Estate of Koch v. A. Z. Shmina, Inc. (In Re Estate of Koch) , 322 Mich. App. 383 ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
In re ESTATE OF MICHAEL KOCH.
Estate of Michael Koch, by SUSAN KOCH, FOR PUBLICATION
Personal Representative, December 19, 2017
9:00 a.m.
Plaintiff
v No. 332583
Washtenaw Circuit Court
A. Z. SHMINA, INC, LC No. 13-001066-NO
Defendant/Cross-Defendant-
Appellee/Cross-Appellant,
and
ORCHARD, HILTZ, & MCCLIMENT, INC.
Defendant/Cross-Plaintiff/Third-Party
Plaintiff-Appellant/Cross-Appellee,
and
REGAL RIGGING & DEMOLITION, LLC
Defendant,
and
PLATINUM MECHANICAL, INC.
Third-Party Defendant-Appellee.
Before: MARKEY, P.J., and RONAYNE KRAUSE and BOONSTRA, JJ.
BOONSTRA, J.
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Defendant/Cross-Plaintiff/Third-Party Plaintiff, Orchard Hiltz & McCliment, Inc.
(OHM), appeals by right the trial court’s order dismissing this case, which plaintiff, the Estate of
Michael Koch, filed after its decedent was killed in an explosion at the Village of Dexter’s
(Dexter) Wastewater Treatment Plant. OHM was Dexter’s engineer. OHM filed a cross-
complaint seeking indemnity from contractor A. Z. Shmina, Inc. (Shmina) and subcontractor
Platinum Mechanical, Inc. (Platinum). The parties stipulated to dismiss the case after the trial
court denied OHM’s motion for summary disposition under MCR 2.116(C)(10) (no genuine
issue of material fact) and granted summary disposition in favor of Shmina and Platinum under
MCR 2.116(C)(10) on OHM’s claims. We affirm with respect to the trial court’s denial of
summary disposition in favor of OHM. We vacate the trial court’s grant of summary disposition
in favor of Shmina and Platinum and remand for further proceedings consistent with this
opinion.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
OHM initially contracted with Dexter in August 2011 to design upgrades to the sludge
handling process at Dexter’s wastewater treatment plant. The services included replacing
digester tank lids that had exceeded their design life. On June 4, 2012, OHM again contracted
with Dexter for services including “contract administration, construction engineering,
construction observation, and construction staking.” OHM’s contract incorporated a provision to
the effect that it had no responsibility for job-site safety.
Dexter hired Shmina as a contractor to improve the digester and sludge storage tanks.
Dexter’s contract with Shmina included general and supplementary terms, both of which
contained indemnification provisions. Shmina subcontracted with Platinum, which agreed to
provide labor and materials for digester lid demolition and installation. Platinum’s contract
incorporated the general, special, and supplementary terms of Shmina’s contract with Dexter.
Platinum in turn subcontracted with Regal Rigging & Demolition (Regal), awarding Regal a
contract to demolish, remove, and haul away two digester tank lids.
According to Jeremy Cook, Platinum’s job foreman, there were weekly progress
meetings in OHM’s job trailer. Cook stated that Chris Nastally of OHM discussed “anything
that had to do with that job” at the meetings, including job safety. Meeting minutes indicate that
a progress meeting was held on April 11, 2013, and that Nastally and Sherry Wright of OHM,
Cook and Kenneth Coon of Platinum, John Franklin of Shmina, and Jeff LaFave of Regal were
in attendance. The minutes indicated that Regal planned to start demolishing the digester lids on
April 12 and that the primary lid would be removed first. The minutes also indicated that the
only “hot” work would be to cut holes in the lids and pull them out. Coon testified that at the
meeting, Regal was instructed that it could only cut holes in the primary digester for rigging
purposes and “[t]here was to be no other cutting on that job site whatsoever.” Coon stated that
anyone on the job site should have known that there should be no cutting torches on the
secondary digester.
