Patricia Solis v. the Kroger Co of Michigan ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
PATRICIA SOLIS and BENJAMIN SOLIS, UNPUBLISHED
July 26, 2016
Plaintiffs,
v No. 326259
Wayne Circuit Court
THE KROGER CO. OF MICHIGAN, LC No. 12-004379-NO
Defendant/Third-Party Plaintiff-
Appellee,
and
THE GREENER SIDE, INC.,
Third-Party Defendant-Appellant.
Before: RIORDAN, P.J., and SAAD and M. J. KELLY, JJ.
PER CURIAM.
In this indemnification dispute, third-party defendant, The Greener Side, Inc., appeals by
right the trial court’s final order resolving the underlying litigation. On appeal, The Greener Side
argues that the trial court erred when it granted the motion for summary disposition by third-
party plaintiff, The Kroger Co. of Michigan’s (Kroger), on reconsideration. Because we
conclude that the trial court did not err when it determined that The Greener Side had an
obligation to indemnify Kroger under the relevant agreement, we affirm.
I. BASIC FACTS
In December 2011, Patricia Solis slipped and fell on an isolated patch of ice in the
parking lot of a Kroger store. Solis and her husband sued Kroger for damages arising from
Solis’ fall in March 2012. Kroger then sued its snow and ice removal contractor, Progressive
Irrigation, Inc. (Progressive), as well as Progressive’s subcontractor, The Greener Side, in a
third-party complaint. The trial court dismissed Kroger’s complaint against Progressive after
Progressive agreed to assume Kroger’s defense and indemnify it against the claims. The Greener
Side acknowledged the subcontract, but denied that it had an obligation to indemnify Kroger or
otherwise breached the subcontract.
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In April 2013, The Greener Side moved for summary disposition of Kroger’s third-party
claim. It argued that it only had an obligation to defend and indemnify Kroger under the
agreement if the underlying loss were caused by its acts or omissions under the agreement to
provide snow and ice removal services. It presented evidence that there was no snow or ice
event or call that obligated it to provide snow or ice removal services on the day of Solis’ fall.
From this, it maintained, its failure to perform snow or ice removal services could have no causal
connection to the events giving rise to Solis’ suit.
In May 2013, Kroger responded and also moved for summary disposition. It argued that
the indemnification provisions in the agreement were broad and required The Greener Side to
indemnify and defend if the underlying claim involved The Greener Side’s work under the
contract without regard to whether its acts or omissions actually caused the injuries at issue.
The trial court initially granted The Greener Side’s motion, but vacated its decision and
granted Kroger’s motion on reconsideration. Kroger ultimately settled with Solis and her
husband. The Greener Side now appeals in this Court.
II. SUMMARY DISPOSITION
A. STANDARDS OF REVIEW
This Court reviews de novo a trial court’s decision on a motion for summary disposition.
Dancey v Travelers Property Cas Co, 288 Mich. App. 1, 7; 792 NW2d 372 (2010). This Court
also reviews de novo the proper interpretation of a contractual agreement. Rory v Contl Ins Co,
473 Mich. 457, 464; 703 NW2d 23 (2005).
B. ANALYSIS
As an initial matter, in granting Kroger’s motion for summary disposition on
reconsideration, the trial court adopted the “reasons stated in [Kroger’s] motion for
reconsideration and brief in support.” Thus, to the extent that the trial court adopted Kroger’s
various theories pertaining to the obligations or liability of The Greener Side’s general liability
insurer, Secura Insurance, the court erred. Michigan courts “may not make ‘[a]n adjudication
affecting’ the rights of a person or entity not a party to the case.” Shouneyia v Shouneyia, 291
Mich. App. 318, 323; 807 NW2d 48 (2011) (citations omitted). Nevertheless, we conclude that
the trial court came to the correct result as to The Greener Side’s obligations under the
indemnification agreement.
Indemnity contracts are construed in the same manner as any other contract. Badiee v
Brighton Area Schools, 265 Mich. App. 343, 351; 695 NW2d 521 (2005). The language of the
contract sets the extent of the indemnitor’s duty. Zahn v Kroger Co of Mich, 483 Mich. 34, 40;
764 NW2d 207 (2009). “This Court has generally observed that if the language of the contract is
clear and unambiguous, it is to be construed according to its plain sense and meaning.” Id. at 41.
