steel Company,

a Pennsylvania Corporation, Third-Party

Defendant, Appellant.

Docket No. 17948.

Court of Appeals of Michigan, Division No. 1.

Nov. 26, 1974.

Released for Publication Jan. 17, 1975.

Robert S. Krause and J. Bryan Williams, Dickinson, Wright, McKean & Cudlip, Detroit, for Bethlehem.

Charles T. McGorisk, Detroit, for GMC.

Randall D. Bryant, Detroit, for Huber.

Andrew F. Valenti, Detroit, for Kahn.

William H. Goodman, Detroit, for plaintiff.

Before BRONSON, P.J., and V. J. BRENNAN and VanVALKENBURG,* JJ. BRONSON, Presiding Judge.

Third-party defendant, Bethlehem Steel Corporation (hereinafter Bethlehem), is here appealing, on leave granted, the denial of two pretrial motions it filed in this wrongful death action.

Plaintiff, Betty Jane Nanasi, is the administratrix of the estate of Paul Nanasi, deceased, a former employee of Bethlehem. Nanasi was killed on the job February 15, 1965, and Bethlehem has paid workmen's compensation benefits.

This action was filed in Wayne County Circuit Court on February 17, 1966 against defendant-appellee, General Motors Corporation (hereinafter GM), the owner and operator of the manufacturing plant at which Bethlehem was undertaking a construction project. Pursuant to a stipulation between plaintiff and GM, the complaint was amended on March 4, 1968 to join as parties defendant: Huber, Hunt & Nichols, Inc. (hereinafter Huber, Hunt), the general contractor on the construction project; Albert Kahn, Associated Architects & Engineers, Inc. (hereinafter Kahn), the supervising architect of the project; and Bethlehem.

A motion by Bethlehem for summary judgment on the basis of workmen's compensation immunity ¹ was granted by the trial judge on June 5, 1970, eliminating Bethlehem as a primary defendant. On the same day the court granted motions by Huber, Hunt and GM for leave to file third-party complaints against Bethlehem, alleging common-law and contractual indemnity.

Bethlehem responded by moving for summary judgment on the third-party complaints. In the alternative, Bethlehem prayed for separate trial of the third-party action. Both motions were denied ² on July 20, 1973 and formed the basis for this appeal. For convenience, we will treat each motion separately.

I.

In its motion for summary judgment Bethlehem maintains that neither third-party complaint states a claim upon which relief can be granted. ³ Several grounds are advanced in support of this position. To unravel the procedural tangle created in these proceedings, we must briefly resort to preliminary stage-setting.

As Nanasi's employer, Bethlehem enjoys the protection of the Workmen's Compensation Act's exclusivity provision:

'(T)he right to the recovery of compensation benefits * * * shall be the exclusive remedy against the employer.' M.C.L.A. § 411.4; M.S.A. § 17.144, now M.C.L.A. § 418.131; M.S.A. § 17.237(131).

The protection afforded was comprehensive enough to warrant dismissal of plaintiff's complaint against Bethlehem as a primary defendant. See Maiuri v. Sinacola Construction Co., 382 Mich. 391, 394, 170 N.W.2d 27 (1969). It would also prevent maintenance of a third-party action against Bethlehem if the theory of common-law contribution was the sole basis for the relief sought. Husted v. Consumers Power Co., 376 Mich. 41, 135 N.W.2d 370 (1965). It is now clear, however, that 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. McLouth Steel Corp. v. A. E. Anderson Construction Corp., 48 Mich.App. 424, 210 N.W.2d 448 (1973), lv. den., 391 Mich. 754 (1973).

Bethlehem argues that the third-party complaints filed against it have been improperly drawn. Because we are reviewing only the pleadings here, our discussion will necessarily ignore those questions which must await trial for appropriate resolution, E.g., disputed questions of fact. See White v. McLouth Steel Corp., 18 Mich.App. 688, 691, 171 N.W.2d 662 (1969). We decide on this appeal only whether GM and Huber, Hunt should be allowed to go to trial on their third-party complaints as filed.