On April 22, 2013, the secondary digester exploded, resulting in Koch’s death. Wright,
an environmental engineer, testified that she was on the site the week before the explosion
because Nastally was on vacation. Wright testified that on the morning of the explosion, she
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walked the site with Nastally, talked about the areas that had been worked on, and told Nastally
that the secondary digester still contained sludge.
Franklin, Shmina’s project supervisor and site safety officer, testified that the primary
digester had been cleaned and purged. Franklin also testified that OHM, Platinum, and Nastally
would have known that only one digester could be worked on at a time. According to Franklin,
David McBride of Regal began cutting the side beams on the secondary digester tank at around
10:00 or 10:30 a.m., and Franklin was concerned about the methane in the digester.
Cook testified that Franklin approached him at around 10:00 a.m. and told him that “the
guys from Regal [were] doing some hot work and he was worried that they were blowing sparks
on the roof . . . .” Cook stated that he approached McBride, told him that he was not supposed to
be working on the secondary digester, and specifically mentioned that there could be methane
gas. Cook testified that McBride was given plywood to lean against the tank to finish cutting the
rail he was working on, which otherwise would have created a falling hazard.
Cook testified that he did not see McBride cutting again that day. However, Franklin
testified that he saw McBride again cutting at around 1:00 or 1:30 p.m. on the roof line.
According to Franklin, he went onto the roof and told McBride to stop working and that it was
dangerous to work there. Franklin stated that McBride shut off his cutting torch and walked over
to the primary digester, at which point Franklin left to have a conversation with Cook. McBride
testified that Cook told him to use a torch to remove the bolts and that if someone had told him to
stop cutting or to cut in a different location, he would have moved.
Nastally testified that he was on the roof for about four minutes before the explosion.
Nastally stated that if he was looking at someone who was cutting, he would have known they
were cutting, but he was not paying attention to whether there were sparks. When asked whether
he knew that the tanks contained methane gas when they had sludge in them, Nastally testified,
“I guess I never thought about that.” Nastally also testified that it was not his responsibility to
know whether there was methane gas or to make sure the digesters did not explode. Nastally
testified that he took a couple of pictures and then responded to an e-mail on his phone, which he
was looking down at when the explosion occurred.
McBride testified that in one of the photographs Nastally had taken, he can be seen
cutting the center bolts of the digester, that he had cut about thirty bolts, and that it took him
about five minutes to cut each bolt. McBride testified that when he is cutting, he creates sparks,
smoke, a loud noise, and a burnt metal smell. Wright testified that if she had taken the
photograph, she would have been concerned for the safety of everyone in the area, and that
anyone onsite should have informed Franklin about McBride’s activities.
The Estate sued Shmina and OHM,1 alleging in pertinent part that Dexter had warned
Shmina and OHM not to work on any digester until it was emptied and cleaned to reduce
1
The Estate did not name Platinum as a defendant because the Worker’s Compensation
Disability Act was the Estate’s only remedy against Platinum, who was Koch’s employer.
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methane hazards, the secondary digester had not been emptied, Shmina and OHM knew the
secondary digester still contained sludge, and that McBride was photographed cutting bolts on
the secondary digester within minutes of the explosion. The Estate alleged that McBride’s
cutting torch ignited methane in the secondary digester, which launched the lid into the air and
caused Koch’s death.
OHM filed a cross-claim against Shmina, alleging in pertinent part that Shmina had
breached its contract with OHM by refusing to indemnify and defend OHM against the Estate’s
complaint and by failing to purchase project insurance that would have protected OHM from
claims against it. OHM also filed a third-party complaint against Platinum, in which OHM made
the same allegations.
OHM moved for summary disposition under MCR 2.116(C)(10) against Platinum and
Shmina, alleging that OHM was an intended third-party beneficiary of Platinum’s and Shmina’s
contracts with Dexter and that Platinum and Shmina were required to indemnify, defend, and
hold harmless OHM. Platinum responded in part that the contract’s general and supplemental
provisions conflicted, creating an ambiguous agreement that the trial court should construe
against OHM. Shmina responded that OHM could not reasonably observe practices that its
engineers knew to be dangerous and do nothing. OHM replied that the parties’ contracts
required them to defend and indemnify OHM regardless of the cause of the accident and that the
contracts’ general and supplemental provisions did not conflict.
