Ormsby v. Capital Welding, Inc.

• Decision Date: 18 April 2003
• Docket Number: Docket No. 233563.
• Citation: 255 Mich. App. 165,660 N.W.2d 730
• Parties: Ralph ORMSBY and Kimberly Ormsby, Plaintiffs-Appellants, v. CAPITAL WELDING, INC., Defendant/Cross-Defendant-Appellee/Cross-Appellee, and Monarch Building Services, Inc., Defendant/Cross-Plaintiff-Appellee/Cross-Appellant, and Metropolitan Building Services and Rite-Aid of Michigan, Defendants-Not Participating.
• Court: Court of Appeal of Michigan — District of US

660 N.W.2d 730

255 Mich. App. 165

Ralph ORMSBY and Kimberly Ormsby, Plaintiffs-Appellants, v. CAPITAL WELDING, INC., Defendant/Cross-Defendant-Appellee/Cross-Appellee, and Monarch Building Services, Inc., Defendant/Cross-Plaintiff-Appellee/Cross-Appellant, and Metropolitan Building Services and Rite-Aid of Michigan, Defendants-Not Participating.

Docket No. 233563.

Court of Appeals of Michigan.

Submitted December 10, 2002, at Detroit.

Decided January 24, 2003, at 9:00 a.m.

Released for Publication April 18, 2003.

Miller & Padilla, P.C. (by Neil A. Miller) (Sommers, Schwartz, Silver & Schwartz, P.C., by Patrick Burkett, of counsel), Troy, Southfield, for Ralph and Kimberly Ormsby.

Joseph J. Wright, PLLC (by Joseph J. Wright), Southfield, for Capital Welding, Inc.

Pedersen, Keenan, King, Wachsberg & Andrzejak, P.C. (by Michael M. Wachsberg), Commerce Township, for Monarch Building Services, Inc.

Before: KIRSTEN FRANK KELLY, P.J. and JANSEN and DONOFRIO, JJ.

KIRSTEN FRANK KELLY, P.J.

In this negligence case, plaintiff¹ appeals an order granting summary disposition in favor of defendants Capital Welding, Inc., and Monarch Building Services, Inc. Monarch cross appeals an order granting Capital's motion for summary disposition of Monarch's cross-claim against Capital. We affirm in part and reverse in part.

I. Basic Facts and Procedural History

The injury giving rise to this claim occurred while plaintiff, a journeyman iron worker with fourteen years' experience, was working at a construction site owned by defendant Rite-Aid of Michigan at which Monarch was the general contractor and Capital a subcontractor that, in turn, subcontracted with plaintiff's employer, Abray Steel Erectors.

Rite-Aid and Monarch had a written contract (Rite-Aid/Monarch contract) that set forth Monarch's obligations. In relevant part, the contract provided that Monarch was "solely responsible for all construction means, methods, techniques, sequences and procedures for coordinating all portions of the Work under the Agreement" and "responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work." The contract also provided that Monarch must take "all reasonable precautions for safety of, and shall provide all reasonable protection to prevent damage, injury or loss to ... all employees on the Work and all other persons who may be affected thereby" and "shall erect and maintain, as required by existing conditions and progress of the Work, all reasonable safeguards for safety protection." The contract also provided that Monarch agreed to "not load or permit any part of the Work to be loaded so as to endanger safety."

Similarly, Monarch and Capital had a written contract (Monarch/Capital contract) that set forth Capital's obligations. This contract provided, in relevant part: "The Subcontractor shall take reasonable safety precautions with respect to performance of this Subcontract, shall comply with safety measures initiated by the Contractor and with applicable laws, ordinances, rules, regulations and orders of public authorities for the safety of persons or property in accordance with the requirements of the Prime Contract." The Monarch/Capital contract also provided that Capital would indemnify Monarch against claims arising from the performance of Capital's work.

Plaintiff, the foreman on the site, began work on the single-story steel-framed structure the day before his injury occurred. Because one side of the building had already been erected, plaintiff was instructed to erect the other side. Plaintiff began construction by standing up columns, making the beams and "landing" the joists² and the decking.³ Plaintiff loaded the decking on the joists that had not yet been welded or bolted, but had been Cclamped in place.

Plaintiff testified that the joists supplied for the job were not manufactured to be bolted, something he had not seen before. Alex Stadler, an employee of Capital and the site's project manager, instructed plaintiff to fabricate lugs⁴ from angle iron to weld to the columns as a substitute. At some point during the execution of this task, plaintiff stood on a bundle of decking that had been loaded onto the joists. As he stood on the decking, he prepared the joists for welding by spacing them. As he attempted to space a joist by hitting it with a sledgehammer, the joists and decking on which he stood shifted, causing him to fall and sustain injuries. Plaintiff testified that a mason was working "right below" him when the structure collapsed.

