RAYMOND D BARKER II V RAYMOND L JABLONSKI
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STATE OF MICHIGAN
COURT OF APPEALS
RAYMOND D. BARKER II,
UNPUBLISHED
January 31, 1997
Plaintiff,
v
No. 181875
Genesee County
LC No. 92-12195-NO
RAYMOND L. JABLONSKI and VIRGINIA
JABLONSKI,
Defendants/Cross-Plaintiffs/
Appellants,
and
JABLON ENTERPRISES, INC.,
Defendant/Cross-Defendant/
Appellee.
Before: Hoekstra, P.J., and Marilyn Kelly and J.B. Sullivan,* JJ.
PER CURIAM.
Defendants/cross-plaintiffs Raymond and Virginia Jablonski (plaintiffs) appeal as of right from a
Genesee Circuit Court judgment for defendant/cross-defendant Jablon Enterprises, Inc. (defendant). In
1992 Raymond Barker filed a claim against both plaintiffs and defendant for injuries he suffered after
falling in a parking lot. A jury trial was held on Barker’s claim and a jury verdict in Barker’s favor
against plaintiffs was entered; the jury returned a verdict of no cause of action against defendant. In
their cross-claim, plaintiffs sought indemnity from defendant under a lease agreement between the
parties, and the trial court, following a bench trial, entered a judgment in defendant’s favor. We reverse.
Plaintiffs first argue that the trial court erred in finding that the parking space in which Barker fell
was not within the leased premises. We disagree. Although the lease facially purported to convey the
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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parking lot in its entirety, the parties’ conduct under the lease is relevant in ascertaining their intent. See
In re Loose, 201 Mich App 361, 366-67; 505 NW2d 922 (1993). Raymond Jablonski’s testimony
demonstrated that the lease’s description of the leased premises was not accurate. Further, evidence
showed that Copeland, a tenant of plaintiffs, was allowed exclusive use of the parking spot that was in
the lot leased to defendant by plaintiffs. Thus, we are not left with a definite and firm conviction that the
trial court erred in finding the parking spot was not part of the premises leased to defendant. Arco
Industries Corp v American Motorists Ins Co, 448 Mich 395, 410; 531 NW2d 168 (1995).
Plaintiffs argue that even if the parking space where Barker fell was not part of the leased
premises, as found by the trial court, the indemnity provision of the lease still applied because the
accident occurred “on or about” the premises. We agree. This Court’s decision in Wagner v Regency
Inn Corp, 186 Mich App 158, 168; 463 NW2d 450 (1990) supports plaintiffs’ position and we find
the analysis contained therein to be applicable to the instant case. Here, because the lease provision
purported to indemnify plaintiffs for any occurrence “on or about” the leased premises, the fact that the
single parking space in which Barker fell was not part of the leased premises does not preclude the
indemnity clause from requiring defendant to indemnify plaintiffs in this instance.
Defendant argues that even if the lease covered the parking spot in question, it does not have a
duty to indemnify because plaintiffs breached the covenant of quiet enjoyment. Even assuming arguendo
that the covenant was breached, the appropriate remedy would be to compensate defendant for its loss
rather than to nullify the other provisions of the lease. See Royal Oak Wholesale Co v Ford, 1 Mich
App 463, 466-67; 136 NW2d 765 (1965).
Defendant further argues that the indemnity clause in the lease between the parties cannot be
construed to indemnify plaintiffs for their own negligence absent unequivocal terms so providing. We
disagree. Michigan courts have discarded this rule of construction. Sherman v DeMaria Bldg Co,
203 Mich App 593, 596-97; 513 NW2d 187 (1994). Broad indemnity language can be interpreted to
protect the indemnitee against his own negligence if this intent can be otherwise ascertained. Id. at 597.
Here, the indemnity clause in question states that “[t]he tenant agrees to indemnify and hold harmless the
Landlord from any liability for damages to any person or property in, on or about said premises from
any cause whatsoever.” We find that use of the term “any” in the indemnity clause evidences an intent
that plaintiffs be indemnified in the broadest range of possibilities. See Skotak v Vic Tanny
International, Inc, 203 Mich App 616, 619; 513 NW2d 428 (1994).
Based upon the foregoing, we conclude that plaintiffs were entitled to summary disposition on
the issue of indemnification. Accordingly, the judgment of the trial court is reversed, and the case is
remanded for entry of an order granting summary disposition to plaintiffs. We do not retain jurisdiction.
/s/ Joel P. Hoekstra
/s/ Marilyn Kelly
/s/ Joseph B. Sullivan
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