At an April 22, 2015 motion hearing, the trial court asked counsel if they were familiar
with MCL 691.991, also known as the indemnity invalidating act (the act), which no party had
cited. The trial court then read the statute. OHM argued that it was not a public entity under the
statute. The trial court ultimately denied OHM’s motion for summary disposition, ruling that
MCL 691.991 was clear and prohibited OHM from seeking indemnification for its own
negligence. The trial court subsequently denied OHM’s motion for reconsideration, and
reaffirmed its determination that MCL 691.991 applied retroactively. The court also stated, as an
alternate basis for its denial of summary disposition to OHM, that the internally inconsistent
nature of the indemnification clauses at issue created an ambiguity, and it accepted Shmina’s
position that an express indemnity contract should be construed strictly against the drafter.
Platinum and Shmina subsequently filed motions for summary disposition under
MCR 2.116(C)(10), alleging that the indemnification agreements were void or precluded by
MCL 691.991. Shmina argued that any indemnification would be based on OHM’s own
negligence. In response, OHM argued that it was not responsible to supervise or control
construction, that the statute did not apply to contracts between private entities, and that it
allowed indemnification as long as no party was held liable for more than its proportionate share
of fault.
The trial court summarized the question as whether MCL 691.991 eliminated or limited
indemnity provisions in public contracts. The trial court granted summary disposition in favor of
Platinum and Shmina on the basis that MCL 691.991 precluded indemnity and the parties’
contractual provisions were therefore void and could not be severed because they provided more
indemnification than the statute allowed. The parties then settled their claims with the Estate and
filed a stipulated order to dismiss the case.
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After oral argument, this Court, on its own motion, ordered the parties to file
supplemental briefs on the issue of the retroactive application of MCL 691.991(2).2 As we find
that the resolution of that issue disposes of the case before us, we address that issue first.
II. RETROACTIVITY OF MCL 691.991(2)
We hold that MCL 691.991(2) is subject to prospective application only, and that the trial
court therefore erred by granting summary disposition in favor of Platinum and Shmina
regarding their liability to OHM for indemnification. This Court reviews de novo issues of
statutory interpretation, Miller-Davis Co v Ahrens Constr, Inc, 495 Mich. 161, 172; 848 NW2d
95 (2014), and a court’s decision on a motion for summary disposition, Maiden v Rozwood, 461
Mich. 109, 118; 597 NW2d 817 (1999). A party is entitled to summary disposition under
MCR 2.116(C)(10) if “there is no genuine issue as to any material fact, and the moving party is
entitled to judgment . . . as a matter of law.” The trial court must consider all the documentary
evidence in the light most favorable to the nonmoving party. Maiden, 461 Mich. at 120. A
genuine issue of material fact exists if, when viewing the record in the light most favorable to the
nonmoving party, reasonable minds could differ on the issue. Gorman v American Honda Motor
Co, Inc, 302 Mich. App. 113, 115; 839 NW2d 223 (2013).
When interpreting a statute, this Court’s goal is to give effect to the intent of the
Legislature. United States Fidelity & Guaranty Co v Mich Catastrophic Claims Ass’n (On
Rehearing), 484 Mich. 1, 13; 795 NW2d 101 (2009). The language of the statute itself is the
primary indicator of the Legislature’s intent. Id. If the statutory language is unambiguous, this
Court must enforce the statute as written. Id. We read and understand statutory language in its
grammatical context unless the language indicates a contrary intention. Id.
