ROSE MISCUK V HORTON AUTOMATICS INC
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STATE OF MICHIGAN
COURT OF APPEALS
ROSE MISCUK,
UNPUBLISHED
January 16, 1998
Plaintiff-Appellant,
v
No. 198098
Wayne Circuit Court
LC No. 90-025820-NI
HORTON AUTOMATICS, INC., d/b/a THE
DALLAS CORPORATION, INC., and MARY
RORHOFF, d/b/a ABLE-I DOOR SYSTEMS,
Defendants,
and
NORTHWEST AIRLINES, INC.,
Defendant-Appellee.
Before: Michael J. Kelly, P.J., and Cavanagh and N.J. Lambros*, JJ.
PER CURIAM.
Plaintiff appeals as of right from an order granting a motion for summary disposition for
defendant Northwest Airlines, Inc. (hereinafter NWA), in this premises liability action. We reverse.
Plaintiff filed suit for injuries sustained entering an allegedly defective automatic revolving door at
Detroit Metropolitan Airport, claiming, inter alia, that NWA had breached its duty to exercise
reasonable care for the protection of its invitees. The trial court granted NWA’s motion for summary
disposition on the basis of a prior release, entered into between plaintiff, defendant Rohroff, d/b/a AbleI Door Systems (hereinafter defendant Rohroff), and The State Farm Fire and Casualty Company
(hereinafter State Farm), pursuant to MCR 2.116(C)(7).
On appeal, plaintiff argues that summary disposition was inappropriate because NWA could not
be deemed a releasee when NWA was not a party to the litigation specifically referenced in the release.
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Although we disagree that the parties to the release agreement intended to narrow the scope of the
releasees by making a reference to a civil tort action, stemming from the same incident, we agree, in
general, that the release agreement read as a whole is ambiguous as to whether NWA was an intended
releasee.
“This Court reviews a summary disposition ruling de novo.” Bommarito v Detroit Golf Club,
210 Mich App 287, 291; 532 NW2d 923 (1995), citing Merrilat v Michigan State Univ, 207 Mich
App 240, 245; 523 NW2d 802 (1994). When reviewing a motion for summary disposition under
MCR 2.116(C)(7), “this Court must accept as true plaintiff’s well-pleaded allegations, and construe
them in a light most favorable to plaintiff.” Florence v Dep’t of Social Servs, 215 Mich App 211,
213; 544 NW2d 723 (1996) (citation omitted). “The motion should not be granted unless no factual
development could provide a basis for recovery.” Id. at 213-214 (citation omitted). “The pleadings,
affidavits, depositions, admissions, and documentary evidence submitted by the parties must be
considered.” Frommert v Boston Constr, 219 Mich App 735, 737; 558 NW2d 239 (1996), citing
MCR 2.116(G)(5).
“The scope of the release is governed by the intent of the parties as it is expressed in the
release.” Wyrembelski v City of St Clair Shores, 218 Mich App 125, 127; 553 NW2d 651 (1996),
citing Adell v Sommers, Schwartz, Silver & Schwartz, PC, 170 Mich App 196, 201; 428 NW2d 26
(1988). Where a release specifies that the defendant is to be released from “ ‘any claim . . . of any kind
whatsoever,’ ” there exists no ambiguity in this broad all-encompassing language. Gortney v Norfolk &
Western R Co, 216 Mich App 535, 541; 549 NW2d 612 (1996). “However, a contract is ambiguous
if its language is reasonably susceptible to more than one interpretation.” Id. “The question of intention
of the parties, where the language of the release is ambiguous, is normally one to be determined by the
trier of fact.” Stitt v Mahaney, 403 Mich 711, 718; 272 NW2d 526 (1978), overruled in part by
Brewer v Payless Stations, Inc, 412 Mich 673; 316 NW2d 702 (1982).
The phrase “which forms the basis of a civil complaint . . . under civil action number: 92 213
603,” in the first paragraph, appears to relate to the preceding phrase “a [sic] automatic door accident.”
We agree with the trial court which concluded that the reference to the 1992 civil action did not intend
to narrow the scope of releasees. Rather, the 1992 civil action was seemingly referenced in order to
exactly describe the incident and, thereby, delineate the possible claims stemming therefrom for which
the persons and entities would be released from liability. Therefore, as to paragraph one of the release,
the language specifying a release of “all other persons, firms, or corporations . . . from any and all
claims” is all-encompassing (i.e., it includes NWA) and unambiguous.
