Altman Management Company v. Aon Risk Insurance Services West Inc ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
ALTMAN MANAGEMENT COMPANY, UNPUBLISHED
September 20, 2016
Plaintiff-Appellant,
v No. 328593
Ingham Circuit Court
AON RISK INSURANCE SERVICES WEST, LC No. 13-001106-CK
INC.,
Defendant-Appellee.
Before: JANSEN, P.J., and K. F. KELLY and O’BRIEN, JJ.
PER CURIAM.
Plaintiff-appellant, Altman Management Company (Altman), appeals as of right an order
granting involuntary dismissal in favor of defendant-appellee, AON Risk Insurance Services
West, Inc. (AON), in Altman’s breach of contract and negligence claim against AON. Finding
no errors warranting relief, we affirm.
I. BASIC FACTS
Altman owns and operates a number of properties in several states. AON is an insurance
brokerage firm that contracted with Altman to procure, update, and manage Altman’s insurance
needs. This case arises from AON’s alleged failure to properly handle a claim (the Otero
lawsuit), which resulted in a default judgment against Altman.
Timothy Peterson, Altman’s CFO, testified that AON was selected to serve Altman’s
needs because AON was “the industry leader, the gold standard . . .the white-glove service.” Of
particularly appeal to Peterson was the fact that AON would manage Altman’s complex
insurance needs and provide a “one-stop-shop” and one primary advocate – AON account
executive Mike Rosenbach. Derek Lubsen was head of asset management at Altman and
reported directly to Peterson. Like Peterson, Lubsen considered Rosenbach his “point person” at
AON. Rosenbach acknowledged that he was responsible for Altman’s account but that the
responsibility primarily involved assigning tasks, not receiving and submitting claims to
Altman’s insurers. Instead, Rosenbach had designated claim consultant Diane Gerometta and
later Wayne Brinkman to handle Altman’s needs.
Altman had no written procedure in place when it came to receiving and handling claims.
However, as a general rule, if there was an incident on any of Altman’s properties, the property
manager would forward an incident report to administrative assistant Marisa Crescenzi.
Crescenzi would then put together a file and submit the matter for insurance review. All incident
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reports were submitted, regardless of whether a claim was forthcoming. Importantly, Crescenzi
did not handle lawsuits. If a lawsuit was filed against Altman, the matter was generally handled
by Judi Mann. Crescenzi would only prepare a file and log progress of lawsuits at Mann’s
behest. For a few years Crescenzi forwarded incident reports directly to Westrope, an insurance
wholesaler. However, after one incident report lacked the proper documentation, Westrope
insisted that, going forward, Altman first submit the reports to AON, who would then forward
the claim to Westrope.
In January 2010 Carmen Otero was found unresponsive at an Altman property in Detroit.
In June 2011, her estate sued Altman, claiming that Otero had suffered carbon monoxide
poisoning. When the resident agent for Altman received the lawsuit, she forwarded it to
Peterson. Peterson then forwarded it to Lubsen and Mann and asked that the insurer be notified.
Lubsen immediately forwarded the matter to Rosenbach at AON with a request that Rosenbach
get with him about who would be handling the case. Lubsen did not include Brinkman, AON’s
claims consultant on the email. Nor did Lubsen follow-up with Rosenbach. Rosenbach testified
that he never saw the email and took no action on Altman’s behalf. A default was entered
against Altman on July 25, 2011 after Altman failed to respond to Otero’s complaint. Altman
realized that the matter had been overlooked when it was served with a motion for default
judgment. When Crescenzi found out about it, she immediately forwarded the matter to
Brinkman, indicating, “This one fell through the cracks and an incident report was never filed
and I was not copied on the correspondence so unfortunately it was never submitted to you.”
Altman’s motion to set aside the default was denied. Altman and Otero entered into an
arbitration agreement and Altman was ordered to pay the estate $3.5 million.