Moreover, courts are not permitted to make a new contract for the parties “under the guise of a
construction of the contract, if doing so will ignore the plain meaning of words chosen by the
parties.” Id. The threshold question in any indemnification action is whether the indemnity
clause applies to the underlying claim at issue. Miller-Davis Co v Ahrens Const, Inc, 495 Mich
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161, 174; 848 NW2d 95 (2014). To answer this question, this court conducts a “straightforward
analysis of the facts and the contract terms.” Id. (quotation marks and citation omitted).
In paragraph nine of the subcontract, The Greener Side agreed to defend and indemnify
Progressive and the owner—logically, the owner of the underlying property—for any claim
connected with its work under the agreement:
9. INSURANCE AND INDEMNIFICATION: Subcontractor takes the entire
risk of any and all personal injuries or property damage arising out of or in any
way connected with the work of Subcontractor. To the fullest extent permissible
by law, Subcontractor shall indemnify, hold harmless and defend Progressive
Irrigation, Inc. and Owner, their employees, agents and representatives from and
against any and all damages, expenses, claims and suits of whatever nature
resulting from damages or injuries, including death, to any property or persons,
caused by, arising out of, or connected with any action, omission or operation
under this contract or in any connection with work attributable to Subcontractor,
any Subcontractor of Subcontractor, and any of their respective employees, agents
or representatives. . . .
The Greener Side argues that this indemnification provision does not apply because it had
no obligation to perform snow and ice removal services on the day of Solis’ fall and, therefore,
there was no “action, omission, or operation under this [sub]contract” on which to premise
liability. Stated another way, The Greener Side argues that the underlying injuries must be
causally related to some act, omission, or operation by it before it will be obligated to defend or
indemnify. The indemnification provision is not, however, ambiguous and plainly does not
require proof that the Greener Side’s acts or omission caused the harm at issue.
The Greener Side agreed to take “the entire risk of any and all personal injuries or
property damage arising out of or in any way connected” with its performance under the contract.
To that end, it agreed to “indemnify, hold harmless and defend” Progressive and Kroger “from
and against any and all damages, expenses, claims and suits of whatever nature” if the claims or
suits were “resulting from damages or injuries, including death, to any property or persons,
caused by, arising out of, or connected with any action, omission or operation under this contract
or in any connection with work attributable to [The Greener Side] . . . .” The terms require The
Greener Side to defend and indemnify Kroger, in relevant part, if 1) there is a claim or suit, 2)
the claim or suit resulted from injuries to any property or person, and 3) the injuries were caused
by, arose out of, or were connected with any action, omission or operation under the subcontract
or had “any connection” with The Greener Side’s work. Because The Greener Side agreed to
defend and indemnify Kroger if the underlying claim had any connection with its acts,
omissions, or operations, or any connection to its work under the subcontract, Kroger did not
have to show that the underlying claim had merit or that it was in fact caused by The Greener
Side’s acts or omissions; it was enough to show that the underlying claim had some “connection”
–however minimal—to the work that The Greener Side performed or was to perform under the
subcontract.
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In this case, the undisputed evidence showed that the claims by Solis and her husband
had a connection to The Greener Side’s work. Solis and her husband claimed that they suffered
damages after Solis encountered ice in Kroger’s parking lot, slipped, fell, and suffered an injury.
It was also undisputed that, under the terms of the subcontract, The Greener Side had the
obligation to remove snow and ice in the parking lot during the days preceding and up to the day
of Solis’ fall—that is, The Greener Side’s performance (or failure to perform) under the contract
plainly encompassed ice hazards in the parking lot. The claims by Solis and her husband were,
accordingly, connected to The Greener Side’s actions, omissions, or operations under the terms
of the subcontract because the claims involved injuries connected to the failure to prevent or
remove ice from Kroger’s parking lot; it does not matter that The Greener Side may have fully
and properly performed under the agreement and may not in fact have caused the ice to persist or
form, or that its performance or failure to perform might not have caused Solis’ fall. Because
this indemnification provision is unambiguous, this Court must enforce it as written. Rory, 473
Mich. at 470.
Under the terms of the indemnification provision, The Greener Side had an obligation to
defend and indemnify Kroger against the claims by Solis and her husband. Consequently, the
trial court did not err when it granted Kroger’s motion for summary disposition on
reconsideration. Given our resolution of this issue, we decline to consider The Greener Side’s
remaining claims of error.
Affirmed. As the prevailing party, Kroger may tax its costs. MCR 2.719(A).
/s/ Michael J. Riordan
/s/ Michael J. Kelly
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