*1 MASSEY-FERGUSON, INC CUTTER 1982, 6, Lansing. January Docket at No. 57888. Submitted Decided March 1982. legs severely injured Lance Cutter was when his became entan- gled auger-feed conveyor system in the intake area of an while George working employer, farm of his on the Pardonnet. Cutter brought against Massey-Fergu- Shiawassee Circuit suit in Court son, Inc., Inc., wholly-owned subsidiary Badger-Northland, Inc., Massey-Ferguson, designed and manufactured others, conveyor, claiming failing negligence in to instruct safety requirements, adequately sufficiently to warn re- as garding operation necessary safe and to and install obtain Badger additional for safe add use. moved to third-party granted Pardonnet The as a defendant. motion was Marutiak, objection, plaintiffs Badger over Peter J. J. filed a complaint seeking indemnification from Pardonnet claiming plaintiff, should be found liable to Par- negligent donnet was and that his was a direct proximate plaintiffs injuries, of some or all cause percentage determination of Pardonnet’s causal gence alleging agreement that an has arisen between itself and and that vio- Pardonnet implied indemnity agreement by acting negligently. lated the argued that, remedy provision further exclusive compensation notwithstanding, the workers’ act may joined type as a products liability purpose determining action for the and, percentage of causal between defendants thus, reducing primary plaintiff. defendant’s to the summary judgment, claiming Badg- Pardonnet moved for [2] [3, [6] [4] [7] [1] 5] Am Jur 41 Am Jur 41 Am Jur 41 Am Jur 81 Am Jur Workmen’s 41 Am Jur 2d, 2d, 2d, 2d, Indemnity 2d, Indemnity New References 2d, Indemnity Indemnity Topic Service, Comparative Negligence for Points §§ 25.§ § Compensation 42. § 9, 19, 19. 42. Headnotes § 50. 29.§ upon which relief could be a claim er’s failed to state appeals by granted. leave The denied. Pardonnet motion was summary judgment. granted Held: the motion for the denial of cause of action not have does *2 indemnity theory even against of common-law on a Pardonnet charged plaintiff pled specifically Badger so because if direct, negligence. active with complaint by does not 2. The amended against on a Pardonnet of action cause state an enforceable conveyor that, parts component to the by accepting impliedly the recom- to follow system, warranted provided by the manuals and instructions mendations specifically undertake to not Pardonnet did because Badger. perform act for some comparative negligence in adoption of of the doctrine 3. The abrogate concept joint and several of not did require of fault in a case such liability allocation and does not this. deny Pardonnet’s motion court to It error for 4. was summary judgment claim. The trial on judgment summary is motion for of Pardonnet’s court’s denial entry the trial court for is remanded to and the case reversed Pardonnet, dismissing the summary judgment in favor of of Badger. third-party complaint of amended and remanded. Reversed separately J., his Bkonson, state but wrote concurred currently pending extensively, before in a case to deal
intention
negligence
comparative
Appeals,
the issue of
Court of
Supreme
light
among
Court’s decision
tortfeasors in
638;
Heights,
Sterling
An action alleges proves that he is without only a claimant where fault, party to insure suited personal he is not the best any, only negligence, his if preventative and that measures negligence. passive Indemnity Indemnity. — 3. Common-Law again indemnity only to make
Common-law is intended whole vicariously through liable to another no fault held own. Indemnity Indemnity Negligence. — — 4. Active Common-Law indemnity
A is entitled to assert common-law primary complaint alleges negligence on where the active part of the defendant. Implied Indemnity Indemnity. — Contract implied indemnity may An be the action contract basis for an Michigan; indemnity indemnity contract of person action arises in favor of who without , exposed pay part compelled fault on his is damages negligence or on account of the tortious act an- other; right principle is based on the everyone responsible exists his own and it statute, independently of or not rela- whether contractual parties, tions exist between the and whether or not the gent person particular special legal duty the other a or owed negligent. not to be *3 Indemnity Implied Indemnity. — 6. Contract of by against employer
An action a manufacturer an on based an (1) implied agreement requires: specific of indemnification a undertaking employer perform some for act or service (2) manufacturer; attempt by employee and of the employer to hold the manufacturer liable for the failure to perform obligated the act which the do. itself to Negligence Liability — — Comparative Joint Several Negligence. concept abrogated The and several has not been by adoption comparative negligence. of the doctrine of Scheid, Shanahan & plaintiff. Pawlak, P.C.,
Ronald R. Badger-Northland, Inc. Fraser, Trebilcock, Foster, Davis & P.C. Pe- (by Latovick), Dunlap L.
