Third-рarty defendant, Bethlehem Steel Corporation (hereinafter Bethlehem), is here appealing, on leave granted, the denial of two pretrial motions it filed in this wrongful death action.
Plaintiff, Betty Jane Nanasi, is the administratrix of the estate of Paul Nanasi, deceаsed, a former employee of Bethlehem. Nanasi was killed on the job February 15, 1965, and Bethlehem has paid workmen’s compensation benefits.
This action was filed in Wayne County Circuit Court on February 17, 1966 against defendant-appellee, General Motors Corporation (hereinafter GM), the owner and operator of the manufacturing plant at which Bethlehem was undertaking a construction project. Pursuant to a stipulation between plaintiff and GM, the complaint was amended on March 4, 1968 to join as parties defendant: Huber, Hunt & Nichоls, Inc. (hereinafter Huber, Hunt), the general contractor on the construction project; Albert Kahn, Associated Architects & Engineers, Inc. (hereinafter Kahn), the supervising architect of the project; and Bethlehem.
A motion by Bethlehem for summary judgment on the basis of workmen’s compensation immunity 1 was granted by the trial judge on June 5, 1970, eliminating Bethlehem as a primary defendant. On the same day the court granted motions by Huber, Hunt and GM for leave to file third-party complaints against Bethlehem, alleging common-law and contractual indemnity.
Bethlehem rеsponded by moving for summary judgment on the third-party complaints. In the alternative, Bethlehem prayed for separate trial of *656 the third-party action. Both motions were denied 2 on July 20, 1973 and formed the basis for this appeal. For convenience, we will treat each motion separately.
I.
In its motion for summary judgment Bethlеhem maintains that neither third-party complaint states a claim upon which relief can be granted. 3 Several grounds are advanced in support of this position. To unravel the procedural tangle created in these proceedings, we must briefly resort to preliminary stage-setting.
As Nanasi’s employer, Bethlehem enjoys the protection of the Workmen’s Compensation Act’s exclusivity provision:
"[T]he right to the recovery of compensation benefits * * * shall be the exclusive remedy against the employer.” MCLA 411.4; MSA 17.144, now MCLA 418.131; MSA 17.237(131).
The protection afforded was comprehensive enough to warrant dismissal of plaintiffs complaint against Bethlehem as a primary defendant.
See Maiuri v Sinacola Construction Co,
Bethlehem argues that the third-party complaints filed against it have been improperly drawn. Becausе we are reviewing only the pleadings here, our discussion will necessarily ignore those questions which must await trial for appropriate resolution,
e.g.,
disputed questions of fact.
See White v McLouth Steel Corp,
Both third-party complaints allege that Bethlehem’s negligence was responsible for Nanasi’s death. Bethlehem insists that negligence cannot be averred, as a matter of law, in a third-party complaint against an employer carrying workmen’s compensation, on the authority of
Estate of Clark,
One theory of indemnity offered by third-party plaintiffs is grounded in vicarious liability. They allege that any liability they incur to plaintiff Nanasi "would be vicarious in nature”. Plaintiff Nanasi’s complaint is indeed susceptible, resolving doubts in favor of GM and Huber, Hunt, to a reading which includes as a theory of recovery liability for maintaining and conducting inherently dangerous activities. Thus, GM might be held vicariously liable for the death as an owner of property who allowed inhеrently dangerous activities to be conducted on its premises and Huber, Hunt might be held vicariously liable for allowing, as general contractor, inherently dangerous activities to be engaged in by persons under its control. See, generally,
McDonough v General Motors Corp,
GM and Huber, Hunt must be allowed to plead facts аnd conclusions which can be used to prove their indemnity claims. Therefore, it was not error to permit the allegation of negligence in the third-party complaint.
*659
Bethlehem next contends that the third-party complaints failed to properly plead freedоm from fault, a necessary ingredient to any common-law indemnity claim. It is true that one alleging common-law indemnity must plead and prove freedom from fault.
Husted, supra; Indemnity Insurance Co of North America v Otis Elevator Co,
The third-party plaintiffs have not admitted active negligence in their complaints. Rather, they have limited such admissions to "passive negligence”, exclusively denying active fault. They have also asserted vicarious liability as a basis for recovery against Bethlehem, raising an implication— which we must draw in interpreting the pleadings in their favor — that they claim freedom from negligence. This implication is bolstered by the fact that both third-party plaintiffs, in answering the primary complaint, explicitly deny the negligence attributed to them by plaintiff. Finally, GM and Huber, Hunt have pled an alternаtive contractual basis for indemnity as to which allegations of freedom from fault are not a pleading requirement.
Chrysler Corp v Budd Co,
Bethlehem also maintains that the third-party complaints must be dismissed because of primary *660 plaintiffs failure to plead the theory on which GM and Huber, Hunt assert indemnity, namely, vicarious liability. Bethlehem argues that GM and Huber, Hunt cannot allege that they will be held vicariously liable to plaintiff if plaintiff has not sued on that theory. Assuming arguendo the validity of the argument, we are convinced that plaintiff has adequately pled vicarious liability.