“An indemnity contract creates a direct, primary liability between the indemnitor and the
indemnitee that is original and independent of any other obligation.” Miller-Davis, 495 Mich. at
173. Parties have broad discretion to negotiate such contracts. Id. However, MCL 691.991(2)
provides in pertinent part that in any contract for the maintenance or demolition of infrastructure,
a public entity shall not require a contractor to indemnify the public entity for any amount greater
than that contractor’s degree of fault:
When entering into a contract with a Michigan-licensed . . . professional
engineer . . . for the design of a building, . . . or other infrastructure, . . . or a
contract with a contractor for the construction, alteration, repair, or maintenance
of any such improvement, including moving, demolition, and excavating
connected therewith, a public entity shall not require the . . . professional
engineer . . . or the contractor to defend the public entity or any other party from
claims, or to assume any liability or indemnify the public entity or any other party
for any amount greater than the degree of fault of the . . . professional
engineer . . . or the contractor and that of his or her respective subconsultants or
2
Estate of Koch v A Z Shmina, Inc, unpublished order of the Court of Appeals, issued July 14,
2017 (Docket No. 332583).
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subcontractors. A contract provision executed in violation of this section is
against public policy and is void and unenforceable.
We agree that the application of MCL 691.991(2) would compel the result reached by the
trial court. But in this case, the parties entered into and executed their respective contracts in
2011 and 2012.3 MCL 691.991(2) became effective on March 1, 2013, and the digester
exploded on April 22, 2013. Accordingly, the contracts pertinent to this dispute were entered
into before the effective date of the statute.
The question therefore becomes whether MCL 691.991(2) may be applied retroactively.
Statutes are presumed to operate prospectively unless “the contrary intent [of the Legislature] is
clearly manifested.” See Frank W Lynch & Co v Flex Technologies, Inc, 463 Mich. 578, 583;
624 NW2d 180 (2001). This is especially true if retroactive application of a statute would impair
vested rights, create a new obligation and impose a new duty, or attach a disability with respect
to past transactions. See id. at 583, 588 (holding that a statute concerning sales commission
payments could not be applied retroactively because it would substantially alter the nature of
agreements entered into before the act).
This Court has held that a pre-2013 version of the indemnity invalidating act should be
given retroactive effect, at least when the negligent act occurred after the effective date of the
act. See Brda v Chrysler Corp, 50 Mich. App. 332, 335-336; 213 NW2d 295 (1973); compare
Blazic v FMC, 15 Mich. App. 377; 166 NW2d 636 (1968) (act did not apply when negligent act
occurred before the effective date). Indeed, it was Brda on which the trial court relied in this
case in finding MCL 691.991(2) to be retroactively applicable. However, the act, before its 2013
amendment, did not contain any of the language now found in MCL 661.991(2). Rather, the
entirety of the pre-2013 act read:
A covenant, promise, agreement or understanding in, or in connection with or
collateral to, a contract or agreement relative to the construction, alteration, repair
or maintenance of a building, structure, appurtenance and appliance, including
moving, demolition and excavating connected therewith, purporting to indemnify
the promisee against liability for damages arising out of bodily injury to persons
or damage to property caused by or resulting from the sole negligence of the
promisee or indemnitee, his agents or employees, is against public policy and is
void and unenforceable. [MCL 691.991 (prior to amendment by 2012 PA 468
(effective date March 1, 2013).]
This language closely mirrors the post-amendment language of MCL 691.991(1):
In a contract for the design, construction, alteration, repair, or maintenance of a
building, a structure, an appurtenance, an appliance, a highway, road, bridge,
water line, sewer line, or other infrastructure, or any other improvement to real
3
Platinum subcontracted with Regal on April 17, 2013, but that contract is not pertinent to the
issues before us.
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property, including moving, demolition, and excavating connected therewith, a
provision purporting to indemnify the promisee against liability for damages
arising out of bodily injury to persons or damage to property caused by or
resulting from the sole negligence of the promisee or indemnitee, his agents or
employees, is against public policy and is void and unenforceable.
Both the pre-2013 act and subsection (1) of the current act concern themselves with
prohibiting a general contractor from requiring its subcontractors to indemnify it for its sole
negligence. See Miller-Davis, 495 Mich. at 173; Robertson v Swindell-Dressier Co, 82 Mich
App 382, 389; 267 NW2d 131 (1978). By contrast, subsection (2), which took effect in 2013,
concerns itself with the issue at hand, which is the extent to which a public entity may require a
general contractor or subcontractor to indemnify it. And subsection (2) uses substantially
different language than the pre-amendment statute and the current subsection (1).
