AJAX PAVING INDUSTRIES LLC V VANOPDENBOSCH CONSTRUCTION CO
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STATE OF MICHIGAN
COURT OF APPEALS
AJAX PAVING INDUSTRIES, LLC,
UNPUBLISHED
July 1, 2010
Plaintiff-Appellee/Cross-Appellant,
v
VANOPDENBOSCH CONSTRUCTION CO.,
No. 288452
Wayne Circuit Court
LC No. 2007-713607-CK
Defendant-Appellant/CrossAppellee,
and
TENMILE CREEK EXCAVATING, LLC,
Defendant.
Before: SERVITTO, P.J., and BANDSTRA and FORT HOOD, JJ.
PER CURIAM.
Defendant, VanOpdenbosch Construction Co., appeals as of right the trial court’s order
granting summary disposition in plaintiff’s favor. Plaintiff cross-appeals from the trial court’s
order denying plaintiff’s motion for entry of judgment regarding costs and fees. Because the trial
court did not err in granting summary disposition in plaintiff’s favor based upon indemnity, but
erred in its determination that costs and fees recoverable pursuant to the parties’ indemnity
contract were limited to those incurred after the date VanOpdenbosch Construction Co. was
notified of the underlying lawsuit, we remand to the trial court for a determination as to the
reasonableness of plaintiff’s claimed attorney fees and costs, and entry of a judgment consistent
with those findings, and affirm in all other respects.
Plaintiff filed a complaint against Tenmile Creek Excavating (Tenmile Creek) and
VanOpdenbosch Construction Co. (VanOpdenbosch) on May 21, 2007. According to plaintiff,
the Michigan Department of Transportation (MDOT) hired plaintiff as a contractor in
conjunction with roadway resurfacing in the city of Detroit, and plaintiff entered into separate
subcontracts with both Tenmile Creek and VanOpdenbosch to perform specific work on the
resurfacing project. The subcontracts each contained an indemnity clause whereby Tenmile
Creek and VanOpdenbosch agreed to indemnify plaintiff and to hold it harmless for any actions
associated with or arising out of their respective work. The subcontracts also required Tenmile
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Creek and VanOpdenbosch to obtain, at their expense, workers’ compensation, general liability
insurance, and auto insurance, naming plaintiff as an additional insured party on the policies.
Plaintiff alleged that it was named as a defendant in a lawsuit that sought to impose
liability on plaintiff relating to the work performed by Tenmile Creek and VanOpdenbosch,
pursuant to the parties’ subcontracts. Specifically, an automobile driver was allegedly injured
when the car in which she was a passenger struck a protruding manhole cover located on the
street where defendants had performed resurfacing work, pursuant to their contracts with
plaintiff. The injured passenger brought suit against plaintiff and Wayne County, and the matter
ultimately arbitrated for an award in the injured party’s favor of $40,000.00. Plaintiff was
thereafter named as a defendant in a lawsuit initiated by Wayne County, which sought indemnity
from plaintiff concerning the prior lawsuit and, additionally, set forth a claim for trespass.
Wayne County settled its lawsuit against plaintiff for a payment of $5,000. According to
plaintiff, both defendants refused to defend or hold plaintiff harmless from the claims of the
injured party and Wayne County, thereby beaching the parties’ subcontracts. Plaintiff also
alleged that both defendants breached the parties’ subcontracts by failing to secure the required
insurance coverage.
Plaintiff moved for summary disposition pursuant to MCR 2.116(C)(10) asserting that the
lawsuits at issue were expressly covered by the parties’ contracts, and that there was no material
question of fact that defendants breached the parties’ agreements by failing to indemnify plaintiff
in the lawsuits and to obtain primary, rather than excess, general liability insurance coverage.
The trial court granted plaintiff’s motions for summary disposition.
Thereafter, plaintiff moved for entry of judgment contending that because its motion for
summary disposition was granted, it was entitled to reimbursement of the costs of settling the
underlying two lawsuits, as well as its reasonable attorney fees and costs associated with
defending in the two lawsuits. The trial court entered an order for partial summary judgment that
provided each defendant would be liable for one half of the total amount plaintiff paid in the
underlying lawsuit ($40,500.00), and ordered an evidentiary hearing to address the issue of costs
and attorney fees.1
The trial court ultimately ruled that plaintiff was limited in its recovery from
VanOpdenbosch to only those attorney fees and costs incurred after the date it provided
VanOpdenbosch with notice of the underlying proceedings--April 4, 2007. The trial court
determined that only $1,417.47 in attorney fees were incurred after that date, but also noted that
plaintiff had already received $10,500 in fees and costs from Tenmile Creek. As a result, the
trial court ruled that plaintiff had been more than adequately compensated for attorney fees and
costs and denied plaintiff’s motion. This appeal followed.