Thereafter, Altman sued AON for both breach of contract and negligence. Altman
maintained that AON’s failure to properly submit the Otero matter to Altman’s insurer had
resulted in the $3.5 million judgment. AON contended that, by virtue of the parties’
Compensation Agreement, it had no contractual obligation to report claims for or on behalf of
Altman. This agreement, which covered the period in which the Otero claim was made,
specifically disclaimed any responsibility for reporting Altman’s claims to Altman’s insurance
carriers. Nevertheless, Altman contended that the parties modified this agreement through their
course of conduct. Specifically, Altman alleged that AON had always undertaken reporting
claims to Altman’s insurers and that AON’s failure to do so in the Otero case resulted in
significant loss to Altman. At issue during trial, therefore, was how claims were handled and
whether the parties had modified this agreement by their conduct and Altman’s claim procedure.
Following these proofs, the trial court concluded that “there was a course of conduct
whereby the parties mutually agreed to Altman’s submission of claims through Aon.” However,
while the trial court found that the Compensation Agreement had been modified to provide that
AON would notify Altman’s insurance carriers, the trial court further determined that there were
no firm procedures in place for Altman to report a claim to AON or for AON to receive a claim
from Altman.
Having found that the contract was modified and that no particular procedure was in
place, the trial court then had to turn its attention to another provision in the Compensation
Agreement, which limited AON’s liability:
To the fullest extent permitted by law, [AON] shall have no liability for
any claim or liability asserted by [Altman] for any loss arising by reason of, or
arising out of any error or omission by [Altman] including any failure to comply
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with [Altman’s] duty of disclosure. Should any claim or action be brought against
[AON] due to an error or omission by [Altman], [Altman] shall indemnify [AON]
for all damages or losses arising from such error or omission.
At trial, Altman argued that it committed no errors. It maintained that the Otero matter was
properly submitted to the “point man” at AON – Mike Rosenbach and that it was Rosenbach’s
failure to do anything with the information that caused Altman to default. The trial court
disagreed and found that Altman made a number of errors and omissions in its handling of the
Otero lawsuit. The trial court rejected Altman’s claim that the errors and omissions clause did
not require Altman to indemnify AON against AON’S own negligence. The trial court granted
AON’s motion for involuntary dismissal. Altman now appeals as of right.
II. ANALYSIS
The trial court granted AON’s motion for involuntary dismissal pursuant to MCR
2.504(B)(2). “Unlike the motion for directed verdict, . . . a motion for involuntary dismissal
calls upon the trial judge to exercise his function as trier of fact, weigh the evidence, pass upon
the credibility of witnesses and select between conflicting inferences.” Marderosian v Stroh
Brewery Co, 123 Mich App 719, 724; 333 NW2d 341 (1983). As such, unlike in a motion for a
directed verdict a plaintiff facing a motion for involuntary dismissal “is not given the advantage
of the most favorable interpretation of the evidence.” Id.“This Court reviews a decision to grant or deny a motion for involuntary dismissal under
the clearly erroneous standard. The trial court’s decision will not be overturned unless the
evidence manifestly preponderates against the decision.” Phillips v Deihm, 213 Mich App 389,
397; 541 NW2d 566 (1995). The trial court’s factual findings are likewise reviewed for clear
error. Chelsea Inv Group LLC v Chelsea, 288 Mich App 239, 250; 792 NW2d 781 (2010). “The
clear-error standard requires us to give deference to the lower court and find clear error only if
we are nevertheless left with the definite and firm conviction that a mistake has been made.”
Jonkers v Summit Twp, 278 Mich App 263, 265; 747 NW2d 901 (2008) (internal quotation
marks omitted).
Plaintiff’s arguments on appeal also call into question the trial court’s interpretation of
the parties’ Compensation Agreement. Contract interpretation presents a question of law, which
requires de novo review. White v Taylor Distrib Co, Inc, 289 Mich App 731, 734; 798 NW2d
354 (2010).
Altman first argues that the trial court erred when it concluded that Altman made multiple
errors and omissions in its handling of the Otero matter. We disagree.