Although plaintiff narrowly phrased her first claim on appeal, we believe that this issue poses the
general question of whether NWA was an intended releasee under the release agreement between
plaintiff and defendant Rohroff. See Schlientz v Schlientz, 329 Mich 53, 55; 45 NW2d 183 (1950) (if
an issue is suggested in the statement of questions involved, it should be considered). Therefore, a close
reading of the remaining release agreement is in order to determine whether plaintiff intended to release
NWA.
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“ ‘The general rule of contribution is that one who is compelled to pay or satisfy the whole or to
bear more than his aliquot share of the common burden or obligation, upon which several persons are
equally liable or which they are bound to discharge, is entitled to contribution against the others to obtain
from them payment of their respective shares.’ ” Piper Aircraft Corp v Dumon, 421 Mich 445, 458;
364 NW2d 647 (1984). Under MCL 600.2925d(c); MSA 27A.2925(4)(c), in effect at the time of
the signing of the release agreement, the settling tort-feasor is not subject to claims of contribution by
other tort-feasors. As to indemnification, “[t]his Court has repeatedly defined common-law
indemnification as the equitable right to restitution of a party held liable for another’s wrongdoing.”
N Community Healthcare v Telford, 219 Mich App 225, 229; 556 NW2d 180 (1996), citing Paul v
Boyle, 193 Mich App 479, 497; 484 NW2d 728 (1992) (emphasis in original). However, a party may
not bring a claim for indemnification if it is actively negligent which is ascertained from the allegation in
the primary plaintiff’s complaint. Hadley v Trio Tool Co, 143 Mich App 319, 331; 372 NW2d 537
(1985).
Paragraph four’s reference to defendant Rohroff’s indemnification by plaintiff for a possible
claim of contribution by, inter alia, NWA is contradictory to the reading of paragraph one. If NWA
had been an intended releasee, it could not subsequently be compelled to pay on plaintiff’s claim.
Therefore, NWA could not bring a claim of contribution against defendant Rohroff. However, we note
that even if paragraph one functioned to limit the release of only defendant Rohroff and State Farm,
defendant Rohroff, as the settling tort-feasor, would not be subject to claims of contribution by other
tort-feasors, including NWA. See 600.2925d(c); MSA 27A.2925(4)(c). Likewise, paragraph four’s
reference to defendant Rohroff’s indemnification by plaintiff for a possible claim of indemnity or
indemnification by, inter alia, NWA is troubling. If NWA is correct in claiming that paragraph one
intended to release it as well, defendant Rohroff’s concern over indemnification is inexplicable because
NWA’s claim for indemnification would only arise if NWA would be held liable for the wrongdoing of
defendant Rohroff. However, we note that as plaintiff alleged in her complaint against NWA that NWA
had been actively negligent, NWA could not be entitled to indemnification irrespective of whether NWA
had been intended as a releasee.
Thus, the language of the release agreement is reasonably susceptible to the following
interpretations: One, plaintiff and defendant Rohroff intended to release all persons and entities,
including NWA, from liability, through the operation of paragraph one, and paragraph four merely
represented an oversight. Two, NWA was not an intended releasee under paragraph one, and
paragraph four unnecessarily attempted to assure that defendant Rohroff, the settling tort-feasor, would
not be subjected to claims of contribution or indemnification by NWA. As the release is reasonably
susceptible to more than one interpretation, the language of the release read in its entirety is ambiguous.
Therefore, the trial court erred in granting NWA’s motion for summary disposition on the basis of a
prior release pursuant to MCR 2.116(C)(7) as the question of the parties’ intent was a question of fact
for the jury.
Having determined that the release read in its entirety is ambiguous, we do not need to address
plaintiff’s final issue of whether the release agreement was fairly and knowingly made. We do note that
plaintiff failed to preserve the issue of the release’s validity for review as she did not raise it before the
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trial court. Burgess v Clark, 215 Mich App 542, 548; 547 NW2d 59 (1996), citing Garavaglia v
Centra, Inc, 211 Mich App 625, 628; 536 NW2d 805 (1995); Vargo v Sauer, 215 Mich App 389,
393; 547 NW2d 40 (1996), citing Michigan Up & Out Of Poverty Now Coalition v Michigan, 210
Mich App 162, 167; 533 NW2d 339 (1995).
Reversed and remanded.
/s/ Michael J. Kelly
/s/ Mark J. Cavanagh
/s/ Nicholas J. Lambros
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