Parliament Construction Co. v. Beer Precast Concrete, Ltd.

114 Mich. App. 607 (1982) 319 N.W.2d 374

PARLIAMENT CONSTRUCTION COMPANY
v.
BEER PRECAST CONCRETE, LIMITED

Docket No. 50942.

Michigan Court of Appeals.

Decided April 5, 1982.

Kerr, Russell & Weber (by James R. Dashiell), for Parliament Construction Company.

Harvey, Kruse, Westen & Milan, P.C. (by Richard A. Harvey and Dale R. Burmeister), for Beer Precast Concrete, Limited.

Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen (by Dwight G. Conger and Theresa M. Smith), for George H. Davis, Inc.

Johnson, Campbell & Moesta (by Reginald Johnson), for Burr Lathing and Plastering, Inc.

Before: CYNAR, P.J., and V.J. BRENNAN and H.E. DEMING,^[*] JJ.

CYNAR, P.J.

Third-party plaintiff, Parliament Construction Company, appeals from a judgment of no cause of action entered against it on January 4, 1980, in response to its claims for contribution against third-party defendants, Beer Precast Concrete, Limited, and Burr Lathing and Plastering, Inc.

The instant case arose due to injuries suffered by one Casimir Toporek on May 13, 1975, while he was employed by added party defendant George H. Davis, Inc. Toporek had been working on the construction of a four-story commercial office building in Southfield, Michigan, when he fell from the fourth floor, sustaining severe injuries. Third-party plaintiff, Parliament Construction Company, was the general contractor on the project.

The parties to this litigation were as follows:

Casimir Toporek and his wife: the injured workman and his wife, who were the principal plaintiffs;

Parliament Construction Company: the general contractor on the project;

Burr Lathing and Plastering, Inc.: a subcontractor employed by Parliament to fireproof the building as it was constructed;

Beer Precast Concrete, Limited: a Canadian corporation which contracted with Parliament to provide precast concrete panels for the building; and

George H. Davis, Inc.: a subcontractor employed by Beer to install the concrete panels, and the employer of Mr. Toporek.

Toporek testified that he slipped and went through a safety barricade and fell 40 feet to the ground as he was swinging a welding lead in an attempt to toss it to another worker on the roof above him. Toporek testified that he slipped on fireproofing material which had washed down from the beams on the roof because of a rain storm a few days before. This material is very slippery. Other testimony also indicated the existence of fireproofing material on the floor in the area in which Toporek had been working.

Toporek brought suit against Parliament Construction Company and Burr Lathing and Plastering, Inc., alleging that Parliament, as the general contractor, had failed to maintain a safe workplace, failing to insure that surface areas were nondangerous, failing to inspect the premises for safety, and failing to provide safe guardrails. Toporek alleged that Burr was negligent in its fire-proofing operations and in its cleanup of the work area.

Parliament subsequently brought a cross-claim against Burr and a third-party claim against Beer Precast for common-law and contractual indemnity and for contribution. Beer Precast brought a fourth-party complaint against its subcontractor, George H. Davis, Inc., for common-law and contractual indemnity.

On December 6, 1979, an order was entered dismissing the claims of the Toporeks against Burr. This order also severed the claims of Parliament against Burr from the Toporek suit. In another order of the same date, the third-party claims of Parliament against Beer and the fourth-party claims of Beer against Davis were severed.

An order for a consent judgment in favor of the Toporeks against Parliament was entered on December 17, 1979. The claims of the Toporeks were settled for $540,000.

Parliament then proceeded to trial against Beer and Burr, and Beer proceeded against Davis.

After the evidence had been presented, motions were made for directed verdicts on Parliament's theories of common-law indemnity, contractual indemnity and contribution against Beer and Burr. The trial judge ruled that Parliament was not entitled to pursue its claims of common-law indemnity against Beer and Burr. The case went to the jury on Parliament's claims of contribution against Beer and Burr.

In response to special questions, the jury found that Beer was not negligent, that Burr was not negligent, and that, although Davis was negligent, Davis's actions were not a proximate cause of Toporek's injuries.

An order for a judgment of no cause of action as to Beer, Burr and Davis was entered against Parliament on January 4, 1980.

Parliament's motion for a new trial or for a judgment notwithstanding the verdict was denied on March 28, 1980.

Parliament then brought this appeal as of right.