The trial court found:
The Court finds that Altman made multiple errors and omissions in the
handling of the Otero lawsuit from June 20 to July 25. Lubsen e-mailed the
lawsuit to only one person at Aon. Although he asked Rosenbach to let him know
who would be handling the lawsuit, Lubsen never followed through when
Rosenbach did not respond. The errors and omissions are not Lubsen’s alone.
Mann was cc’d on the e-mail to Rosenbach. She typically handled the reporting of
lawsuits. Although she informed Crescenzi to set up a file, she also did not follow
through to determine any further status of the lawsuit.
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The efforts to answer the interrogatories appear to have been dropped after
the June 23 e-mails. Had anyone followed through with having the interrogatories
answered it would have certainly revealed the breakdown in communication and
that no attorney had been assigned for Altman.
Altman argues that it fulfilled its duty under the modified Compensation Agreement
when Lubsen forwarded the lawsuit to AON account executive Mike Rosenbach and that the trial
court erred when it concluded that Altman had any obligation beyond that to ensure that the
matter was handled properly. Essentially, Altman contends that the trial court rebalanced the
equities of the modified contract, thereby interfering with the parties’ ability to contract. Our
Supreme Court has noted:
This approach, where judges divine the parties’ reasonable expectations
and then rewrite the contract accordingly, is contrary to the bedrock principle of
American contract law that parties are free to contract as they see fit, and the
courts are to enforce the agreement as written absent some highly unusual
circumstance, such as a contract in violation of law or public policy. This Court
has recently discussed, and reinforced, its fidelity to this understanding of contract
law in Terrien v. Zwit, 467 Mich 56, 71, 648 NW2d 602 (2002). The notion, that
free men and women may reach agreements regarding their affairs without
government interference and that courts will enforce those agreements, is ancient
and irrefutable. It draws strength from common-law roots and can be seen in our
fundamental charter, the United States Constitution, where government is
forbidden from impairing the contracts of citizens, art. I, § 10, cl. 1. Our own state
constitutions over the years of statehood have similarly echoed this limitation on
government power. It is, in short, an unmistakable and ineradicable part of the
legal fabric of our society. Few have expressed the force of this venerable axiom
better than the late Professor Arthur Corbin, of Yale Law School, who wrote on
this topic in his definitive study of contract law, Corbin on Contracts, as follows:
One does not have “liberty of contract” unless organized society both
forbears and enforces, forbears to penalize him for making his bargain and
enforces it for him after it is made. [15 Corbin, Contracts (Interim ed.), ch.
79, § 1376, p. 17.]
[Wilkie v Auto-Owners Ins Co, 469 Mich 41, 51–52; 664 NW2d 776 (2003).]
The plain language of the parties’ Compensation Agreement specifically disclaimed any
responsibility for reporting Altman’s claims to Altman’s insurance carriers: “Basic claims
advocacy does not include claims notification to insurers . . . it is Your responsibility to take
such steps as are necessary to notify directly those insurers whose coverages may apply to any
circumstances, occurrences, claims, suits, demands and losses in accordance with and as may be
required by the terms and conditions of the policies placed for You under this agreement.” The
language could not be clearer – AON specifically contracted that it had no obligation to submit
claims on Altman’s behalf. Still, Altman successfully demonstrated that the parties, through
their actions, had modified the Compensation Agreement. This is true because “[w]hile the
freedom to contract principle is served by requiring courts to enforce unambiguous contracts
according to their terms, the freedom to contract also permits parties to enter into new contracts
or modify their existing agreements.” Quality Products & Concepts Co v Nagel Precision, Inc,
469 Mich 362, 370–371; 666 NW2d 251 (2003). Where, as here, a party claims that a contract
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has been modified through affirmative conduct, there must be “clear and convincing evidence
that a contracting party, relying on the terms of the prior contract, knowingly waived
enforcement of those terms,” satisfying the principle of mutual asset. Id. at 373. It is possible
“the parties’ past practice is so widely acknowledged and mutually accepted that it amends the
contradictory and unambiguous contract language.” Detroit Police Officers Ass’n v City of
Detroit, 452 Mich 339, 340–341; 551 NW2d 349 (1996).
