Despite the apparent confusion soon forthcoming in the recitation of the facts of this multi-party litigation, the basic issues on appeal are not difficult. Plaintiffs were injured while at work on a blast furnace at McLouth Steel Corporation, hereinafter referred to as McLouth. They were hired by A. E. Anderson Construction Company, hereinaftеr referred to as A. E. Anderson, the general contractor, to assist in the general work of relining the McLouth furnace. A provision of the contract between McLouth and A. E. Anderson provided indemnity to McLouth in the event that it became subject to claims, demands or liabilities for *690 injuries connected with the work. Plaintiffs’ injuries were allegedly caused by an еxplosion set off by another employee of A. E. Anderson. They obtained workmen’s compensation from A. E. Anderson, their employer, and then sued McLouth, first in general and gross negligence, then amending their complaint to charge that there was an inherent danger in the ultra-hazardous activities being carried on by A. E. Anderson on the premises of McLouth for which McLouth was liable. Plaintiffs’ wives are also before us, having brought separate actions proclaiming the same issues of law and fact.
Zurich Insurance Company, hereinafter referred to as Zurich, was the workmen’s compensation insurer of A. E. Anderson. It intervened in the action by plaintiffs against McLouth, alleging the same grounds for recovеry in order to protect its compensation lien provided by statute. Seeking to invoke the indemnity clause of the contract, McLouth filed an action, later amendеd, impleading A. E. Anderson as a third-party defendant. 1 Definitely not wishing to get involved, A. E. Anderson moved for summary judgment against McLouth based on Mc-Louth’s alleged failure to state a claim upon which relief to it could be granted. 2 The motion was heard and granted by the lower court. To reiterate with the continuing intent of simplification, we note that McLouth is the plаintiff-appellant on this appeal and A. E. Anderson is the defendant-appellee.
The question presented is whether the “exclusive remedy” provision of the workmen’s compensation act prevents McLouth from obtaining indemnification (1) at common law, or (2) under a contract with the employer Anderson, and (3) if the act does not prеvent recovery under a contract, does the *691 McLouth-Anderson contract provide indemnification against the particular claims asserted by the plaintiffs White?
It was manifest to the lower court that, given the “exclusive remedy” provisions of the workmen’s compensation act,
3
an employer such as A. E. Anderson should not be subject to actions apparently founded on negligence liability brought by its employees. Referring to the case of
Geurink
v.
Herlihy Mid-Continent Company
(1966),
The definitive ease on third party joinder of employers by a principal defendant where the provisions of the workmen’s compensation act serve to
*692
defeat such joinder is that of
Husted
v.
Consumers Power Company
(1965),
Before analysis of McLouth’s argument that the present case is an exception to the general rule as noted in Husted, it is convenient to delineate the holding of this Court in Oeurinh, supra. There аn indemnitee was prevented by the Court from recovering under an indemnification contract containing terms similar to those in this case because there were no provisions included which expressly permitted recovery by the indemnitee in the event of his own negligence. 7 Alleging that the plaintiffs White are suing it for vicarious and strict liability 8 and not for personal fault, McLouth asserts that it is entitled to both protection under the contract and *693 common-law indemnity. Therefore, the omission of the language in this contract dealing with negligence of the indemnitee is not necessarily fatal as McLouth is being sued for vicarious and strict liability and not solely for negligence. McLouth also alleges in the alternative that the contract of indemnification protects it to the extent that it is held liable because of Anderson’s actions or nonactions. It is argued that the substancе of the action against McLouth cannot be determined until the trial, and we agree. However, we deduce that given for the moment McLouth’s argument that the actions by plаintiffs White against McLouth are not founded' solely in negligence, then where, in the alternative, does the fault and the duty to compensate for the injuries lie? By including a shifting of these burdеns by contract or by the law of torts to the employer, would the principal action then only be a disguised and prohibited action by an employee against his employer? We think not necessarily, and hold that the joinder of the employer as a third-party defendant in a case where vicarious or strict liability is being charged against a prinсipal defendant is permissible where it appears before trial that the employer and the defendant stand in a unique relationship which may have created certain duties and obligations by reason of contract or tort.
We agree with the
¡lusted
Court that the cases of
Lunderberg
v.
Bierman
(1954), 241 Minn 349 (
Unlike the situation in most of the cases studied by this Court, we do not know the merits of the contentions made by the Whites, Zurich or McLouth as to who really is primarily liаble for the injuries. Basis for recovery has been asserted, but as final determination must await the wisdom of a trial court or a jury, it is impossible to know whether and on what grounds recоvery may be allowed to the Whites. Only a thorough examination of the charges made at the trial will determine the likelihood of subsequent success for McLouth in obtaining indemnity from A. E. Anderson on the theories of contractual indemnity or common-law tort indemnity as herein set forth. 12
Reversed and remanded. Costs to appellants.
Notes
GOB 1963, 204.
GOB 1963, 117.2(1).
MOLA § 411.4 (Stat Ann 1968 Eev § 17.144) ; MOLA § 416.1 (Stat Ann 1968 Eev § 17.212).
See 1 Honigman & Hawkins, Michigan Court Eules Annotated, committee notes to GCE 1963, 117, p 353.
Blackford
v.
Sioux City Dressed Pork, Inc.
(1962),
On suits for indemnity between property owners and contractors for injuries to third parties on the job where no contract of indemnity is involved, see 97 ALR2d 616.
Meadows
v.
Depco Equipment Company
(1966),
On secondary and primary liability in cases alleging a duty to maintain safe premises, see
Builders Supply Co.
v.
McCabe
(1951), 366 Pa 322 (
Although the ease and the annotation deal with liabilities as between owners of motor vehicles and emрloyees of indemnitor employers and injured persons, the principles involved are here relevant. Also, see Burris v. American Chicle Co. (CA 2, 1941), 120 F2d 218; 2 Larson, Workmen’s Compensation, 1968 Supp, § 76.48; Prosser on Torts (3d ed), § 48, Indemnity, pp 279, 280, and cases cited therein,
Mesle v. Kea S. S. Corp. (CA 3, 1958), 260 F2d 747.
Mulcahy
v.
Argo Steel Construction Company
(1966),
See
Brady
v.
Stanley Weiss & Sons, Inc.
(1958), 6 App Div 2d 241 (