A motion for summary disposition under subrule (C)(10) is properly granted if no factual
dispute exists, thus entitling the moving party to judgment as a matter of law. Rice v Auto Club
1
The trial court entered a stipulated order for dismissal of Tenmile Creek prior to the evidentiary
hearing. Tenmile Creek therefore did not participate in the hearing.
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Ins Ass'n, 252 Mich App 25, 31; 651 NW2d 188 (2002). In deciding a motion brought under
subrule (C)(10), a court considers all of the evidence, affidavits, pleadings, and admissions in the
light most favorable to the nonmoving party. Id. at 30-31. We also review de novo issues of
contract interpretation. Rory v Continental Ins Co, 473 Mich 457, 464; 703 NW2d 23 (2005).
On appeal, defendant2 first contends that the trial court erred in ruling that the injured
passenger’s claims were covered by the parties’ subcontract when there was no indication that
the work performed by defendant caused the manhole cover to protrude above the milled road
surface. We disagree.
A contract must be interpreted according to its plain and ordinary meaning. St Paul Fire
& Marine Ins Co v Ingall, 228 Mich App 101, 107; 577 NW2d 188 (1998). Where the language
of the contract is clear and unambiguous, interpretation is limited to the actual words used, and
an unambiguous contract must be enforced according to its terms. Burkhardt v Bailey, 260 Mich
App 636, 656; 680 NW2d 453 (2004). This Court applies to indemnity contracts the same
contract construction principles that govern any other type of contract. Zahn v Kroger Co of
Michigan, 483 Mich 34, 40; 764 NW2d 207 (2009). On appeal, this Court interprets an
indemnification provision in a manner that will serve to provide a reasonable meaning to all of
the terms contained therein. MSI Construction Mgrs, Inc v Corvo Iron Works, Inc, 208 Mich
App 340, 343; 527 NW2d 79 (1995). In essence, an indemnification provision is to be construed
to effectuate the intentions of the parties to the contract, which is determined through review of
the contract language, the parties' situation and circumstances involved in the initiation of the
contract. Triple E Produce Corp v Mastronardi Produce, Ltd, 209 Mich App 165, 172; 530
NW2d 772 (1995).
Plaintiff and defendant’s contract contained the following indemnity provision:
Subcontractor agrees to indemnify Ajax and MDOT and to hold each of them
forever harmless from and against all suits, actions, legal or administrative
proceedings, claims, demands, damages, judgments, liabilities, interest, attorney’s
fees, costs and expenses of whatsoever kind or nature whether arising before or
after completion of Subcontractor’s work and in any manner directly or indirectly
caused, occasioned or contributed to, or claimed to be caused, occasioned or
contributed to, by any act, omission, fault or breach of Subcontractor or of anyone
acting under its direction, control, or on its behalf in connection with or incidental
to the work of Subcontractor and regardless whether directly or indirectly caused,
occasioned or contributed to, or claimed to be caused, occasioned or contributed
to in part by a party indemnified hereunder or by anyone acting under their
direction, control, or on their behalf . . .
The above language is broad and provides for indemnity under not only actions directly or
indirectly “caused, occasioned, or contributed to” by an act, omission or fault of defendant, but
2
Because Tenmile Creek is not a party to this appeal, “defendant” shall hereafter refer to
VanOpdenbosch only.
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also those that are “claimed to be directly or indirectly caused, occasioned, or contributed to”
(emphasis added) by an act, omission or fault of defendant.
Apparently, defendant is of the position that in the underlying lawsuit there must have
been an allegation by the plaintiff that defendant caused or contributed to the accident in order
for the indemnity provision to be applicable. However, there is no requirement in the above
provision that it must be the party initiating an action or obtaining damages that must claim that
an incident was directly or indirectly caused or contributed to by defendant. Instead, the
language provides only that a claim must be made--without specifying who must make the claim
or, more importantly, that the claim even need be proven.
As admitted by defendant, the scope of its work under the subcontract included adjusting
the manhole cover. Though it is unclear what “adjustments” were made, the adjustments were
alleged to have been made a short time before the accident. The injured party alleged, in her
arbitration summary, that an “Ajax paving subcontractor” adjusted the manhole cover and that
the cover protruded above the roadway, causing the accident that led to her injuries. The fact
that defendant made some adjustment and that the accident in the underlying lawsuit was caused
by the protruding manhole cover, it could be asserted that the lawsuit was “in any manner
directly or indirectly caused, occasioned or contributed to, or claimed to be caused, occasioned
or contributed to, by any act, omission, fault or breach of Subcontractor [VanOpdenbosch].”
