Ajax Paving Industries, Inc. v. Vanopdenbosch Construction Co.

797 N.W.2d 704, 289 Mich. App. 639
CourtMichigan Court of Appeals
DecidedJuly 1, 2010
DocketDocket No. 288452
StatusPublished
Cited by28 cases

This text of 797 N.W.2d 704 (Ajax Paving Industries, Inc. v. Vanopdenbosch Construction Co.) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ajax Paving Industries, Inc. v. Vanopdenbosch Construction Co., 797 N.W.2d 704, 289 Mich. App. 639 (Mich. Ct. App. 2010).

Opinion

Servitto, P.J.

Defendant Vanopdenbosch Construction Co. appeals as of right the trial court’s order granting [641]*641summary disposition in plaintiffs favor. Plaintiff, Ajax Paving Industries, Inc., cross-appeals the trial court’s order denying plaintiffs motion for the entry of a judgment regarding costs and fees. Because the trial court did not err by granting summary disposition in plaintiffs favor on the basis of the parties’ indemnity contract, but erred in its determination that costs and fees recoverable pursuant to the indemnity contract were limited to those incurred after the date Vanopdenbosch Construction Co. was notified of the underlying lawsuits, we remand to the trial court for a determination regarding the reasonableness of plaintiffs 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 defendants, Tenmile Creek Excavating, LLC, and Vanopdenbosch Construction Co., on May 21, 2007. According to plaintiff, the Michigan Department of Transportation (MDOT) hired plaintiff as a contractor with regard to 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 Creek and Vanopdenbosch to obtain, at their expense, workers’ compensation insurance, general-liability insurance, and automobile 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. [642]*642Specifically, a woman 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 arbitration of that matter ultimately resulted in an award in the injured passenger’s favor of $40,000. 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 in the instant lawsuit had refused to defend or hold plaintiff harmless from the claims of the injured passenger 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 plaintiffs motion for summary disposition.

Thereafter, plaintiff moved for the entry of a 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 the two lawsuits. The trial [643]*643court entered an order for partial summary disposition that provided that each defendant would be liable for one-half of the total amount plaintiff paid in the underlying lawsuits ($45,000) 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 plaintiff 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 plaintiffs motion. This appeal followed.

A motion for summary disposition under MCR 2.116(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 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 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 by ruling that the injured passenger’s [644]*644claims 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). When 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 Mich, 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 the terms contained therein. MSI Constr Managers, 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 situation of the parties, and the 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, [645]

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Bluebook (online)
797 N.W.2d 704, 289 Mich. App. 639, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ajax-paving-industries-inc-v-vanopdenbosch-construction-co-michctapp-2010.