There is no question that the parties, through their affirmative conduct, modified the
terms of the Compensation Agreement and that AON waived its right to enforce the provision
disclaiming its obligation to report claims to Altman’s insurers. The evidence revealed that, at
least from 2008 until 2010, Altman directly submitted claims to Westrope, with a copy to
Gerometta. However, that process changed when Westrope complained to Gerometta that
Altman had not included specific information needed to process a claim. Going forward,
Westrope required Gerometta to submit claims on Altman’s behalf. Gerometta and Brinkman
consistently, routinely and repeatedly submitted Altman’s claims to Altman’s insurers. Even
Rosenbach testified that AON’s obligations to Altman included facilitating contact between
Altman and Altman’s’ insurers and that “the process was to report it to their claims consultant.”
The trial court properly determined that “there was a course of conduct whereby the parties
mutually agreed to Altman’s submission of claims through AON.”
Although pleased with this conclusion, Altman claims that it had no obligation under the
modified Compensation Agreement to do anything but get the Otero claim in the hands of an
AON employee. Altman cites no provision in the Compensation Agreement to support this
claim, likely because under the plain terms of the contract, there was no obligation for AON to
submit Altman’s claims to Altman’s insurers in the first place. It follows, then, that the
Compensation Agreement does not provide clarity in determining the parties’ duties and
obligations for claims reporting. The fact that the trial court determined that the parties had
modified the Compensation Agreement does not result in a clear picture of just how, exactly,
Altman was to forward those claims to AON or how AON was to receive those claims.
Lubsen, Mann and Crescenzi admitted that Altman had no written procedures regarding
claim submission. Crescenzi handled all incident reports, but it follows that she could not create
a file when a property manager failed to submit an incident report, as happened here.
Additionally, while Crescenzi kept a log of incidents and claims, both she and Mann testified
that Crescenzi was generally uninvolved with lawsuits. Lubsen, Mann and Crescenzi
acknowledged that Gerometta and Brinkman were their claims consultants and that most claims
went through them. However, Rosenbach was also copied on the claims.
The trial court did not clearly err in concluding that there was no established procedure
for Altman to report claims to AON nor was there an established procedure for AON to receive
those claims from Altman. By noting Altman’s various errors and omissions, the trial court was
not rebalancing the equities or impairing the parties’ ability to contract. The trial court properly
concluded that the parties had modified the Compensation Agreement through their course of
conduct and that AON was obligated to submit Altman’s claims to Altman’s insurers. It
concluded that “Neither party had its own established procedure. If neither party had its own
procedure, then it can hardly be said that there was mutual agreement to one established
procedure.”
Altman seems to read this to mean that, because there was no established procedure, its
only obligation was to see to it that someone at AON received the Otero claim. There is no
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dispute that Lubsen forwarded the lawsuit to Rosenbach and Rosenbach did nothing with it. If
the only issue was whether Altman had sent the claim on to AON, then that would end the
inquiry. However, the trial court addressed Altman’s “errors and omissions,” not to recreate any
provision of the parties’ agreement, but in the context of the liability and indemnification
provision of the parties’ Compensation Agreement:
To the fullest extent permitted by law, [AON] shall have no liability for any claim
or liability asserted by [Altman] for any loss arising by reason of, or arising out of
any error or omission by [Altman] including any failure to comply with
[Altman’s] duty of disclosure. Should any claim or action be brought against
[AON] due to an error or omission by [Altman], [Altman] shall indemnify [AON]
for all damages or losses arising from such error or omission.
Therefore, the trial court was looking at a broader issue than simply whether Altman had, in fact,
forwarded the Otero matter to AON; it had to consider whether Altman committed any errors or
omissions that would trigger the foregoing provision. In short, the trial court’s findings that the
Compensation Agreement had been modified and that there was no specific claims procedure
were relevant to whether the contract had been modified but were not dispositive of whether
Altman acted without error or omission.