Thus, the expansive and unambiguous indemnity provision was triggered, and the trial court did
not err in determining that the injured passenger’s claim was covered by the parties’ subcontract.
Defendant next contends that the trial court erred in ruling that the claims of Wayne
County fell within the parties’ subcontract when there was no evidence that these claims were
caused by any action or omission of defendant in connection with its structural work. Again, we
disagree.
Wayne County’s complaint against plaintiff contained an allegation that “Wayne County
is entitled to common-law indemnity from Ajax Paving where the evidence is undisputed that
Ajax Paving and/or its subcontractors caused the condition that Ms. Anderson claims caused her
injuries, and Wayne County had no involvement in creating the condition.” Because Wayne
County’s complaint specifically alleged that plaintiff and/or its subcontractors (including
VanOpdenbosch) caused the road condition leading to the asserted injuries, the indemnity clause
in plaintiff and defendant’s agreement is applicable.
As defendant points out, Wayne County’s complaint against plaintiff included a claim of
trespass. This does not, however, render the indemnity provision at issue inapplicable. As
previously indicated, Wayne County and plaintiff settled their dispute by agreeing to a $5,000
payment from plaintiff. This settled all of Wayne County’s and plaintiff’s claims with no
indication whether the payment was intended to compensate Wayne County for only the trespass
claim, only the indemnity claim, or both equally. Nevertheless, Wayne County’s complaint for
trespass specifically encompasses the actions of plaintiff or its subcontractors in performing the
roadwork. Wayne County alleged that plaintiff proceeded with roadwork without its consent,
but also alleged that plaintiff removed the asphalt around the manhole cover, and that plaintiff
admitted that it “or its subcontractors” were at fault in creating the condition causing the
accident. Because defendant admittedly entered onto the roadway and performed work there,
and because the allegations of trespass include plaintiff or its subcontractors creating a condition
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that caused the accident, the trespass cause of action could be construed as pertaining to
defendant, and the indemnity provision would still apply.
Defendant’s final argument on appeal is that the trial court erred in its determination that
defendant breached its contractual duty to obtain insurance when it did, in fact, obtain insurance
coverage in favor of plaintiff on an excess basis, and where the contract did not specify that
insurance coverage was to be on a primary basis. Because we have determined that summary
disposition was appropriate in plaintiff’s favor based upon the indemnity provision, we need not
address this insurance issue. As indicated by plaintiff, the insurance issue “provides an alternate
basis upon which to premise the grant of partial summary disposition in favor of Ajax with
respect to the $22,500 amount (after set-off) that it paid to settle the underlying actions.” An
appropriate judgment having been entered requiring defendant to pay one-half of the amount
plaintiff paid to the injured party in the underlying lawsuit, even if we were to reverse the trial
court on its determination of the insurance issue, plaintiff would not be entitled to any relief
additional to that already received pursuant to the indemnity provision.
Plaintiff’s sole issue on cross-appeal concerns the trial court’s determination that
defendant’s obligation to reimburse plaintiff for its fees and costs incurred in defending the
underlying actions was limited to those incurred after the date plaintiff notified defendant of the
actions. According to plaintiff, the parties’ contract expressly entitled plaintiff to recover all
costs and attorney fees, without limitation, and in holding otherwise, the trial court did not read
and apply the contract as specifically written. Defendant contends, however, that plaintiff was
not made aware of the lawsuits until 18 months after their initiation. According to defendant, if
it breached the parties’ indemnity contract, then, the breach could only have occurred after notice
was given of the lawsuit and plaintiff’s damages for the breach must be, as the trial court
correctly determined, limited to those that arose naturally from the breach (i.e., those that were
incurred after the breach).
As previously indicated, the parties’ contract required defendant to:
indemnify Ajax and MDOT and to hold each of them forever harmless from and
against all suits, actions, legal or administrative proceedings, claims, demands,
damages, judgments, liabilities, interest, attorney’s fees, costs and expenses of
whatsoever kind or nature whether arising before or after completion of
Subcontractor’s work and in any manner directly or indirectly caused, occasioned
or contributed to, or claimed to be caused, occasioned or contributed to, by any
act, omission, fault or breach of Subcontractor . . .