I

The trial court did not err in striking Parliament Construction Company's claims of common-law indemnity. Such indemnity is only available to compensate a party held vicariously liable to another through no fault of his own. Peeples v Detroit, 99 Mich. App. 285, 292; 297 NW2d 839 (1980). Whether a party is "passively" (vicariously) liable or "actively" liable for purposes of determining the availability of common-law indemnity is to be determined from the primary plaintiff's complaint. Id., 292-293.

The primary plaintiff's complaint alleged active negligence, and the trial court properly dismissed Parliament's common-law claim of indemnity for that reason.

There is no merit to Parliament's assertion that a judgment of liability determining its active negligence is required to defeat its common-law indemnity claim. Although such a judgment was mentioned in Darin & Armstrong v Ben Agree Co, 88 Mich. App. 128, 133; 276 NW2d 869 (1979), lv den 406 Mich. 1007 (1979), it was clearly not necessary to the decision, and subsequent cases have relied on the primary plaintiff's complaint as the source for determining active negligence. Brown v Unit Products Corp, 105 Mich. App. 141, 145-147; 306 NW2d 425 (1981). Duhame v Kaiser Engineering of Michigan, Inc, 102 Mich. App. 68, 71-72; 300 NW2d 737 (1980).

Parliament's contention that Funk v General Motors Corp, 392 Mich. 91; 220 NW2d 641 (1974), in which the Supreme Court enunciated the general principle that the ultimate responsibility for safety in a common work area lies with the general contractor, is limited to situations where no safety precautions of any kind were taken has been rejected in Tulkku v Mackworth Rees Division of Avis Industries, Inc, 406 Mich. 615, 621; 281 NW2d 291 (1979). Testimony at trial established Parliament's responsibility for safety equipment on the project, and specifically for the safety barricades, one of which was allegedly either faulty or not in place at the point where the primary plaintiff fell from the building.

In any event, Parliament's claim of common-law indemnity would not have succeeded. By special verdict, both Beer and Burr were found not to have been negligent, and Davis's negligence was found not to be a proximate cause of the primary plaintiff's injuries.

II

Parliament claims that the trial court should have applied comparative negligence to the instant case.

Parliament's arguments on this point are unpersuasive. The institution of comparative negligence, Placek v Sterling Heights, 405 Mich. 638; 275 NW2d 511 (1979), does not affect the rights of contribution among joint tortfeasors as set forth in MCL 600.2925a; MSA 27A.2925(1). Friend v Campbell, 102 Mich. App. 278, 284; 301 NW2d 503 (1980), Weeks v Feltner, 99 Mich. App. 392; 297 NW2d 678 (1980). Consideration of the relative degrees of fault on the part of individual tortfeasors is prohibited in determining rights of contribution among joint tortfeasors. MCL 600.2925b; MSA 27A.2925(2).

Since there was no error in the trial court's refusal to apply comparative negligence, we need not reach the question of whether the issue is moot by reason of the jury findings that none of the parties from whom Parliament claims contribution were liable. It appears, however, that this fact would ultimately defeat any claim of contribution.

III

There is no merit to Parliament's claim that Beer was negligent as a matter of law and that the trial court should therefore have granted Parliament's motion for judgment notwithstanding the verdict as to Beer.

This claim fails because there is no support for a finding of proximate cause. We do not accept Parliament's contention that the trial court's denial of the motion in question contradicts the jury's special finding that the negligence of Davis was not a proximate cause of the accident. This consideration is sufficient to deal with the issue, although there are several other flaws in Parliament's argument on this issue which we find unnecessary to mention.

IV

Finally, the trial court did not err in striking Parliament's claim for contractual indemnity. The indemnity clause which Parliament relies upon in the instant case is identical to the one in Peeples, supra, where it was found not to be specific and clear enough to support an inference of an intention to indemnify a general contractor against its own negligence.

Even if the matter were remanded to the trial court for further findings of fact on the parties' intentions, the language could not be construed to indemnify Parliament for its sole negligence because that would be void as against public policy pursuant to MCL 691.991; MSA 26.1146(1). See also Hayes v General Motors Corp, 106 Mich. App. 188, 194; 308 NW2d 452 (1981).

Because the jury found no negligence on the part of Beer and Burr, they are not available to indemnify Parliament because to do so would be to indemnify Parliament for its own sole negligence. Therefore, any error the trial court made in refusing to allow the question of contractual indemnity to go to the trier of fact was rendered harmless by the jury's subsequent finding of no negligence by the parties from whom Parliament seeks contractual indemnification.

For these reasons, we conclude that there was no reversible error committed by the trial court in the instant case. The judgment against Parliament Construction Company is affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.