Altman’s errors and omissions were many. Lubsen forwarded the lawsuit only to
Rosenbach and other Altman employees, even though Lubsen knew that Wayne Brinkman was
the AON claims consultant. And, even though Lubsen specifically asked Rosenbach to
acknowledge receipt and send further information, Lubsen never followed up when Rosenbach
failed to respond. Altman admittedly had no written procedure for any internal or external
claims reporting. Property managers were encouraged to create incident reports for all matters
great and small, but the property manager failed to create an incident report when Ms. Otero was
found non-responsive in her apartment. Had an incident report been submitted, Crescenzi would
have forwarded it to Brinkman at AON. Because there was no incident report, Crescenzi did not
create a file and had nothing to submit. It was not until after Mann received notice of the lawsuit
that Crescenzi created a file, but Crescenzi’s involvement with lawsuits was limited. She had no
reason to submit the matter to Brinkman, thinking it was already being handled by Mann. Mann
and French then attempted to answer interrogatories instead of ensuring that an attorney had been
appointed and would handle such discovery going forward. In fact, Mann did not keep track of
the Otero lawsuit by logging any deadlines.
Altman cites Walters v O’Keefe, 377 Mich 37; 138 NW2d 751 (1966), Federspiel v
Bourassa, 151 Mich App 656; 391 NW2d 431 (1986), and Shawl v Spence Bros, Inc, 280 Mich
App 213; 760 NW2d 674 (2008) for the idea that Altman was under no duty to follow up with
AON after the Otero lawsuit was forwarded to Rosenbach. But Altman fails to see that the trial
court found more than just a mere failure to follow up – the trial court also considered Altman’s
failure to have proper procedures in place and its failure to follow its own loosely-held informal
procedure. Therefore, while Altman may have submitted the claim to AON and AON was
admittedly negligent in failing to take action, Altman’s own errors and omissions remained
relevant for purposes of the hold harm/indemnity provision of the parties’ Compensation
Agreement.
Altman next argues that the trial court erred by applying the limitation of liability and
indemnity clauses in the Compensation Agreement to bar the lawsuit. We disagree.
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Altman argues that the provision is applicable because Altman committed no error or
omission. However, as discussed above, the trial court did not clearly err in finding that Altman
committed a number of errors and omissions that contributed to the default being entered in the
Otero matter.
Altman then argues that the indemnity clause has no application because indemnity
clauses only apply to claims by third parties and not between the parties, citing Ray D Baker
Contractor, Inc v Chris Nelsen & Son, Inc, 1 Mich App 450; 136 NW2d 771 (1965). However,
while indemnification provisions do not generally cover contract disputes between the parties,
there is nothing to prevent the parties from contracting for indemnification based on contract
performance. “Michigan law provides contracting parties with broad discretion in negotiating
the scope of indemnity clauses.” Miller-Davis Co v Ahrens Const, Inc, 495 Mich 161, 173; 848
NW2d 95 reh den 495 Mich 998 (2014). Parties can, and do, contract for indemnification
liability beyond that arising from third-party claims when they use broad language. Indemnity
clauses may, if the parties so intend, provide coverage for the indemnitee’s own negligent acts.
Sherman v DeMaria Building Co, Inc, 203 Mich App 593, 596-597; 513 NW2d 187 (1994);
Fischbach-Natkin Co v Power Process Piping, Inc, 157 Mich App 448, 452; 403 NW2d 569
(1987); Paquin v Harnischfeger Corp, 113 Mich App 43, 52-53; 317 NW2d 279 (1982).
Altman argues that, even if the indemnity clause applies between the parties, AON is not
entitled to indemnification for all damages or losses and indemnification is limited to only
damages or losses arising from “such” error by Altman. It argues that Altman did not agree to
indemnify AON for AON’s breach of contract or negligence. Our Supreme Court has set forth
the following standard for reviewing indemnity clauses:
As with any other contract, our primary task in construing a contract for
indemnification is to give effect to the parties’ intention at the time they entered
into the contract. We determine the parties’ intent by examining the language of
the contract according to its plain and ordinary meaning. In doing so, we avoid an
interpretation that would render any portion of the contract nugatory. We assess
the threshold question whether a contract’s indemnity clause applies to a set of
facts by a “straightforward analysis of the facts and the contract terms.”