Plaintiff filed a complaint against Capital, alleging that it negligently failed to employ careful management personnel, violated its nondelegable duty to provide a safe place to work, retained control of and negligently supervised and inspected the workplace, failed to warn of hazardous methods of work, incorporated defective or insufficient structural steel, and acquiesced to unsafe construction activities, including loaded unwelded bar joists. Plaintiff later amended the complaint to add identical claims against Monarch.

Capital moved for summary disposition of plaintiff's claims pursuant to MCR 2.116(C)(8) and (C)(10). Capital argued that there was no genuine issue of fact regarding whether Capital retained control over the work performed and whether the work was inherently dangerous. With respect to whether Capital retained control, Capital argued that Abray retained control over plaintiff's work, that the Monarch/Capital contract did not establish that Capital retained control, and that plaintiff could not establish that Capital retained control because plaintiff was not injured in a common work area.

Plaintiff argued that Capital was liable on the basis of the Monarch/Capital contract provision that Capital "shall be solely responsible for all construction means, methods, techniques, sequences and procedures." Plaintiff also argued that the evidence demonstrated that Capital "dictated the means and methods of erecting the steel." Plaintiff further argued that the activity was inherently dangerous.

The trial court granted Capital's motion. Combining the retained control and common work area theories, the trial court determined that "the retained control theory applies only in situations involving `common work areas.'" The trial court found that (1) plaintiff failed to allege that his injury occurred in a common work area and (2) "there is no evidence that other subcontractors would work on the erection of the steel structure." The trial court also found that plaintiff could not succeed with his retained control claim based on the Rite-Aid/Monarch and Monarch/Capital contracts because he was not a third-party beneficiary of those contracts. The trial court also dismissed plaintiff's inherently dangerous activity claim, finding that there was no evidence suggesting that plaintiff's work was other than "a routine construction job."

Monarch filed a cross-claim against Capital for indemnification based on the Monarch/Capital contract. Monarch alleged: "In the unlikely event Cross-Plaintiff is found to be liable to Plaintiff or any Co-Defendant, it would be entitled to full and complete expressed contractual indemnification for any damages sustained by Plaintiff... including any judgment, cost, interest and attorney fees." Pursuant to MCR 2.116(C)(10), Capital moved for summary disposition of Monarch's cross-claim for indemnification for Monarch's own liability. Monarch also filed a motion for summary disposition pursuant to MCR 2.116(C)(10), arguing that plaintiff, an employee of Abray, was injured by his own negligence; therefore, Capital was contractually obligated to indemnify Monarch against plaintiff's claims. The trial court granted Capital's motion and denied Monarch's motion. The trial court found that the Monarch/Capital contract obligated Capital to indemnify Monarch only for claims arising from Capital's negligence. The trial court found that because Capital was dismissed from the case, Monarch could not seek indemnification for claims arising only from Monarch's own negligence.

Monarch also filed a motion for summary disposition of plaintiff's claims, arguing that the trial court's previous ruling required it to grant summary disposition with respect to plaintiff's claims against Monarch. The trial court granted this motion for the reasons stated in its previous order granting summary disposition to Capital.

Plaintiff moved for leave to amend his complaint to allege that his injuries occurred in a common work area and that he was a third-party beneficiary of the Monarch/Capital contract. The trial court denied this motion, ruling that the amendment would be futile in view of its prior rulings.

II. Standard of Review

We review the grant or denial of a motion for summary disposition de novo. Haliw v. Sterling Hts., 464 Mich. 297, 301-302, 627 N.W.2d 581 (2001). In reviewing a motion for summary disposition brought under MCR 2.116(C)(10), the court must consider the affidavits, pleadings, depositions, admissions, and documentary evidence filed in the action or submitted by the parties in the light most favorable to the party opposing the motion. Haliw, supra at 302, 627 N.W.2d 581. Summary disposition may be granted if the evidence demonstrates that there is no genuine issue with respect to any material fact, and the moving party is entitled to judgment as a matter of law. Id. Summary disposition pursuant to MCR 2.116(C)(8) tests the legal sufficiency of a claim by the pleadings alone; the motion may not be supported with documentary evidence.

III. General Contractor Liability

Generally, the employer of an independent contractor is not liable for harm caused to another by the subcontractor or its servants. Groncki v. Detroit Edison Co., 453 Mich. 644, 662, 557 N.W.2d 289 (1996) (Brickley, C.J.); Hughes v. PMG Building, Inc., 227 Mich.App. 1, 5, 574 N.W.2d 691 (1997); Signs v. Detroit Edison Co., ...