Both third-party complaints allege that Bethlehem's negligence was responsible for Nanasi's death. Bethlehem insists that negligence cannot be averred, as a matter of law, in a third-party complaint against an employer carrying workmen's compensation, on the authority of Estate of Clark 33 Mich.App. 395, 407--408, 190 N.W.2d 373, 379 (1971), rev'd on other grounds, 388 Mich. 637, 202 N.W.2d 300 (1972). Bethlehem reads Clark for more than it is worth, In Clark, as in Husted, supra, and Vannoy v. City of Warren, 15 Mich.App. 158, 166 N.W.2d 486 (1968), also cited by Bethlehem, the only basis alleged for recovery by the third-party plaintiff was contribution among joint tortfeasors. Since that theory of recovery had been foreclosed by Husted, supra, the negligence of the third-party defendant employers in Clark and Vannoy was irrelevant and properly excluded. Here, however, there is an independent basis of recovery--indemnity--as to which the negligence of Bethlehem as employer is not only relevant, but possibly controlling.

One theory of indemnity offered by third-party plaintiffs is grounded in vicarious liability. They allege that any liability they incur to plaintiff Nanasi 'would be vicarious in nature'. Plaintiff Nanasi's complaint is indeed susceptible, resolving doubts in favor of GM and Huber, Hunt, to a reading which includes as a theory of recovery liability for maintaining and conducting inherently dangerous activities. Thus, GM might be held vicariously liable for the death as an owner of property who allowed inherently dangerous activities to be conducted on its premises and Huber, Hunt might be held vicariously liable for allowing, as general contractor, inherently dangerous activities to be engaged in by persons under its control. See, generally, McDonough v. General Motors Corp., 388 Mich. 430, 201 N.W.2d 609 (1972); Funk v. General Motors Corp., 392 Mich. 91, 220 N.W.2d 641 (1974). On that theory, plaintiff would have to show that GM and Huber, Hunt were negligent. On first blush it might appear that Bethlehem's negligence would be irrelevant to such a showing. However, plaintiff alleges, Inter alia, that GM and Huber, Hunt were negligent in failing to adequately supervise the project. In order to substantiate this claim, Bethlehem's negligence is of prime concern, because one way to show that primary defendants GM and Huber, Hunt failed to adequately supervise the project would be to show what Bethlehem and its employees were allowed to do, I.e., negligently cause decedent's death.

GM and Huber, Hunt must be allowed to plead facts and conclusions which can be used to prove their indemnity claims. Therefore, it was not error to permit the allegation of negligence in the third-party complaint.

Bethlehem next contends that the third-party complaints failed to properly plead freedom from fault, a necessary ingredient to any common-law indemnity claim. It is true that one alleging common-law indemnity must plead and prove freedom from fault. Husted, supra; Indemnity Insurance Co. of North America v. Otis Elevator Co., 315 Mich. 393, 397--398, 24 N.W.2d 104 (1946). However, the negligence that is of concern here, and that which third-party plaintiffs must demonstrate freedom from, is active, causal negligence--the kind of negligence which was allegedly a proximate cause of Nanasi's death. McLouth Steel Corp. v. A. E. Anderson Construction Corp., Supra, 48 Mich.App. at 430--431, 210 N.W.2d 448.

The third-party plaintiffs have not admitted active negligence in their complaints. Rather, they have limited such admissions to 'passive negligence', exclusively denying active fault. They have also asserted vicarious liability as a basis for recovery against Bethlehem, raising an implication--which we must draw in interpreting the pleadings in their favor--that they claim freedom from negligence. This implication is bolstered by the fact that both third-party plaintiffs, in answering the primary complaint, explicitly deny the negligence attributed to them by plaintiff. Finally, GM and Huber, Hunt have pled an alternative contractual basis for indemnity as to which allegations of freedom from fault are not a pleading requirement. Chrysler Corp. v. Budd Co., 15 Mich.App. 634, 167 N.W.2d 105 (1969); M.C.L.A. § 691.991; M.S.A. § 26.1146(1). We hold, after a careful reading of the third-party complaints, that GM and Huber, Hunt have adequately pled freedom from negligence. GCR 1963, 111.1.

Bethlehem also maintains that the third-party complaints must be dismissed because of primary plaintiff's failure to plead the theory on which GM and Huber, Hunt assert indemnity, namely, vicarious liability. Bethlehem argues that GM and Huber, Hunt cannot allege that they will be held vicariously liable to plaintiff if plaintiff has not sued on that theory. Assuming Arguendo the validity of the argument, we are convinced that plaintiff has adequately pled vicarious liability.

Plaintiff clearly alleges in her amended complaint that the activities which caused decedent's injuries were inherently dangerous. She alleges negligence on the part of both GM and Huber, Hunt and claims that this negligence proximately caused Nanasi's death. Although the magic words 'vicarious liability' are absent, plaintiff has adequately pled the existence and...