Sherman v. DeMaria Bldg. Co., Inc.

• Decision Date: 08 February 1994
• Docket Number: Docket No. 145220
• Citation: 513 N.W.2d 187,203 Mich.App. 593
• Parties: Richard SHERMAN, Plaintiff, v. DeMARIA BUILDING COMPANY, INC., Defendant and Third-Party Plaintiff-Appellee, v. GLASCO COMPANY, Third-Party Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 187

513 N.W.2d 187

203 Mich.App. 593

Richard SHERMAN, Plaintiff, v. DeMARIA BUILDING COMPANY, INC., Defendant and Third-Party Plaintiff-Appellee, v. GLASCO COMPANY, Third-Party Defendant-Appellant.

Docket No. 145220.

Court of Appeals of Michigan.

Submitted Dec. 14, 1993, at Detroit.

Decided Feb. 8, 1994, at 9:55 a.m.

Released for Publication April 1, 1994.

Haliw, Siciliano & Mychalowych by Andrew J. Haliw, III, Farmington Hills, for DeMaria Building Co., Inc.

Garan, Lucow, Miller, Seward, Cooper & Becker, P.C. by James C. Rabaut and Mark C. Smiley, Detroit, for Glasco Co.

Before HOOD, P.J., and MURPHY and FITZGERALD, JJ.

PER CURIAM.

This appeal involves an indemnity contract whereby defendant and third-party plaintiff, DeMaria Building Company, Inc., seeks to be indemnified by third-party defendant, Glasco Company. The trial court granted summary disposition under MCR 2.116(C)(10) in favor of DeMaria and denied summary disposition for Glasco, who now appeals. We affirm.

Glasco, the subcontractor, had submitted a bid to DeMaria, the construction manager, for the installation of doors and windows in the construction of a Meijer store in Monroe County. In order to submit the bid, Glasco had to fill out and sign a bid form, which set forth the conditions of the contract and general requirements. DeMaria accepted Glasco's bid and both parties entered into a contract drafted by DeMaria. The contract was signed by Glasco's vice president, Steve Hohenskill.

Richard Sherman, a Glasco employee, was injured at the construction site when a glass panel fell on him. Sherman filed a complaint alleging negligence against DeMaria, Meijer, and S.S.O.E., Inc., the architect. DeMaria filed an answer, alleging comparative negligence on the part of Sherman. DeMaria then filed a third-party complaint against Glasco, alleging that Glasco was required to indemnify DeMaria pursuant to the contract, which included the following indemnity provision:

The Contractor [Glasco] shall secure, defend, protect, hold harmless and indemnify the Owner [Meijer], the Construction Manager [DeMaria] and the Architect [S.S.O.E.] and any of their respective agents, servants and employees against any liability, loss, claims, demands, suits, costs, fees and expenses whatsoever arising from bodily injury, sickness, disease, (including death resulting therefrom), of any persons, or the damage or destruction of any property, including loss of use, arising out of or in connection with the performance of any work relating to this contract including extras [sic] work assigned to the Contractor, based upon any act or omission, negligent or otherwise, of (a) the Contractor or any of its agents, employees or servants, (b) any Sub/Subcontractor supplier or materialman of the Contractor, or any agents, employees or servants thereof, (c) any other person or persons. The obligations of indemnification contained herein shall exclude only those matters in which the claim arises out of allegations of the sole negligence of the Owner, the Architect, the Construction Manager or any of their respective agents, servants and employees. The obligations herein shall apply to claims which sound in either tort or contract.

DeMaria and Glasco moved for summary disposition against each other. After conducting a hearing, the trial court found the contract to be unambiguous and ruled that Glasco was required to indemnify DeMaria for any damages assessed against DeMaria in connection with Sherman's injury.

On appeal, Glasco argues that the trial court erred in ruling that Glasco was required to indemnify DeMaria for its own negligence. Specifically, Glasco asserts that the indemnity provision, which requires Glasco to indemnify DeMaria from liability based on the negligence of "any other person or persons," creates an ambiguity with respect to whether the parties intended to provide indemnification to DeMaria for its own negligence. Glasco argues such an ambiguity must be resolved against the indemnitee and the drafter of the contract.

While it is true that indemnity contracts are construed strictly against the party who drafts them and against the indemnitee, it is also true that indemnity contracts should be construed to 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 the intention of the parties, the court must consider the language of the contract as well as the situation of the parties and the circumstances surrounding the contract. Title Guaranty & Surety Co. v. Roehm, 215 Mich. 586, 592, 184 N.W. 414 (1921); Paquin v. Harnischfeger Corp., 113 Mich.App. 43, 50, 317 N.W.2d 279 (1982). Where an indemnity agreement is unclear or ambiguous, the intent of the parties is to be determined by the trier of fact. Chrysler Corp. v. Brencal Contractors, Inc., 146 Mich.App. 766, 771, 381 N.W.2d 814 (1985).

Michigan courts have discarded the additional rule of construction that indemnity contracts will not be construed to provide indemnification for the indemnitee's own negligence unless such an intent is expressed clearly and unequivocally in the contract. Vanden Bosch v. Consumers Power Co., 394 Mich. 428, 230 N.W.2d 271 (1975); Fischbach-Natkin, supra. Instead, broad indemnity language may be interpreted to protect the indemnitee against its own negligence if this intent can be ascertained from "other language in the contract, surrounding circumstances, or from the purpose sought to be accomplished by the parties." Fischbach-Natkin, supra 157 Mich.App. at 452, 403 N.W.2d 569.

In Paquin, the Court used several factors to determine whether the parties intended to protect the indemnitee against its own negligence. Paquin, supra 113 Mich.App. at 52-53, 317 N.W.2d 279. The Court first recognized that an exclusionary clause, which expressly precluded indemnification for injuries caused by the indemnitee's sole negligence, indicated the intent to provide indemnification for all other situations involving the indemnitee's own negligence. Id., 113 Mich.App. at 52, 317 N.W.2d 279. Further, the Court concluded that the situation of the parties and the circumstances surrounding the contract signaled the intent to provide indemnification for the indemnitee's own negligence. This conclusion was based on the evidence that the parties had understood that their employees would be working together in the same area and on the same equipment. There was also evidence showing that the indemnitor was a large company and that the agent who had prepared the bid was familiar with this type of indemnity provision. Id. at 53, 317 N.W.2d 279. The Paquin Court added that the indemnitor was not aided when its agent testified that he did not recall reading the indemnity provision.

In Fischbach-Natkin, the Court applied these same factors to ascertain the parties' intent. Fischbach-Natkin, supra 157 Mich.App. at 453-456, 403 N.W.2d 569. The Court also noted that the indemnitor's president, who had signed the agreement, made no claim that the contract was unconscionable or that the parties had disparate bargaining power. Id. at 454, 403 N.W.2d 569.

In this case, DeMaria claims that it is entitled to be indemnified for liability arising out of its own possible negligence because the contract states that Glasco will indemnify DeMaria for damages caused by the negligence of "any other person or persons." Glasco maintains that the indemnity provision is ambiguous because it requires indemnification for damages caused by the acts of "any other person or persons" without referring to DeMaria by name or title, while the exclusionary clause refers to DeMaria by title. Glasco argues that the use of one term in one portion of a contract and the omission of that term in another related portion of the contract evidences an intent to exclude the term where it does not appear. We find this argument to be unpersuasive and unsupported by authority. Although the indemnity...