Allan Rooks v. Andover Heights Condominium Association
328561
| Mich. Ct. App. | Dec 22, 2016Background
- Andover Heights Condominium Association contracted Johnnies Concrete Replacement to replace a front-step at unit 72 in 2011.
- In March 2012, Allan Rooks (an amputee using a prosthetic) fell from the step; the vertical drop was ~9¼ inches, about 2 inches higher than the then-applicable code.
- Rooks sued Andover for active negligence; that suit was later settled and is not before the Court.
- Andover filed a third-party claim against Johnnies alleging (1) common-law indemnity and (2) negligence/gross negligence and/or contribution, seeking defense/indemnity/reimbursement.
- Johnnies moved for summary disposition arguing Andover’s claim was effectively for indemnity only (barred because Rooks alleged active negligence by Andover) and alternatively that Johnnies did nothing wrong. Trial court granted Johnnies’ motion; Andover sought reconsideration which was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Andover could pursue common-law indemnity from Johnnies | Andover sought reimbursement/indemnity for amounts paid to Rooks, contending Johnnies may have been negligent in replacing the step | Johnnies argued indemnity is unavailable because Rooks alleged active (not vicarious) negligence by Andover | Indemnity claim fails: complaint’s gravamen is indemnification and is barred because Rooks alleged active negligence by Andover; Andover conceded indemnity was properly dismissed |
| Whether Andover pleaded an independent negligence or contribution claim against Johnnies | Andover labeled Count II negligence/gross negligence and/or contribution and argued Johnnies’ noncompliant replacement could constitute negligence | Johnnies argued the second count merely repackaged indemnity and Andover made no statutory contribution claim | Court held the second count sounded only in indemnification (derivative); Andover did not plead or press a statutory contribution claim, so no direct cause of action against Johnnies remained |
Key Cases Cited
- Peters v. Dep’t of Corrections, 215 Mich. App. 485 (discussing de novo review of summary disposition)
- Beaudrie v. Henderson, 465 Mich. 124 (standards for MCR 2.116(C)(8))
- Neubacher v. Globe Furniture Rentals, Inc., 205 Mich. App. 418 (standards for MCR 2.116(C)(10))
- Botsford Continuing Care Corp. v. Intelistaf Healthcare, Inc., 292 Mich. App. 51 (describing common-law indemnity as relief for vicarious liability)
- Messenger v. Ingham Co. Prosecutor, 232 Mich. App. 633 (affirmance may be based on different grounds than the trial court)