CREIGHTON E FORESTER V SERVPRO OF BLOOMFIELD & LIVONIA
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STATE OF MICHIGAN
COURT OF APPEALS
CREIGHTON E. FORESTER and DENISE M.
FORESTER,
UNPUBLISHED
November 14, 2006
Plaintiffs-Appellants,
v
SERVPRO OF BLOOMFIELD & LIVONIA, a/k/a
COLBY COMPANY, INC., and BELFOR USA,
f/k/a INRECON, LLC,
No. 268545
Oakland Circuit Court
LC No. 04-057221-NO
Defendants-Appellees,
and
ALLSTATE INSURANCE COMPANY, INC.,
Defendant.
Before: Whitbeck, CJ., and Hoekstra and Wilder, JJ.
PER CURIAM.
Plaintiffs appeal as of right the trial court’s orders granting summary disposition in favor
of defendants ServPro of Bloomfield & Livonia, a/k/a Colby Company, Inc., and Belfor USA,
f/k/a Inrecon, LLC. We affirm. This appeal is being decided without oral argument pursuant to
MCR 7.214(E).
In June and July 2000, a home owned by Steven Lunn sustained significant water damage
when a second-story bathroom developed a leak. Allstate, Lunn’s insurer, contracted with
ServPro to perform cleaning and restoration services in the home. In its contract, ServPro agreed
to use its best efforts to perform in a workmanlike manner and to use reasonable diligence in the
execution of its duties. Subsequently, Lunn hired Belfor, a contractor approved by Allstate, to
perform repairs and rehabilitation on the home. Belfor agreed to perform in a workmanlike
manner in accordance with construction guidelines published by the National Association of
Home Builders.
In 2001, plaintiffs purchased the home from Lunn. Plaintiffs determined that the
flooding problem had resulted in major damage that required extensive renovation of the home.
In 2003, plaintiffs filed suit against Lunn alleging, inter alia, fraudulent concealment and
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misrepresentation. The parties entered into a settlement agreement pursuant to which Lunn paid
plaintiffs $35,000 in exchange for release of all claims against him. Lunn executed an
assignment of claims in which he assigned all claims he had against defendants to plaintiffs.
In October 2004, plaintiffs filed suit against Allstate, ServPro, and Belfor, alleging breach
of contract, negligence, and breach of contract pursuant to a valid assignment of claims. The
trial court granted summary disposition in favor of all defendants, and found that plaintiffs’
claim of negligence was barred by the statute of limitations.
In Forester v Allstate Ins Co, unpublished opinion per curiam of the Court of Appeals,
issued July 26, 2005 (Docket No. 260914), another panel of this Court affirmed in part, reversed
in part, and remanded for further proceedings. This Court reversed the trial court’s grant of
summary disposition of plaintiffs’ negligence and breach of contract claims in favor of ServPro
and Belfor on statute of limitations grounds, id., slip op at 2-4, affirmed the grant of summary
disposition of plaintiffs’ assignment of contract claims in favor of ServPro and Belfor, id. at 4-5,
and affirmed the grant of summary disposition of plaintiffs’ negligence claim in favor of
Allstate. Id. at 5-6. This Court remanded for further proceedings regarding plaintiffs’ claim of
negligence against ServPro and Belfor, only. Id. at 6.
ServPro and Belfor filed separate motions for summary disposition of plaintiffs’ claim of
negligence pursuant to MCR 2.116(C)(10) and MCR 2.116(C)(8) and (10), respectively. Both
ServPro and Belfor argued that it had no duty to plaintiffs. The trial court granted the motions,
finding that neither ServPro nor Belfor owed plaintiffs a duty separate and distinct from its
contractual obligations.
We review a trial court’s decision on a motion for summary disposition de novo. Auto
Club Group Ins Co v Burchell, 249 Mich App 468, 479; 642 NW2d 406 (2001).
To establish a prima facie case of negligence, a plaintiff must prove: (1) that the
defendant owed a duty to the plaintiff; (2) that the defendant breached the duty; (3) that the
defendant’s breach of duty proximately caused the plaintiff’s injuries; and (4) that the plaintiff
suffered damages. Case v Consumers Power Co, 463 Mich 1, 6; 615 NW2d 17 (2000).
The threshold question in a negligence action is whether the defendant owed a duty to the
plaintiff. There can be no tort liability unless the defendant owed duty to the plaintiff. Fultz v
Union-Commerce Assocs, 470 Mich 460, 463; 683 NW2d 587 (2004). A tort action resulting
from misfeasance of a contractual obligation must be based on the existence of a duty separate
and distinct from the contractual obligation itself. Id. at 467.
Plaintiffs argue that the trial court erred by granting summary disposition in favor of
ServPro and Belfor. Plaintiffs assert that ServPro and Belfor breached a duty separate and
distinct from their contractual obligations by engaging in misfeasance that created a new hazard;
therefore, they are liable in tort for the damage created by that hazard. We disagree.
Plaintiffs were not parties to a contract with either ServPro or Belfor. Therefore, under
Fultz, supra, ServPro and Belfor could be liable in tort only if they owed a duty to plaintiffs that
was separate and distinct from a contractual duty. Neither ServPro nor Belfor agreed to perform
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its duties in accordance with any specific industry guidelines. Both ServPro and Belfor agreed
generally to perform contractual duties in a workmanlike manner.1
This case is distinguishable from Osman v Summer Green Lawn Care, Inc, 209 Mich
App 703; 532 NW2d 186 (1995), overruled in part on other grounds in Smith v Global Life Ins
Co, 460 Mich 446, 455 n 2; 597 NW2d 28 (1999), on which plaintiffs rely. In that case, the
defendant, who had contracted to provide snow removal services to the premises owner, created
a new hazard by piling snow in a location from which it knew or should have known that the
snow would melt and freeze into ice on abutting sidewalks, steps, and walkways. Id. at 704. In
this case, no evidence showed that ServPro or Belfor agreed to inspect plaintiffs’ home for mold
or to take steps to remediate a mold problem. Thus, no evidence showed that ServPro or Belfor
acted in a negligent manner that created a new hazard that resulted in harm to plaintiffs.
The trial court did not err in finding that ServPro and Belfor owed no duty to plaintiffs
because neither defendant breached a duty separate and distinct from a contractual duty. Fultz,
supra at 467. The trial court correctly granted summary disposition in favor of ServPro and
Belfor.
Affirmed.
/s/ William C. Whitbeck
/s/ Joel P. Hoekstra
/s/ Kurtis T. Wilder
1
Plaintiffs contend that Belfor was certified by the Institute of Inspection, Cleaning and
Restoration, a non-profit organization of trade associations responsible for setting standards for
the professional inspection, cleaning, and restoration services industries. Belfor’s contract
indicates that it agreed to perform duties in a workmanlike manner “in accordance with the
‘Residential Construction Performance Guidelines’ published by the National Association of
Home Builders.” Plaintiffs point to no evidence that this promise constituted an agreement to
perform duties in accordance with specific standards established by the Institute of Inspection,
Cleaning and Restoration.
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