ter and Paula R. George Pardonnet. Opinion of the Court P.J.,
Before: M. F. Cavanagh, and Bronson JJ. Beasley, working 1977, 6, while J. December On
Beasley, third-party employer, on the farm of his plaintiff, George appellant Lance legs severely injured Cutter, entangled became when was auger-feed of an intake area Massey-Ferguson, conveyor system. Plaintiff sued designer subsidiary wholly-owned and the Inc., its system, conveyor defen- and manufacturer claiming Badger-Northland, others, Inc., and dant adequately failing toas to instruct regarding sufficiently requirements, safety to warn necessary operation and install and to obtain safe use. Defendant for safe additional third-party Pardonnet as moved to add plaintiffs objection, the trial court defendant. Over third-party Plain- as a defendant. added Pardonnet delayed application for tiff filed with this Court a appeal of the trial court from the order leave to adding defendant.
Pardonnet 16, 1981. denied on June Leave to com- then filed Defendant plaint subsequently, and, an amended third- indemnification pleading party defendant, Pardonnet, latter indem- contractual included found liable nification should defendant summary judg- plaintiff. moved for 117.2(1) on the ment under GCR basis Badger’s third- each count of defendant amended *4 upon which failed to a claim state granted. 16, 1981, the March relief could be On summary judg- for denied the motion court Court a Then, filed with ment. petition the trial order of leave to the Mich Opinion the Court judgment, summary his motion for granted and we leave. appeal, plaintiff joins
On with Pardonnet reversal the trial of Par- court’s denial judgment. summary donnet’s motion for Third-party appellant, Pardonnet, defendant and paid compensation plain- has workers’ benefits to subject injuries during tiff for the which occurred plaintiff’s employment. course The workers’ compensation remedy act furnishes the exclusive against injuries employee.1 Consequently, by provisions virtue compensation plaintiff prohib- statute, workers’ ited asserting against employer, a claim any alleged negligence of Pardon- net. plaintiff, Badger-
Defendant argues employer may joined Northland, that an products as a defendant in this kind of liability purpose determining suit for the percentage of causal as between defen- defendants) (including third-party dants reducing and, thus, primary defendant’s to the plaintiff. third-party complaint, Badger
In the claims that negligent, Pardonnet was a proximate plain- direct and cause of some or all of injuries. Accordingly, Badger tiff’s seeks determi- percentage nation of of Pardonnet’s causal negligence. Badger alleges also in its count three agreement that there is an has arisen between itself and Pardonnet. by acting negligently, that, claims Pardonnet vio- implied indemnity agreement. lated plaintiff charges Badger case, In this direct, 418.131; 17.237(131), Roberts, MCL MSA Solakis v (1975). 20; 233 NW2d *5 v 33 op Opinion the Court following particu- three in the active (1) require purchasers failing to obtain in to lars: opera- necessary for safe and install (2) designing negligently manufactur- tion; (3) failing auger-feed conveyor; ing the supervise installa- warn, the unit’s safe instruct, or operation. Under these circum- tion and safe stances, not have would indem- on a of common-law cause of action nity against third-party even defendant Pardonnet pled. specifically so if indemnity only lies for common-law An action proves alleges is that he claimant where a party personal fault, he is not without preventative measures and to insure best suited any, only passive negligence, if was that his gence.2 only intended Common-law party vicariously again held liable make whole through own.3 Where no fault of his to another alleges negligence, complaint primary as active to assert here, is not entitled common- a defendant indemnity.4 law
However,
indicated,
third-
in its first amended
complaint,
indemnification
also seeks
plaintiffs employer, Pardonnet, on the basis
from
implied indemnity
This basis has
of an
contract.
recognized Michigan.5
been
Michigan
undertaking
interpret
law,
In
interesting and instructive.
