Robinson v. A. Z. Shmina and Sons Co.

• Decision Date: 03 April 1980
• Docket Number: Docket No. 43205
• Citation: 96 Mich.App. 644,293 N.W.2d 661
• Parties: Alfred J. ROBINSON, Administrator of the Estate of David Robinson, Deceased, Plaintiff, v. A. Z. SHMINA AND SONS COMPANY, City of Pontiac Water Department, City of Pontiac, and Detroit Edison, Jointly and Severally, Defendants. A. Z. SHMINA AND SONS COMPANY, Defendant and Third-Party Plaintiff-Appellant, v. WEISS POLLUTION CONTROL CORPORATION, Third-Party Defendant-Appellee. 96 Mich.App. 644, 293 N.W.2d 661
• Court: Court of Appeal of Michigan — District of US

Page 661

293 N.W.2d 661

Alfred J. ROBINSON, Administrator of the Estate of David

Robinson, Deceased, Plaintiff, v. A. Z. SHMINA AND SONS COMPANY, City of Pontiac Water

Department, City of Pontiac, and Detroit Edison,

Jointly and Severally, Defendants.

A. Z. SHMINA AND SONS COMPANY, Defendant and Third-Party Plaintiff-Appellant, v. WEISS POLLUTION CONTROL CORPORATION, Third-Party

Defendant-Appellee.

Docket No. 43205.

96 Mich.App. 644, 293 N.W.2d 661

Court of Appeals of Michigan.

April 3, 1980.

Released for Publication July 11, 1980.

[96 MICHAPP 645] Roger F. Wardle, Farmington Hills, for A. Z. Shmina & Sons.

Jacob M. Abella, Detroit, for Detroit Edison.

Terry S. Welch, Mount Clemens, for Weiss Pollution Control.

Sheldon D. Erlich, Detroit, for Alfred J. Robinson.

[96 MICHAPP 646] Before KAUFMAN, P. J., and HOLBROOK and MAHER, JJ.

PER CURIAM.

This appeal arises from a third-party indemnity action.

In August, 1973, A. Z. Shmina and Sons Company (hereinafter Shmina) entered into a contract with the City of Pontiac for the construction of a water purification plant. Subsequently, Shmina subcontracted part of the work to Weiss Pollution Control Corporation (hereinafter Weiss). David Robinson, an employee of Weiss, suffered fatal injuries while working on the job. Alfred Robinson, the administrator of his estate, brought an action against Shmina. In turn, Shmina filed a third-party complaint against Weiss seeking indemnification if Shmina is ultimately held liable to the primary plaintiff.

In response to Shmina's third-party complaint, Weiss filed a motion for summary judgment contending: (1) that the contractual indemnification clause was void under M.C.L. § 691.991; M.S.A. § 26.1146(1), which prohibits an indemnitee from recovering for his sole negligence; and (2) Shmina was not entitled to common law indemnity because the primary plaintiff alleged that Shmina was actively negligent.

In his complaint, the primary plaintiff alleged that David Robinson was electrocuted while unloading a sluice gate valve from a crane which was parked in close proximity to a high voltage electrical wire and came in contact with the overhead wire. The primary plaintiff averred, inter alia, that Shmina was negligent in allowing the crane to be parked close to an overhead wire, in failing to warn the crane operator to avoid the wires, in failing to inspect the job site and discover the [96 MICHAPP 647] danger, in failing to equip the crane with insulation devices or proximity warning devices, and in failing to have the electrical wires de-energized.

After a hearing in the Wayne County Circuit Court, the trial judge granted Weiss's motion for summary judgment on the basis of contractual indemnity, finding that the indemnity clause in question violated the sole negligence provision of M.C.L. § 691.991; M.S.A. § 26.1146(1). However, the trial judge denied Weiss' second ground for summary judgment, finding that Shmina's third-party complaint properly stated a claim for common law indemnity. This portion of the decision has not been appealed, and our decision is confined to the issue of contractual indemnity.

Shmina brought a motion for rehearing in the trial court on the issue of contractual indemnity. The motion was denied in an opinion written on August 29, 1978. Shmina appeals as of right from the order implementing the trial court's opinion.

The indemnity clause between Shmina and Weiss, which is contained in the subcontract, provides:

"That the Subcontractor shall:

"(1) Be bound to the Contractor by the terms of the Contractor Documents and this Agreement, and assume toward the Contractor all the obligations and responsibilities that the Contractor, by those documents, assumes toward the Owner, as applicable to this Subcontract."

The interpretation of this so-called "step-over" clause depends upon the contract between the City of Pontiac (referred to as the "owner") and Shmina, the general contractor (or "contractor"). The indemnity clause between Shmina and the city provides:

[96 MICHAPP 648] "B-4.09.01 The Contractor will indemnify and hold harmless the Owner and the Engineer and their agents and employees from and against all claims, damages, losses and expenses including attorneys' fees arising out of or resulting from the performance of The Work, provided that any such claim, damage, loss or expense (a) 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 and (b) is caused in whole or in part by any negligent act or omission of the Contractor, any Subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by a party indemnified hereunder.

"B-4.09.02 In any and all claims against the Owner or the Engineer or any of their agents or employees by any employee of the Contractor, any Subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, the indemnification obligation under Paragraph B-4.09.01 shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the Contractor or any Subcontractor under workmen's compensation acts, disability benefit acts or other...