Washtenaw Co Parks & Recreation Commn v. Vortex Aquatic Structures, 355889

In April 2012 Washtenaw County Parks & Recreation contracted with Vortex to design/construct a splash pad; contract specified it began April 10, 2012 and ended November 15, 2012.
Article VI of the contract required Vortex to indemnify the County for "any and all liabilities" arising in connection with the contract; Article XXI stated the contract was the entire integrated agreement.
The splash pad opened May 25, 2013; problems (leaks, pressure, structural issues) occurred from 2013 through 2019; County’s inspection in Nov 2019 documented defects.
The County sent indemnity demand letters to Vortex in March 2020; Vortex did not respond and the County sued in June 2020 seeking a declaration and breach of the indemnity obligation.
Vortex moved for summary disposition under MCR 2.116(C)(8) arguing the contract’s durational term ended its indemnity duty on November 15, 2012; the trial court denied the motion.
On interlocutory appeal the Court of Appeals reversed, holding the contract’s durational term applied to the indemnity clause and ordering summary disposition for Vortex.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the contract’s durational term (Nov. 15, 2012) applies to the indemnification provision	The indemnity clause creates an independent, perpetual obligation not limited by the contract’s end date	The indemnity clause contains no separate duration; absent a separate term, the contract’s durational provision controls	Court: durational term applies; indemnity duty ended Nov. 15, 2012 and plaintiff’s claim arose after termination (reversed trial court)
Whether Miller‑Davis means indemnity provisions are insulated from other contract terms	Miller‑Davis establishes indemnity is an "original and independent" obligation, so it should not be bound by the contract’s general duration	Miller‑Davis does not exempt indemnity clauses from construing the contract as a whole; specific-durational-rule (Kendzierski) controls	Court: Miller‑Davis does not create a durational exception; Kendzierski controls and durational term applies
Whether plaintiff may rely on an alleged 2014 contract or expand the record on appeal	Plaintiff suggested survival of claims under a 2014 agreement	Defendant opposed expansion; appeal limited to issues in the application and record below	Court: declined to consider any 2014-contract argument or extra-record materials; appeal limited to trial-court record

Kendzierski v. Macomb County, 503 Mich 296 (2019) (if a specific provision lacks its own duration, the contract’s general durational term applies to that provision)
Miller‑Davis Co. v. Ahrens Construction, Inc., 495 Mich 161 (2014) (an indemnity obligation creates a direct, primary liability independent of other performance obligations but must be construed from the contract language)
Klapp v. United Ins. Group Agency, Inc., 468 Mich 459 (2003) (courts must give effect to every contract term and avoid interpretations that render provisions nugatory)
Rory v. Continental Ins. Co., 473 Mich 457 (2005) (unambiguous contract provisions are enforced as written)
Zaher v. Miotke, 300 Mich App 132 (2013) (standard for reviewing MCR 2.116(C)(8) motions)