federal cases are
2
58;
Co,
App
Stamping
72 Mich
v Diamond
Minster Machine Co
431;
(1976),
Parker,
App
239
v
66 Mich
tion to dismiss a (employer), held third-party complaint stated enforce *6 indemnity against third-party able claim for defendant as a matter law. The Venters court jury might reasoned that find defendant liable to plaintiff passive only as a tortfeasor that a might defendant be found liable as an Therefore, active tortfeasor. the court denied the summary judgment motion for and set the matter down for trial. Decker, Inc,7
In Bullock v Black & the court discussed the limited circumstances in which a brought by in an action another’s em ployee indemnity, can sue the c namely, implied indemnity where an contract of exists between defendant who is also a third- party plaintiff and a defendant em ployer. The Bullock court denied that there was a implied indemnity, holding basis for an contract attempting that the manufacturer was to build agreement implied top one on of another and that theory was too attenuated to fit in by the narrow area authorized 8 cases. case,
In the instant the motion for summary judgment brought by third-party defen appeared dant, rely the trial court upon Equipment Co,9 Hill v Sullivan where we held: 6 (WD 1980). Mich, Supp 493 F (ED 1980). Supp Mich, 7 502 F Schwartz, Co, & Equipment Proctor Inc United States 624 F2d Equipment Co,supra. (CA 6, 1980), Hill v Sullivan 9 Hill, supra, op Opinion the Court bar, in its alleged
"In at Sullivan the case unqualifiedly rejected Armen-Berry machine in- proposed protective for the cover machinery that the jured plaintiff and advised Sullivan it inacces- used so that would be would situated and these operation. We believe workers while sible to of action allegations indemnity. sufficient state a cause are I.e., rejecting proposed expressly it undertaking conveyor so that to situate cover inaccessible, impliedly may Armen-Berry have would be held indemnify Sullivan should Sullivan be agreed to or Armen-Berry’s rejection of the cover fail- liable for proposed. the machine as ure use third-party complaint thus stated a cause "As the indemnity, summary judgment should action granted.” have been there dissent, Judge In Walsh reasoned contract recovery on an could not be in- unless the negligence. free from active demnification was *7 here, for unnecessary our it is view of conclusions dissent majority to the and us choose between Hill, supra. indicated, inter-
As the federal cases10 previously Hill preted require prongs two an action of indemnification: implied agreement based on an perform the specific undertaking employer and an or service for the manufacturer some act manufacturer by the to hold the attempt employee the the perform liable for the failure to act which obligated itself to do. employer the the Hill In rule to the facts applying case, distinguish the within case instant we Hill and hold that re- the trial court committed motion versible error Pardonnet’s judgment. summary Schwartz, Inc, Decker, supra, & Inc Proctor Bullock Black & Co, supra. Equipment
United States Opinion op the Court complaint,
In the first amended Badger alleges rejected that Pardonnet an avail- hopper integrated able other into auger-feed system, causing the unsafe, it to be component by accepting parts, impliedly warranted to follow the recommenda- Badger. tions and in the instructions manuals of specifi- Hill, Unlike the facts in did not perform cally undertake to some act for the manu- promise is, facturer. That Pardonnet did machinery would be inaccessible employees might to those who in- otherwise be jured. distinguish It is on this basis that we supra. Hill, within case from We hold that third-party complaint amended does not state enforceable cause of action in plaintiff, Badger, against favor third-party defendant, Pardonnet.11 support
Further for our conclusion that third- party defendant, Pardonnet, need not be included in this suit is our decision in Caldwell v Cleveland- employer Caldwell, Cliffs Iron Co.12In applicable provi dismissed from the suit under the sions of the workers’ compensation statute, but, nevertheless, the trial court sent the case to the jury special instructions allocate causal parties between the in accordance with Sterling Heights.13 Placek v spite jury of the fact that the Caldwell found of the blame 75% attributable to the only joint 25% attributable to the venturers’ gence, determined, affirmed, and we that the venturers were liable the entire jury award._ *8 1963, 117.2(1), Hospital, Escobar v Brent General 11 GCR 106 Mich 828, 833; (1981).
App
Consequently, that it was error for the we hold deny Pardonnet’s motion for sum- to mary judgment on the claim. Accord- ingly, to the trial and remand this case we reverse summary judgment entry favor court for Pardonnet, complaint dismissing the amended Badger. by filed Reversed and remanded. Cavanagh, P.J., concurred.
M. F. (concurring). I concur in the ratio J. Bronson, Beasley’s Judge majority opin nale and result separately only note in a case I ion. write currently pending Court, this I intend to before comparative extensively deal issue of light negligence among joint tortfeasors in of Pla Sterling Heights, 638; 275 NW2d cek v (1979). interlocutory However, as this is an 16, trial on March a case scheduled for inportant I believe that it is more opinion quickly released, that Pardonnet will so obligated below, in the action not be defend immediately it for the bench and bar to than learn is my comparative theories of among joint tortfeasors._ Caldwell, supra, cases concerned that in some As in we are expense escape responsibility negligent employers appear at relatively product liability exposure less manufacturers whose employer. policy considerations of fault than that of These
terms Supreme review Court. await