MCL 691.991(1) refers to sole negligence indemnification clauses in contracts in an essentially
timeless manner—if a contract exists with a sole negligence indemnification provision, that
provision is void and unenforceable. By contrast, MCL 691.991(2) speaks to contract formation
in three places: it provides that “when entering into a contract,” a public entity “shall not require”
a general contractor or subcontractor to indemnify it beyond that entity’s degree of fault. And “a
contract executed in violation of this section is against public policy and is void and
unenforceable.”4 (Emphasis added).
The Legislature’s use of different terms suggests different meanings. United States
Fidelity Ins & Guaranty Co v Mich Catastrophic Claims Ass’n (On Rehearing), 484 Mich. 1, 14;
795 NW2d 101 (2009). Further, our Supreme Court has discussed “two signals” that indicate the
Legislature’s intent that a statute be applied prospectively: the first is that the “Legislature
included no express language regarding retroactivity,” and the second is that the statute imposes
liability for failing to comply with its provisions. Frank W Lynch, 463 Mich. at 583-584. The
Legislature is presumed to know how to make clear, through express language, its intention that
a statute operate retroactively. See id. at 584 (citations omitted). And it is impossible for a party
to “comply” with a statute’s provision or provisions before that statute’s existence. Id.
Both of those signals are present here. MCL 691.991(2) contains no express language
concerning retroactivity. In fact, the 2013 amendment specified that “this amendatory act takes
effect March 1, 2013.” 2012 PA 468. And MCL 691.991(2) states that “[a] contract provision
executed in violation of this section is against public policy and is void and unenforceable.”
Before March 1, 2013, subsection (2) was not effective and contracts could not be “executed in
violation” of it. See Frank W Lynch, 463 Mich. at 584 (“Further indicating that the Legislature
intended prospective application of the SRCA is the fact that subsection 5 of the SRCA provides
4
A contract is generally executed (i.e., brought into its final, legally enforceable form) by
signing and delivering it. See Black’s Law Dictionary (10th ed). The contracts at issue provided
that they were effective on the date the last party signed and delivered them, if another date was
not specified. All relevant signature dates and specified effective dates for the contracts and
amendments at issue were in 2012.
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for liability if the principal ‘fails to comply with this section.’ Because the SRCA did not exist at
the time that the instant dispute arose, it would have been impossible for defendants to ‘comply’
with its provisions. Accordingly, this language supports a conclusion that the Legislature
intended that the SRCA operate prospectively only.”).
We conclude that the language of the act does not clearly manifest the Legislature’s
intent that it be applied retroactively to contracts entered into and executed before its effective
date. Frank W Lynch, 463 Mich. at 583. The trial court therefore erred by applying
MCL 691.991(2) to the claims before it. Accordingly, we vacate the trial court’s grant of
summary disposition in favor of Shmina and Platinum on the ground that MCL 691.991(2)
rendered void and unenforceable the indemnification provisions at issue, and remand for
reinstatement of OHM’s indemnity claims.
III. CONTRACTUAL AMBIGUITY
Shmina argues that the trial court’s determination that the contracts were ambiguous
provides an alternative basis for granting summary disposition in its favor. More specifically,
Shmina contends that the contractual ambiguity must be construed against OHM as the drafter of
the contracts, and that, therefore, this Court should hold that the broader indemnification
provision of the supplemental conditions may not be enforced by OHM. OHM argues that the
contractual provisions are not ambiguous because they are complementary.
We agree with the trial court that the contractual indemnification provisions are
ambiguous, and for that reason we affirm the trial court’s denial of summary disposition in favor
of OHM. However, the trial court did not rely on the contractual ambiguity as a basis for
granting summary disposition in favor of Shmina or Platinum, and we decline to do so in the first
instance. Rather, we conclude that the ambiguity presents a genuine issue of material fact
requiring a remand to the trial court.
