CYNTHIA BIANGA-GULICK V PIPE SYSTEMS INC
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STATE OF MICHIGAN
COURT OF APPEALS
CYNTHIA BIANGA-GULICK, Personal
Representative of the Estate of GERALD BIANGA,
UNPUBLISHED
December 30, 1997
Plaintiff,
v
No. 198818
Oakland Circuit Court
LC No. 94-487587 NO
PIPE SYSTEMS, INC.,
Defendant-Cross
Plaintiff-Appellant,
and
DELTA CONTRACTORS, LTD.,
Defendant-Cross
Defendant-Appellee,
and
C. N. FLAGG & COMPANY, INC., a/k/a
C. N. FLAGG POWER, INC., and JOY
ENVIRONMENTAL TECHNOLOGIES,
INC.,
Defendants.
Before: Griffin, P.J., and Markman and Whitbeck, JJ.
MEMORANDUM.
Cross-plaintiff Pipe Systems, Inc. (Pipe Systems), appeals by right the order of the Oakland
Circuit Court, denying its motion for summary disposition on its cross-complaint for indemnification
against cross-defendant Delta C
ontractors, Ltd (Delta). The trial court held that an indemnification
agreement is unenforceable because the activity involved was “inherently dangerous.” We decide this
appeal without oral argument pursuant to MCR 7.214(E).
-1
Under a contract with the United States Air Force for demolition of a structure at an air base in
Ohio, Pipe Systems, as general contractor, subcontracted the entire work to Delta. Both parties are
Michigan corporations. The contract specified that it would be governed by the law of Michigan. This
choice of law contractual provision, given such a substantial relationship between the parties and the
State of Michigan, and the lack of any apparent strong policy interest of Ohio in having its law apply, is
valid. Chrysler Corp v Skyline Industrial Services, Inc, 448 Mich 113, 126, 132-133; 528 NW2d
698 (1995).
Gerald Bianga, an employee of another subcontractor used by Delta, died as the result of a fall
in the course of the work. After part of the super-structure had been removed, decedent and others
next resolved to remove a metal stairway and attached catwalk. They attached cables from the
stairway to an overhead crane, then removed or cut the bolts holding the stairway to the main part of the
structure. The workers failed to use safety lines and, when after the last bolt was cut, the stairway
twisted on the supporting cables and decedent fell from the stairway to the ground, sustaining fatal
injuries.
The trial court agreed with Delta that, under Michigan law, indemnification for inherently
dangerous activity is not permitted. This is incorrect. The correct rule is that because inherently
dangerous activity involves “active negligence” it precludes common law or implied contractual
indemnification. Oberle v Hawthorne Metal Products Co, 192 Mich App 265, 270-271; 480
NW2d 330 (1991). The inherently dangerous activity doctrine precludes delegating liability, see
McDonough v General Motors Corp, 388 Mich 430, 437; 201 NW2d 609 (1972) (Black and
Swainson, JJ.). The doctrine does not preclude express contractual indemnification for the liability
which might be thus established. Accordingly, if an express contractual provision provides for
indemnification for injuries caused by an inherently dangerous activity, such indemnification may be
awarded. See Oberle, supra at 267, 271-272 (remanding for trial court to determine whether express
contractual provision provided indemnification for injury found to have occurred in an inherently
dangerous activity.)1
Here, the contract in question requires Delta to indemnify Pipe Systems for “any and all . . .
injuries to persons including death.” Thus, the indemnification sought by the cross-complaint is well
within the scope of the indemnification clause. As the contract includes an express provision for
indemnification that covers the tragic incident underlying this case, Pipe Systems’ motion for summary
disposition should have been granted.
Reversed and remanded to the Oakland Circuit Court for further proceedings consistent with
this opinion. Cross-plaintiff Pipe Systems, being the prevailing party, may tax costs pursuant to MCR
7.219. We do not retain jurisdiction.
/s/ Richard Allen Griffin
/s/ Stephen J. Markman
/s/ William C. Whitbeck
1
Unlike this case, McDonough involved a suit by a decedent’s survivor against General Motors,
essentially one of its plants that it subcontracted to another party. Id. at 436 (Black and Swainson, JJ.)
McDonough holds that a general contractor cannot escape initial liability to a person injured from an
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inherently dangerous activity, not that the contractor is unable to obtain indemnification from another
party. In practical terms, this could, for example, require a general contractor to bear a loss where the
subcontractor became insolvent.
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