Where parties have expressly contracted for indemnification, the extent of
the duty must be determined from the language of the contract. [Miller-Davis,
495 Mich at 174 (internal footnotes and quotation marks omitted).]
In Miller-Davis, the indemnification agreement provided:
You [Ahrens] as Subcontractor/Supplier agree to defend, hold harmless
and indemnify Miller–Davis Company ... from and against all claims, damages,
losses, demands, liens, payments, suits, actions, recoveries, judgments and
expenses including attorney’s fees, interest, sanctions, and court costs which are
made, brought, or recovered against Miller–Davis Company, by reasons of or
resulting from, but not limited to, any injury, damage, loss, or occurrence arising
out of or resulting from the performance or execution of this Purchase Order and
caused, in whole or in part, by any act, omission, fault, negligence, or breach of
the conditions of this Purchase Order by the Subcontractor/Supplier, its agents,
employees, and subcontractors regardless of whether or not caused in whole or in
part by any act, omission, fault, breach of contract, or negligence of Miller–Davis
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Company. The Subcontractor/Supplier shall not, however, be obligated to
indemnify Miller–Davis Company for any damage or injuries caused by or
resulting from the sole negligence of Miller–Davis Company. [Miller-Davis, 495
Mich 174-175.]
At issue was whether the clause applied to corrective work performed by the general contractor.
The Court of Appeals had concluded that the indemnity provision did not apply because there
had been no “claim or demand.” The Supreme Court reversed, finding that “[t]he language used
by the parties in contracting for indemnity is unambiguous and clearly intended to apply as
broadly as possible.” Id. at 175. The Court went on to state:
While the indemnity clauses specifically mention a “claim,” they also trigger
liability more broadly, when “damages, losses, demands,” or “expenses,” result
from “any act, omission, fault, negligence, or breach....” Furthermore, the
definition of “claim” itself is broad. Black’s Law Dictionary defines a claim as the
“aggregate of operative facts giving rise to a right enforceable by a court,” and
“any right to payment or to an equitable remedy....” [Id. (internal footnotes
omitted).]
In the case at bar, the broadly-worded indemnification agreement requires
indemnification for “all” damages or losses “arising by reason of, or arising out of any error or
omission” by Altman. Citing MSI Const Managers, Altman argues that “arising from such error
or omission” in the indemnity clause is the equivalent of “to the extent” language as used in MSI
Const Managers, which found that in the event that both parties to the contract were negligent,
the indemnor was only responsible for indemnifying the indemnee for the percentage of the
subcontractor’s negligence. MSI Const Managers, 208 Mich App at 343-344. “Arising from”
should not be given the limited interpretation that Altman suggests.
“Arise” is defined as “to result; spring or issue.” Random House Webster’s
College Dictionary (1997).
***
In interpreting an insurance contract containing the language “arising out
of,” we held that such language requires a causal connection that is more than
incidental. Similarly, in interpreting a workers’ compensation statute, MCL
418.301, containing the language “arising out of,” we held that this language
requires a causal connection. [People v Johnson, 474 Mich 96, 100–101; 712
NW2d 703 (2006).]
This Court has also noted that “[t]he term “arising out of” does not mean proximate cause in the
strict legal sense” and that “almost any causal connection or relationship will do.” Shinabarger v
Citizens Mut Ins Co, 90 Mich App 307, 313–314; 282 NW2d 301 (1979). “The question to be
answered is whether the injury ‘originated from,’ ‘had its origin in,’ ‘grew out of,’ or ‘flowed
from’” the party’s conduct. Id. Here, the broad language of the agreement encompasses
indemnification for Altman’s conduct because, as discussed in Issue I, its numerous errors and
omissions played a part in the Otero default judgment. There was a causal connection between
Altman’s errors and omissions and the default judgment that was more than incidental.