Plaintiff asserted that defendant breached this contractual provision by failing to indemnify it
concerning the underlying lawsuit. It is undisputed that the underlying action was initiated on
October 12, 2005. It is also undisputed that neither defendant nor its insurer was advised of the
lawsuit until April 4, 2007. Notably, however, there is no contractual provision in this matter
requiring that defendant be put on notice of an underlying lawsuit or that a tender of defense is
necessary for the indemnification provision to apply. And, as previously stated, a contract must
be interpreted according to its plain and ordinary meaning. When the contractual language is
clear and unambiguous, interpretation is limited to the actual words used and the contract is
enforced according to its unambiguous terms. St Paul Fire & Marine Ins Co v Ingall, 228 Mich
App at 107; Burkhardt v Bailey, 260 Mich App at 656. Because the contract itself contains no
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notice or tender of defense requirement and expressly provides for the recovery of all fees and
costs associated with defending the underlying litigation, without limitation, plaintiff is entitled
to recover the entirety of those fees and costs.
In support of its position otherwise, defendant asserts that the duties to defend and to
indemnify in the subcontract are coincident. However, the parties’ contract contains no “duty to
defend” provision. In addition, the two concepts are not interdependent; they are distinctly
different. “Defend” means to “deny, contest, or oppose an allegation or claim.” Black’s Law
Dictionary (7th ed). “Indemnity,” however, is defined as, “a duty to make good any loss,
damage, or liability incurred by another. (Black’s Law Dictionary (7th ed). As one cannot
oppose an allegation or claim unless he or she is aware of the same, it could be reasonably
argued that one who desires to trigger a contractual duty to defend must necessarily tender notice
of the litigation to the defender. The same does not hold true for indemnification, however, as
indemnity contemplates reimbursement for injuries/losses that have already been incurred.
Defendant’s reliance on certain authority suggesting that fees and costs subject to
reimbursement are limited to those incurred only after a tender of a defense, is misplaced, as the
cited cases address contracts that expressly required both a duty to indemnify and a duty to
defend. See, e.g., Hayes v General Motors Corp, 106 Mich App 188; 308 NW2d 452 (1981);
Grand Trunk Western R.R., Inc v Auto Warehousing Co, 262 Mich App 345; 686 NW2d 756
(2004). Plaintiff’s reliance on Transportation Dept v Christensen, 229 Mich App 417; 581
NW2d 807 (1998) is also misplaced as that case is factually distinguishable from the matter at
hand. Most notably, in Transportation Dept v Christensen, a panel of this Court found the
existence of an implied contract for indemnity, whereas, in the instant matter there is a specific,
unambiguous contract for indemnification that must be enforced as written. Additionally,
Christensen did not address costs and fees recoverable under an indemnification contract.
Instead, it addressed the indemnification of a settlement. Finally, while Christensen found that
there was no requirement that a defense be tendered to plaintiff due to a direct conflict of legal
interests between the parties, it did not rule or announce that a tender of defense is required in all
indemnification matters where a conflict of interest is not present. The lack of notification in this
matter did not preclude a finding that defendant was liable under the indemnification provision
for the monies paid by plaintiff to those involved in the underlying lawsuits, and it does not
preclude a finding that defendant is liable for the attorney fees and costs associated with
defending the underlying action.
Having determined that plaintiff is not limited in its recovery of fees and costs to only
those incurred after it notified defendant of the underlying litigation, we turn to the amount of
fees and costs that should be awarded. At a hearing on plaintiff’s motion for entry of a judgment
concerning costs and attorney fees, plaintiff submitted that the total costs and fees incurred in the
defense of the underlying action was $25,446.00. Plaintiff also acknowledged that it had already
received $10,500.00 of those fees and costs from defendant Tenmile and later indicated that due
to some erroneous calculations, and some agreements with defendant, it was actually only
seeking to recover $11,627.00 from defendant as reimbursement for the remaining fees and
costs. While defendant challenged the reasonableness of some of plaintiff’s fees, the trial court
made no ruling on these challenges. Remand is therefore necessary for the trial court to consider
and rule on any challenges to the disputed fees and costs.
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Remanded for a determination of plaintiff’s claimed attorney fees and costs, and for entry
of a judgment consistent with the trial court’s findings. This matter is affirmed in all other
respects. Defendant, being the prevailing party, may tax costs pursuant to MCR 7.219. We do
not retain jurisdiction.
/s/ Deborah A. Servitto
/s/ Richard A. Bandstra
/s/ Karen M. Fort Hood
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