Williams v. Litton Systems, Inc., Docket No. 87885
| Decision Date | 22 December 1987 |
| Docket Number | Docket No. 87885 |
| Citation | 416 N.W.2d 704,164 Mich.App. 195 |
| Court | Court of Appeal of Michigan — District of US |
| Parties | Sandra E. WILLIAMS, Administratrix of the Estate of Robert N. Williams, Deceased, Plaintiff, v. Unit Handling Systems Division of LITTON SYSTEMS, INC., a foreign corporation; Diamond Steel Construction Company, a foreign corporation; Giffels Associates, Inc., a Michigan corporation; and Ann Arbor Terminal, Inc., a Michigan corporation, jointly and severally, Defendants. Unit Handling Systems Division of LITTON SYSTEMS, INC., a foreign corporation, Third-Party Plaintiff-Appellee, v. FORD MOTOR COMPANY, a foreign corporation, Third-Party Defendant-Appellant. |
[164 MICHAPP 197] Barbier, Petersmarck, Tolleson, Mead & Paige, P.C. (by George E. Petersmarck and Vincent J. Brennan), Detroit, for defendants.
Kitch, Saurbier, Drutchas, Wagner & Kenney, P.C. (by Richard A. Kitch and Mark D. Willmarth), Detroit, and John M. Thomas, Dearborn, for third-party defendant Ford Motor Co.
Before SULLIVAN, P.J., and MACKENZIE and DANIELS, * JJ.
Third-party defendant Ford Motor Company appeals as on leave granted upon order of the Michigan Supreme Court from a denial of summary disposition by the Wayne Circuit Court, 422 Mich. 976, 374 N.W.2d 260. We reverse.
This case arises from the alleged wrongful death of Ford employee Robert N. Williams on January 26, 1979. On that date, Williams, during his employment, entered the third level of a high density robotic storage area to investigate a malfunction in the storage system, when he was struck from behind and crushed by a transfer vehicle. A complaint on behalf of his estate was filed against, among others, defendant-third party plaintiff, Unit Handling Systems Division of Litton Systems, Inc. The complaint alleged that Litton was negligent in designing, manufacturing and supplying the storage system and in failing to warn the decedent of foreseeable dangers in working within the storage area. The complaint also contained various allegations of breach of express and implied warranties and strict liability against Litton.
[164 MICHAPP 198] Prior to trial, Litton filed a third-party complaint against Ford. Litton sought indemnification from Ford in the event Litton was found liable to the decedent's estate. Trial was then conducted on the primary action and, after Litton was found to be liable for negligence and breach of implied warranty, a $10,000,000 judgment was awarded against Litton. The parties subsequently entered into a settlement agreement in which they stipulated that Litton did not admit negligence, breach of warranty or the propriety of the jury verdict or the judgment.
After the circuit judge certified the judgment agreed upon by the parties, Litton filed an amended third-party complaint more specifically seeking indemnification against Ford under the theories of implied contractual indemnity and common-law indemnity. Litton alleged that Ford breached its contractual agreement by failing to submit the decedent for training programs provided by Litton and by allowing the decedent to enter the storage system when the lockout system was off.
On July 14, 1984, Ford moved for summary judgment on the basis that Litton failed to state a claim upon which relief could be granted. Upon the trial court's denial of the motion, this appeal ensued.
Michigan jurisprudence recognizes three sources of a right to indemnity: the common law, an implied contract and an express contract. Skinner v. D-M-E Corp., 124 Mich.App. 580, 584, 335 N.W.2d 90 (1983). This case involves the first two theories.
Ford asserts on appeal, as it did below, that it is entitled to summary judgment because the principal complaint alleged only active negligence against Litton. Indeed, it has been held on numerous occasions that a party may not seek indemnity [164 MICHAPP 199] under common law where the primary complaint alleges active, rather than passive liability. See, e.g., Feaster v. Hous, 137 Mich.App. 783, 787-788, 359 N.W.2d 219 (1984). As the primary complaint here alleged only active negligence on the part of Litton, Litton was not free to seek common-law indemnity against Ford. That part of the third-party complaint should therefore have been dismissed. Cutter v. Massey-Ferguson, Inc., 114 Mich.App. 28, 32, 318 N.W.2d 554 (1982).
In addition to common-law indemnity, Litton sought recovery under the theory of implied contractual indemnity. It has been said that, to sustain such a cause of action against an employer, the manufacturer must prove "a specific undertaking by the employer to perform some act or service for the manufacturer and an attempt by the employee of the employer to hold the manufacturer liable for the failure to perform the act which the employer had obligated itself to do." Grayson v. Chambersburg Engineering Co., 139 Mich.App. 456, 461, 362 N.W.2d 751 (1984). However, it is likewise the case that indemnification under this theory is, as under common law, not available to a party who is proven to be actively negligent in causing the plaintiff's injury. Id., p. 462, 362 N.W.2d 751; Skinner, supra, 124 Mich.App. at p. 585, 335 N.W.2d 90. Accordingly, where the primary complaint is void of allegations of vicarious or derivative liability against the third-party plaintiff, implied contractual indemnity is also precluded. Hadley v. Trio Tool Co., 143 Mich.App. 319, 331, 372 N.W.2d 537 (1985). 1
[164 MICHAPP 200] Under this authority, our analysis might appear to end here. However, the trial court denied summary judgment and, citing the case of Hill v. Sullivan Equipment Co., 86 Mich.App. 693, 273 N.W.2d 527 (1978), held that Litton was entitled to continue discovery. In Hill, the manufacturer and designer of a screw conveyor was sued for injuries sustained by an individual whose arm was caught in the conveyor. The manufacturer filed a third-party complaint for indemnification against the individual's employer, alleging that the employer rejected the original design, which included a protective cover, and insisted on installation of the machine without the cover. Given these allegations, the Hill majority concluded that summary judgment in favor of the employer should have been denied.
Although Hill has been criticized as erroneously holding that freedom from active fault is not a prerequisite for a successful claim for implied contractual indemnity, 2 it was recently cited with approval for the alternative proposition that where, in the unique situation that the allegations of the third-party complaint, if proven, establish that the sole cause of plaintiff's injury was the negligence of the third-party defendant, then the third-party plaintiff should be given an opportunity to prove that it was free of active fault. Kirin v. Riise Engineering Co. Inc., 148 Mich.App. 278, 284, 384 N.W.2d 149 (1986), lv. den. 426 Mich. 867 (1986). See also Reed v. St. Clair Rubber Co., 118 Mich.App. 1, 10, 324 N.W.2d 512 (1982).
Litton, citing Hill and Kirin, contends that it similarly should be given the opportunity to prove, as alleged, that it was without active negligence [164 MICHAPP 201] and that the decedent's injuries were caused solely and proximately by the negligence of Ford.
Unfortunately, the law of indemnification is highly complicated and hardly a model of clarity. Nonetheless, at the expense of adding to the confusion, we are constrained to conclude that Hill and Kirin were wrongly decided and we decline to follow this line of authority.
As stated earlier in this opinion, the primary plaintiff alleged that Litton was negligent and breached its warranty in designing, manufacturing, and...
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