This Court reviews de novo the proper interpretation of a contract, Miller-Davis, 495
Mich. at 172, and the legal effect of a contractual clause, Quality Prods & Concepts Co v Nagel
Precision, Inc, 469 Mich. 362, 369; 666 NW2d 251 (2003). If a contract’s language is
unambiguous, we interpret the contract as a matter of law. Klapp v United Ins Group Agency,
Inc, 468 Mich. 459, 467; 663 NW2d 447 (2003). A contract is ambiguous when its provisions
irreconcilably conflict. Id. A court may not ignore provisions of a contract in order to avoid
finding an ambiguity. Id. Generally, “the meaning of an ambiguous contract is a question of fact
that must be decided by the jury.” Id. at 469.
Dexter’s contract with Shmina provided that it expressly incorporated general conditions,
supplemental conditions, insurance requirements, specifications, and drawings. Platinum’s
contract with Dexter included its own contractual provisions as well as an incorporation of
Shmina’s contract with Dexter. When a contract incorporates a writing by reference, it becomes
part of the contract and courts must construe the two documents as a whole. Whittlesey, 217
Mich. at 627.
The general conditions provided in pertinent part as follows:
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To the fullest extent permitted by Laws and Regulations, Contractor shall
indemnify and hold harmless Owner and Engineer . . . against all claims, costs,
losses, and damages . . . arising out of or relating to the performance of the
Work . . . but only to the extent caused by any negligent act or omission of the
Contractor, any Subcontractor . . . or any individual or entity directly or
indirectly employed by any of them . . . . [Article 6.20(A) (emphasis added).]
General conditions Article 6.20(C)(2) also provided that “[t]he indemnification obligations of the
Contractor under Paragraph 6.20.A shall not extend to the liability of the Engineer . . . arising out
of . . . giving directions or instructions, or failing to give them, if that is the primary cause of the
injury or damage.”
The supplemental conditions “amend[ed] or supplement[ed] the Standard General
Conditions of the Construction Contract . . . as indicated below. All provisions which are not so
amended or supplemented remain in full force and effect.” The supplemental conditions deleted
Articles 5.04 to 5.10 from the general conditions and added to Article 5 language that “[t]he
Insurance Specifications 00 80 00, of this Contract, following the Supplementary Conditions,
shall be added to Article 5 of the General Conditions, regarding insurance requirements.” The
insurance specifications, provided as part of the supplemental conditions, required Shmina
indemnify OHM as follows:
The CONTRACTOR agrees to indemnify, defend, and hold harmless the
OWNER and ENGINEER, their consultants, agents, and employees, from and
against all loss or expense (including costs and attorney’s fees), by reason of all
liability imposed by law upon the OWNER and ENGINEER, their consultants,
agents, and employees for all damages . . . of bodily injury, including death at any
time, resulting from, arising out of or in consequence of the performance of this
work, whether such injuries to persons or damage to property is due, or claimed
to be due, to the negligence of the CONTRACTOR, his subcontractors, the
OWNER, the ENGINEER, and their consultants, agents, and employees, except
only such injury or damage as shall have been occasioned by the sole negligence
of the OWNER, the ENGINEER, and their agents and/or consultants. [Section 00
80 00 (formatting omitted).]
Because the supplemental conditions did not modify Article 6.20, that provision remained in full
force and effect.
These provisions irreconcilably conflict because it is not possible for Shmina or Platinum
to both indemnify OHM for (1) all damages, regardless of who caused them, under Section 00
80 00, and (2) some of the damages, only if Shmina or Platinum or its subcontractors caused
them, under Article 6.20. Therefore, the trial court did not err by holding that these provisions in
Shmina’s and Platinum’s contracts are ambiguous.
But the trial court did not grant summary disposition in favor of Shmina or Platinum on
this basis. The trial court only relied on the contractual ambiguity as an alternative basis for
denying OHM’s motion for summary disposition. And we conclude that, because of the
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contractual ambiguity, it was appropriate for the trial court to decline to grant summary
disposition in favor of OHM.