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Nor is Badiee v Brighton Area Schools helpful to Altman. In Badiee, this Court
concluded that the parties’ indemnification agreement was meant to apply solely to the
indemnor’s acts and not the indemnee’s. Badiee, 265 Mich App at 352-355. This was true
because the language of the parties’ indemnification agreement was silent on the issue and the
surrounding circumstances did not support a finding that the parties contemplated that the
indemnee’s own acts were included. In contrast, the indemnity provision in the case at bar could
not be clearer: “To the fullest extent permitted by law, [AON] shall have no liability for any
claim or liability asserted by [Altman] for any loss arising by reason of, or arising out of any
error or omission by [Altman] including any failure to comply with Your duty of disclosure.”
The second provision provides: “Should any claim or action be brought against [AON] due to an
error or omission by [Altman], [Altman] shall indemnify [AON] for all damages or losses arising
from such error or omission.” Thus, whereas indemnity as between the two parties was not
specifically provided for in the indemnity agreement in Badiee, indemnity between the two
parties was clearly contemplated and provided for in the case at bar.
The trial court concluded:
The language in the Compensation Agreement in the present case is not
limited, as in MSI Const Managers, and it is not absent, as in Badiee. The errors
and omissions clause is expressly stated in the broadest possible terms. Aon has
no liability for any claim made against Aon by Altman for any loss arising out of
any error or omission by Altman.
Beyond the broad nature of the language is the fact that it covers any claim
by Altman against Aon. Unlike clauses that cover third party liability but are
silent with respect to claims between indemnitor and indemnitee, this clause
focuses only on claims made by Altman against Aon. This language conclusively
shows that the parties contemplated some claim by Altman against Aon, such as
breach of contract or negligence, and that Altman agreed to indemnify Aon even
if Aon was negligent. Only in the face of Aon’s sole negligence would the
indemnification clause not apply. Aon is not solely negligent.
Altman asks this Court to assist it in obtaining justice. Altman may have
every right to be indignant over Aon’s mishandling of its claim. One would not
expect that a company at Aon’s level would commit such an egregious error and
cause its own client such enormous consequences. However, Altman freely
contracted with Aon to indemnify Aon for Altman’s own errors and omissions.
When Altman did that, it took on the risk that it, too, would mishandle something
as important as a multi-million dollar lawsuit. Despite the risk, Altman made no
standard internal procedures for handling claims against it. What procedure they
did have was either not known by essential people at Altman or was not followed
in this case by essential people at Altman. Per Altman’s agreement, Aon is not
liable.
The trial court did not err in concluding that the parties’ Compensation Agreement barred
Altman’s claims.
Finally, Altman claims that, even if it committed any errors or omissions, such
comparative negligence was irrelevant to its breach of contract cause of action and also did not
act as a complete bar to its negligence action. We disagree.
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“As a general proposition, parties are free to enter into any contract at their will, provided
that the particular contract does not violate the law or contravene public policy. . . . In a variety
of settings, this Court has upheld the validity of exculpatory agreements or releases that absolve
a party from liability for damages caused by the party’s negligence.” Cudnik v William
Beaumont Hosp, 207 Mich App 378, 383–384; 525 NW2d 891 (1994). It is not contrary to the
public policy of Michigan for a party to contract against liability for that party’s own ordinary
negligence. St. Paul Ins v Guardian Alarm, 115 Mich App 278, 283; 320 NW2d 244 (1982).
And, as previously stated, “Michigan law provides contracting parties with broad discretion in
negotiating the scope of indemnity clauses.” Miller-Davis, 495 Mich at 173. The parties clearly
contemplated their rights, duties and obligations when they freely entered into the broadly-
worded indemnification agreement.
Affirmed.1 As the prevailing party, AON may tax costs. MCR 7.219.
/s/ Kathleen Jansen
/s/ Kirsten Frank Kelly
/s/ Colleen A. O'Brien
1
Having affirmed the trial court’s order, we see no need to address AON’s alternative grounds
for affirmance.
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