Staffney v. Fireman's Fund Ins. Co.
| Decision Date | 20 August 1979 |
| Docket Number | Docket Nos. 78-1749 |
| Citation | 284 N.W.2d 277,91 Mich.App. 745 |
| Parties | William T. STAFFNEY and Williatte Staffney, Plaintiffs-Appellants, v. FIREMAN'S FUND INSURANCE COMPANY, a California Corporation, and New Hampshire Indemnity Company, Inc., a New Hampshire Corporation, Defendants-Appellees, and Michigan Millers Mutual Insurance Company, a Michigan Corporation, and Association of Mill and Elevator Mutual Insurance Companies, a/k/a "the Mill Mutuals", Defendants. Larry A. FESS and Karen L. Fess, Plaintiffs-Appellants, v. FIREMAN'S FUND INSURANCE COMPANY, a California Corporation, and New Hampshire Indemnity Company, Inc., a New Hampshire Corporation, Defendants-Appellees, and Michigan Millers Mutual Insurance Company, a Michigan Corporation, and Association of Mill and Elevator Mutual Insurance Companies, a/k/a "the Mill Mutuals", Defendants. Rae STORM, Administratrix of the Estate of Jack R. Storm, Deceased, Plaintiff-Appellant, v. FIREMAN'S FUND INSURANCE COMPANY, a California Corporation, and New Hampshire Indemnity Company, Inc., a New Hampshire Corporation, Defendants-Appellees, and Michigan Millers Mutual Insurance Company, a Michigan Corporation, and Association of Mill and Elevator Mutual Insurance Companies, a/k/a "the Mill Mutuals", Defendants. Margaret Joan HORNEY, Administratrix of the Estate of Glenn R. Horney, Deceased, Plaintiff-Appellant, v. FIREMAN'S FUND INSURANCE COMPANY, a California Corporation, and New Hampshire Indemnity Company, Inc., a New Hampshire Corporation, Defendants-Appellees, and Michigan Millers Mutual Insurance Company, a Michigan Corporation, and Association of Mill and Elevator Mutual Insurance Companies, a/k/a "the Mill Mutuals", Defendants. Susanne M. SCHUMANN, Administratrix of the Estate of Clifford W. Schumann, Deceased, Plaintiff-Appellant, v. FIREMAN'S FUND INSURANCE COMPANY, a California Corporation, and New Hampshire Indemnity Company, Inc., a New Hampshire Corporation, Defendants-Appellees, and Michigan Millers Mutual Insurance Company, a Michigan Corporation, and Association of Mill and |
| Court | Court of Appeal of Michigan — District of US |
Cicinelli, Mossner, Majoros & Alexander, P. C., by Eugene D. Mossner, Saginaw, for plaintiffs-appellants.
Jack D. Rowe, John A. Kruse, Detroit, for Fireman's Fund.
Robert G. Chaklos, Saginaw, for New Hampshire Indemnity Co.
John W. McGraw, Saginaw, for Michigan Millers Mut. Ins. Co.
Before RILEY, P. J., and V. J. BRENNAN and CROCKETT, * JJ.
On January 19, 1977, plaintiffs William and Williatte Staffney filed a complaint 1 alleging that William had been injured on January 22, 1976, due to an explosion at the Farm Bureau Services (hereinafter Farm Bureau) grain elevator exchange located in Zilwaukee, Michigan. The explosion resulted when sparks from cutting and welding operations ignited some of the accumulated grain dust in the plant.
The complaint alleged that defendant Fireman's Fund was the worker's compensation carrier for Farm Bureau as was defendant New Hampshire and that defendant Michigan Millers was responsible for the fire insurance on the grain elevator and defendant Mill Mutuals was the reinsurer of the fire insurance contract between Michigan Millers and Farm Bureau. Plaintiffs further alleged that all four defendants either had a duty to inspect the grain elevator for potential fire or explosion hazards and/or assumed that duty by voluntarily undertaking said safety inspections and that defendants either knew or should have known of the dangerous conditions in the elevator which led to the explosion, but failed to adequately warn both Farm Bureau and its employees of the hazards.
Fireman's Fund moved for summary judgment pursuant to GCR 1963, 117.2(1), on the grounds that plaintiffs had failed to state a cause of action because the suit was barred by recent amendments to the Worker's Disability Compensation Act which grant immunity to compensation carriers for liability arising out of the execution of safety inspections. Michigan Millers and Mill Mutuals similarly moved for summary judgment under the same court rule on the basis that plaintiffs had not stated a legal cause of action against them. Fireman's Fund's motion was granted, 2 and pursuant to several amendments by plaintiffs to their complaint, the court also granted summary judgment in favor of Michigan Millers and Mill Mutuals.
Plaintiffs appeal by right, and first assail the lower court's allowance of summary judgment in favor of defendant fire insurers. We review a grant of summary judgment due to the failure to state a claim upon which relief can be granted, GCR 1963, 117.2(1), against the criteria reiterated in Sullivan v. Thomas Organization, P. C., 88 Mich.App. 77, 82, 276 N.W.2d 522, 524-25 (1979):
"
Plaintiffs' cause of action is premised upon 2 Restatement Torts, 2d § 324A, p. 142, which states that:
Plaintiffs' suit encompasses all three subparagraphs of the rule. As previously stated, their complaint, as amended, maintains that defendants had a duty and/or voluntarily assumed a duty, when they undertook to inspect the grain elevator for fire and explosion hazards, to do so with reasonable care. The inspections by Michigan Millers were set forth in great detail, as was the fact that Mill Mutuals received copies of all the inspection reports and further made inspections of its own.
The complaint alleges that before the date of the explosion, defendants knew, or in the exercise of reasonable care should have known, of the extremely dusty conditions within the grain elevator, knew that the dust collection and/ or removal system was inadequate, and that this presented an extremely hazardous and dangerous potential for explosion and fire and that, pursuant thereto, defendants were under a duty to warn Farm Bureau and its employees of the dangerous conditions, and recommend safety procedures so that adequate steps could be taken to eliminate those risks. The complaint further alleges that having voluntarily undertaken to give warnings to the employees by means of placards, signs, reports, posters and verbal commands, the defendants, in fact, failed to adequately and fully warn the employees of the extreme hazards existing at the plant.
Paragraph 26 of plaintiffs' amended complaint closely parallels the prerequisites to liability as set forth in the Restatement, Supra. It alleges that by their voluntary undertaking, defendants increased the risk of injury by instituting and/or requiring...
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