ALLEN LANGFORD V JENKINS CONSTRUCTION INC
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STATE OF MICHIGAN
COURT OF APPEALS
ALLEN LANGFORD, as Next Friend for
PATRINA LANGFORD, a Minor,
UNPUBLISHED
June 23, 2009
Plaintiff,
v
JENKINS CONSTRUCTION, INC., TMP
ASSOCIATES, GEORGE COHEN, DETROIT
PUBLIC SCHOOLS, CASS TECHNICAL HIGH
SCHOOL, DETROIT PUBLIC SCHOOLS
PROGRAM MANAGER, L.L.C, QUICK
GREEN, B & L LANDSCAPING, and BECKETT
& RAEDER, INC.,
No. 285915
Wayne Circuit Court
LC No. 06-604007-NO
Defendants
and
ABC PAVING COMPANY, INC.,
Defendant/Third-Party PlaintiffAppellant/Cross-Appellee,
and
INDUSTRIAL FENCE & LANDSCAPE,
Third-Party DefendantsAppellee/Cross-Appellant
.
Before: Fitzgerald, P.J., and Talbot and Shapiro, JJ.
SHAPIRO, J. (concurring).
I concur in the reversal of summary disposition and in the order of remand. I write to
clarify what matters I believe must be resolved by the finder of fact on remand. The lead opinion
suggests that ABC need merely show that that “Quick Green did perform acts or services in
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furtherance of the sod installation” and that a satisfactory showing on that narrow issue will be
“sufficient for implementation of the indemnification provision.” I believe that a broader
question must be answered by the fact-finder on remand, namely the issue actually posed by the
language of the contract, i.e., whether the cause of the underlying plaintiff’s injury “[arose] out
of any of [Industrial’s] work, materials, supplies, subcontracts, employees or any other source.”
I agree with the majority’s recitation of the law governing the interpretation of
indemnification agreements and that “the extent of the duty must be determined from the
language of the contract.” Grand Trunk Western R, Inc v Auto Warehousing Co, 262 Mich App
345, 353; 686 NW2d 756 (2004). Given the language of this indemnification agreement, it can
be triggered in the absence of any negligence by Industrial or any subcontractor it hires.
However, the agreement is not triggered unless the underlying claim of injury arose out of the
scope of work Industrial was hired to do, which the contract sets forth as: “furnish and install sod
per plans and specifications”. I find no determination by the trial court that the injury arose out
of the furnishing or installation of the sod. Further, it is difficult to see how this can be
determined without the taking of evidence by a fact-finder given that the record contains
evidence that the injury was caused by degeneration of the field resulting from the type of topsoil
used by ABC before the sod was placed and not as a result of the furnishing or installation of the
sod.
If, in fact, the injury arose out of the “furnish[ing] or install[ation of] the sod per plans
and specifications”, then regardless of whether it was done negligently and regardless whether it
was done by Industrial, its sub-contractor Quick Green or by Quick Green’s sub-contractor B &
L Landscaping, Industrial must indemnify ABC. However, if the injury did not arise out of the
furnishing or the installation of the sod then the indemnification clause is not triggered.
Accordingly, I would direct that the finder of fact make that determination upon remand.
/s/ Douglas B. Shapiro
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