However, it would have been inappropriate, absent consideration of relevant extrinsic
evidence and other means and rules of contract interpretation, for the trial court to have relied on
the contractual ambiguity as a basis for granting summary disposition in favor of Shmina or
Platinum, and the trial court did not in fact do so. Generally, “the meaning of an ambiguous
contract is a question of fact that must be decided by the jury.” Klapp, 468 Mich. at 469. The
relevance, if any, of the rule of contra proferentem that Shmina asks us to employ, is generally
for the jury, not the trial court (or this Court), to consider, and then only in certain circumstances.
See id., 468 Mich at 471 (“In interpreting a contract whose language is ambiguous, the jury
should also consider that ambiguities are to be construed against the drafter of the contract. This
is known as the rule of contra proferentem. And this rule is only to be applied if all conventional
means of contract interpretation, including the consideration of relevant extrinsic evidence, have
left the jury unable to determine what the parties intended their contract to mean. . . . If the
language of a contract is ambiguous, and the jury remains unable to determine what the parties
intended after considering all relevant extrinsic evidence, the jury should only then find in favor
of the nondrafter of the contract pursuant to the rule of contra proferentem. In other words, if a
contract is ambiguous regarding whether a term means ‘a’ or ‘b,’ but relevant extrinsic evidence
leads the jury to conclude that the parties intended the term to mean ‘b,’ then the term should be
interpreted to mean ‘b,’ even though construing the document in the nondrafter’s favor pursuant
to an application of the rule of contra proferentem would produce an interpretation of the term as
‘a.’ ”) (citation omitted) (emphasis added). Particularly given that the trial court did not grant
summary disposition in favor of Shmina or Platinum on this basis, and did not articulate any
consideration of relevant extrinsic evidence or other means and rules of contract interpretation,
we decline to apply the contra proferentem canon of construction in the first instance at this
juncture of the proceedings.
IV. UNRESOLVED CLAIMS
Finally, OHM argues that the trial court improperly failed to resolve its cross-claims that
Shmina and Platinum breached their contracts by failing to purchase sufficient project liability
insurance. We conclude that OHM has waived this issue by stipulating to dismiss the case.
“A stipulation is an agreement, admission or concession made by the parties in a legal
action with regard to a matter related to the case.” People v Metamora Water Serv, Inc, 276
Mich. App. 376, 385; 741 NW2d 61. A stipulation is construed in the same manner as a contract.
Bd of Co Rd Comm’rs for Eaton Co v Schultz, 205 Mich. App. 371, 379; 521 NW2d 847 (1994).
When a stipulation is unambiguous, a court will enforce it as written. Id. at 380. A waiver is a
“voluntary and intentional abandonment of a known right.” Quality Prods, 469 Mich. at 374. A
party may not appeal an error that the party created. Clohset v No Name Corp, 302 Mich. App.
550, 555; 840 NW2d 375 (2013).
In this case, the parties filed a stipulated order to dismiss the case. The order stated that it
“resolve[d] the last pending claim and close[d] the case.” By signing this stipulation, OHM
agreed that there were no additional claims that the trial court should address. We will not allow
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OHM to appeal an error that OHM itself helped create and conclude that OHM has waived this
issue by stipulating to dismiss the case.
Affirmed with respect to the trial court’s denial of summary disposition in favor of OHM.
Vacated with respect to the trial court’s grant of summary disposition in favor of Shmina and
Platinum. Remanded for reinstatement of OHM’s claims for indemnification and further
proceedings consistent with this opinion. Because the principal issue in this case came before
this Court after the trial court raised the application of MCL 691.991(2) sua sponte, and after this
Court ordered supplemental briefing on the issue on its own motion, and because the issue is of
public importance, each party shall bear its own costs. MCR 7.219(A)(1). We do not retain
jurisdiction.
/s/ Mark T. Boonstra
/s/ Jane E. Markey
/s/ Amy Ronayne Krause
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