Plaintiff clearly alleges in her amended complaint that the activities which caused decedent’s injuries were inherently dangerous. She alleges negligence on the part of both GM and Huber, Hunt and claims that this negligence proximately caused Nanasi’s death. Although the magic words "vicarious liability” are absent, plaintiff has adequately pled the existence and causal nature of inherently dangerous activitiеs sufficient to establish, if proven at trial, vicarious liability as that theory has been enunciated in
McDonough, supra,
and
Funk, supra.
See,
Yoakum v Practical Home Builders, Inc,
Bethlehem next argues that third-party plaintiffs are not entitled, as a matter of law, to indemnity on the basis of contract. Bethlehem maintains that contractual indemnity is available for the
indemnitees’
(here GM and Huber, Hunt) negligence only if the contract clearly and unmistakably provides for such result. With that principle of law, we have no quarrel. See
Meadows v Depco Equipment Co,
We need not reproduce pertinent portions of the contracts here. Suffice it to say that thеre is some question whether they are contracts of indemnity, whether GM may enforce the terms — whatever they may be — against Bethlehem, whether the contracts "clearly and unmistakably” provide indemnity for third-party plaintiffs’ negligence 4 or whether the contract is in acсordance with the statute. The trial judge was correct in concluding that these questions must be reserved for the trier of fact.
Lastly, Bethlehem argues that, read as a whole, the third-party complaints are really based on a contribution among joint tortfeasors’ theоry and thus barred by
Hasted.
The short answer to this claim is that, viewed in a light most favorable to third-party plaintiffs, GM and Huber, Hunt have pled an indemnity theory independent of the plaintiffs’ primary complaint and consistent with the Workmen’s Compensation Act. Both contractual agreement,
Ryan Stevedoring Co, Inc v Pan-Atlantic Steamship Corp,
*662 II.
Bethlehem urges us to reverse the trial judge’s decision to allow the third-party complaints to be tried together with the primary complaint. Bethlehem insists that the trial judge abused his discretion in refusing to order separate trials pursuant to GCR 1963, 505.2. That rule рrovides:
"The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues.”
However, as the Supreme Court stated in
Peasley v Lapeer Circuit Judge,
"Our rule is expressly limited to situations where such orders of separation are required 'in furtherance of convenience or to avoid prejudice.’ It is not a rule for wholesale application to all cases or tо all of a particular type or to all in a particular circuit. Rather, the rule is cast in language which indicates clearly that it is designed for selective application to those cases in which the convenience of the parties and the court or the avoidance of prejudice compels such deviation from our traditional trial practices.”
It would certainly not be more convenient to conduct separate trials, as Bethlehem tacitly admits. The issues are interwoven, the parties, witnesses аnd proofs nearly identical. Indeed, there might be considerable difficulty in insuring the presence of necessary out-of-state witnesses — Bethlehem employees — at the trial of the primary complaint if the third-party complaints are tried sepa *663 rately. More imрortantly, the trial judge was concerned that separate trials would further delay this already much prolonged lawsuit. We share that concern.
Bethlehem’s claim for separate trial is based solely on alleged prejudice. Bethlehem fears that if the two cаses are tried together, when its negligence is injected into the proofs the jury will find for plaintiff solely, and improperly, on that basis.
The argument would have force could evidence of Bethlehem’s negligence be excluded from the primary case in Bethlehem’s absence. If by separating the two causes we would thereby keep evidence of Bethlehem’s negligence out of the Nanasi-GM-Huber, Hunt suit, then separate trial might be called for. However, as we have seen, Bethlehem’s negligence is potentially an integral pаrt of plaintiffs attempt to show that GM and Huber, Hunt were negligent in supervising the project. Thus Bethlehem’s negligence is relevant and admissible evidence in the primary suit. Separate trials will not prevent the jury from deciding for plaintiff by applying the non sequitur posed by Bethlehem. Indeed, Bethlehem’s presence may provide more proteсtion, since vigilant participating counsel can then more effectively monitor the proceedings. Cautionary instructions, proper presentation of evidence, argument by counsel, even sequential trial of issues, 5 must be relied upon to prevent jury confusion, avoid prejudice to Bethlehem, and assure proper adjudication of these complaints. Denial of the motion for separate trials was not error.
Affirmed. Costs to appellees.
Notes
MCLA 411.4; MSA 17.144 (Workmen’s Compensation Act then in effect).
Although the decision on the motion for separate triаl provides for a separate trial in the event the third-party action is tried by the court, it is apparent at this point that if the third-party complaints go to trial, it will be by jury. The motion for separate trial has therefore been denied for purposes of this appeal.
GCR 1963,117.2(1).
We note also that even if the contracts are found not to provide coverage for the indemnitees’ negligence, if GM and Huber, Hunt are found vicariously liable and not negligent — as pled by plaintiif — the contracts might be determined to be a basis for recovery over against Bethlehem. This is another jury question which we leave open here.
GCR 1963, 509.3.