Chicago Insurance v. Chimnee Cricket, Inc.

17 F. App'x 374
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 24, 2001
DocketNos. 00-1314, 00-1315
StatusPublished
Cited by3 cases

This text of 17 F. App'x 374 (Chicago Insurance v. Chimnee Cricket, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chicago Insurance v. Chimnee Cricket, Inc., 17 F. App'x 374 (6th Cir. 2001).

Opinion

PER CURIAM.

Defendants Chimnee Cricket Incorporated (“Chimnee Cricket”); John Cerrito, Jr.; and Irina Youdin appeal the district court’s decision granting summary judgment to plaintiff Chicago Insurance Company (“Chicago Insurance”) in this diversity action under Michigan law seeking a declaratory judgment as to the rights and liabilities under a general liability insurance policy. For the following reasons, we affirm.

I

Youdin’s husband, Youri, a Russian immigrant, signed an Independent Dealer Contractor Agreement (“the Agreement”) with Chimnee Cricket, a chimney sweep company, on August 12, 1997. The same day, Youri went to a home in Mt. Clemens, Michigan to inspect a chimney. Youri fell off the roof, hit the concrete driveway, and suffered head injuries that resulted in his death the next day.

The Agreement entered into between Youri and Chimnee Cricket included the following provisions:

The relationship of [Youri Youdin] and Chimnee Cricket, Inc., is and shall continue to be that of an Independent Contractor, and no Liabilities or Benefits, such as Workmen’s Compensation, Pension Rights, or Liabilities, Insurance Rights or Liabilities, arising out of or related to an employer/employee relationship, shall arise, or accrue to either party or either party’s agent, subcontractor, [sic] shall be implied between the two parties, or between either party as the other party’s agent, employee, or subcontractor, and the Independent Contractor hereby agrees to hold Chim-nee Cricket, Inc. harmless for any such claims by it or its associates, and any costs or expenses related thereto. Compensation for Services Rendered will be based on a fee for all completed and valid orders and/or jobs the Contractor brings into the Firm, and said fees to be paid to such Contractor.
Contractor will be solely responsible for all tax liabilities as a self-employed Independent Contractor.
Contractor will be solely responsible for reporting of such to the appropriate taxing authorities.
Contractor shall be deemed to be an Independent Contractor for all purposes and shall not be deemed to be an employee of Chimnee Cricket, Inc. for purposes of payroll taxes, Workmen’s Compensation, Unemployment Compensation, Fringe Benefits or any other purposes.
At the end of the calendar year, the Firm will provide the Contractor with a statement reported by Form 1099 detailing the amount of non-employee compensation paid to the Contractor for the year.
The firm is not responsible for injury caused by acts or omissions not amounting to negligence.
The contractor agrees to ‘Hold Harmless’ Chimnee Cricket, Inc. for any and all legal proceedings brought against Contractor, Contractor’s Subcontractor and/or Contractor’s company.
I authorize Chimnee Cricket, Inc., to hold and/or keep any money due to me for any questionable behavior such as theft or side jobs (doing work under the table).

On April 8, 1998, Youdin filed a complaint in Michigan state court against Chimnee Cricket and Cerrito, the owner of Chimnee Cricket. Youdin alleged that in [376]*3761997, her husband died as a result of injuries he suffered after he fell from a residential roof while employed by Chimnee Cricket as a chimney sweeper. Youdin claimed that Chimnee Cricket failed to provide workers’ compensation insurance for Youri and therefore was liable in tort for Youri’s injuries and death. In addition, Youdin claimed that even if her husband was an independent contractor, as claimed by Chimnee Cricket, Chimnee Cricket was hable for negligence based on its failure to guard against avoidable danger in a common work area.

Chimnee Cricket’s insurer, Chicago Insurance, filed a declaratory judgment action against the defendants on July 15, 1999. The complaint alleged that Chicago Insurance had issued a general liability insurance policy to Chimnee Cricket, but that the policy excluded coverage for a claim based on Youdin’s injuries and death. Chicago Insurance relies on Section I(2)(e) of the policy, which states:

This insurance does not apply to:

e. “Bodily injury” to:
(1) An employee of the insured arising out of and in the course of employment by the insured; or
(2) The spouse, child, parent, brother or sister of that employee as a consequence of (1) above.
This exclusion applies:
(1) Whether the insured may be liable as the employer or in any other capacity; and
(2) To any obligation to share damages with or repay someone else who must pay damages because of the injury.

Chicago Insurance also points out that it did not issue any employer’s liability or workers’ compensation policies to Chimnee Cricket.

Chicago Insurance states that after Youdin filed her lawsuit, it became aware of evidence indicating that Youdin was an employee of Chimnee Cricket and not an independent contractor as Chimnee Cricket claimed. Chicago Insurance included this evidence as exhibits to its motion for summary judgment.

As “Exhibit D,” Chicago Insurance filed the results of an investigation conducted by the Michigan Department of Consumer and Industry Services, Construction Safety Division (MIOSHA) to determine if Chimnee Cricket had violated any of the employer standards set by the Michigan Occupational Safety and Health Act. On November 24, 1997, MIOSHA issued a citation and notification of penalty against Chimnee Cricket for various safety violations as an employer relating to Youri’s injuries and death.

As “Exhibit E,” Chimnee Cricket filed a handwritten narrative report prepared by Patrick Sullivan of the Michigan Department of Labor, Bureau of Safety and Regulation. In the report, Sullivan indicated that individuals working for Chimnee Cricket had filed claims with the Michigan Department of Consumer Services, Wage and Labor Division, which determined that the individuals were employees even though they had signed Independent Contractor Agreements. These claims were filed under provisions of Michigan law by which employees who have left a position can claim payment of past wages earned and due. See M.C.L. § 408.475(1). Copies of two such determinations were filed as “Exhibit F.” In the determinations, the Department of Labor concluded that, in one case, Chimnee Cricket “exercised significant direction and control over where, when, and how claimant’s work was to be performed” and, in the other, that Chim-nee Cricket “exercised pervasive and ultimate control over the work performed.” Therefore, the Department concluded that the individuals were employees and not independent contractors. In addition, the [377]*377determinations stated that Chimnee Cricket determined the prices for all services and reserved its right to fine chimney sweepers for fading to show up at a job.

Chicago Insurance also points out “factual findings” that it states were included in Sullivan’s narrative report. Sullivan included the following statements that were based on interviews he conducted as part of his investigation of Chimnee Cricket: (1) a “former employee ... said when he reported for work at Chimnee Cricket ...

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Western World Insurance Co. v. Mary Armbruster
773 F.3d 755 (Sixth Circuit, 2014)
Himes v. United States
645 F.3d 771 (Sixth Circuit, 2011)
Citizens for Tax Reform v. Deters
462 F. Supp. 2d 827 (S.D. Ohio, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
17 F. App'x 374, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chicago-insurance-v-chimnee-cricket-inc-ca6-2001.