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City of Birmingham v. Royal Oak Landscaping & Snow Removal Service5/3/2005
UNPUBLISHED
Plaintiff filed this action against defendant seeking indemnification for damages that plaintiff paid in a slip and fall case. The trial court denied plaintiff's motion for summary disposition and granted summary disposition for defendant under MCR 2.116(C)(10) and (I)(2). Plaintiff appeals as of right. We reverse. This case is being decided without oral argument pursuant to MCR 7.214(E).
The parties entered into a contract for defendant to remove snow in plaintiff 's shopping district. The parties' agreement included the following indemnification clause:
15. To the fullest extent permitted by law, the CONTRACTOR and any entity or person for whom the CONTRACTOR is legally liable, agrees to be responsible for any liability, defend, pay on behalf of, indemnify, and hold harmless the PSD and the City of Birmingham, their elected and appointed officials, employees and volunteers and others working on behalf of the PSD or the City of Birmingham against any and all claims, demands, suits, or loss, including all costs connected therewith, and for any damages which may be asserted, claimed or recovered against or from the PSD or the City of Birmingham, their elected and appointed officials, employees, volunteers or others working on behalf of the PSD or the City of Birmingham, by reason of personal injury , including bodily injury and death and/or property damage, including loss of use thereof, which arises out of or is in any way connected or associated with this contract. Such responsibility shall not be construed as liability for damage caused by or resulting from the sole act or omission of the PSD or the City of Birmingham, their elected or appointed officials, employees, volunteers or others working on behalf of the PSD or the City of Birmingham.
On January 5, 2001, Barbara Bozzo fell on a sidewalk in plaintiff's shopping district and fractured her ankle. Bozzo filed a lawsuit against plaintiff, which was settled for $18,000. Bozzo also filed a lawsuit against defendant based on the same fall, and obtained a $2,500 settlement.
Plaintiff subsequently filed this action against defendant and moved for summary disposition under MCR 2.116(C)(10). Plaintiff argued that defendant was required to indemnify it for the $18,000 amount that it paid to Bozzo pursuant to the indemnification clause in the parties' snow removal contract and that plaintiff was entitled to judgment in its favor. The trial court denied plaintiff's motion because Bozzo testified at her deposition that uneven concrete may have caused or contributed to Bozzo's fall, and there had not been a definitive finding that plaintiff was not partially responsible for the condition that caused Bozzo's fall. On reconsideration, the trial court granted summary disposition for defendant.
This Court reviews a trial court's decision on summary disposition de novo. Spiek v Dep't of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). A motion under MCR 2.116(C)(10) tests the factual support for a claim. Summary disposition should be granted if, except as to the amount of damages, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Babula v Robertson, 212 Mich App 45, 48; 536 NW2d 834 (1995).
The law regarding express contracts for indemnification is summarized in Hubbell, Roth & Clark, Inc v Jay Dee Contractors, Inc, 249 Mich App 288, 291; 642 NW2d 700 (2002):
A right to indemnification can arise from an express contract, in which one of the parties has clearly agreed to indemnify the other. Langley v Harris Corp, 413 Mich 592, 596; 321 NW2d 662 (1982); Dale v Whiteman, 388 Mich 698, 704; 202
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