HILL
v.
SULLIVAN EQUIPMENT COMPANY
Docket No. 77-1902.
Michigan Court of Appeals.
Decided November 6, 1978.Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen, for defendant and third-party plaintiff-appellant, Sullivan Equipment Company.
Sommers, Schwartz, Silver, Schwartz & Tyler, P.C., for third-party defendant-appellee, Armen-Berry Company.
Before: M.F. CAVANAGH, P.J., and BRONSON and D.F. WALSH, JJ.
BRONSON, J.
Robert Hill, the principal plaintiff, was injured at work when he reached into a screw conveyor and caught his arm in the screw mechanism. Hill sued defendant Sullivan Equipment Co, which designed, manufactured and installed the *696 conveyor for Hill's employer, Armen-Berry Company.
Sullivan filed a third-party complaint against Armen-Berry which alleged that Sullivan had originally designed the machine with a protective cover, but that Armen-Berry had explicitly rejected this design and insisted that the machine be installed without the cover. The third-party complaint further alleged that Armen-Berry stated to Sullivan that the machine would be used in such a manner that the screw conveyor would be inaccessible to workmen while the machine was in operation.
The trial court granted Armen-Berry's summary judgment motion on the third-party complaint, holding that it failed to state a cause of action for indemnity. See GCR 1963, 117.2(1).
Defendant Sullivan alleges alternatively that it is entitled to common law indemnity or indemnity under an implied contract.
I
Common law indemnity is based on the equitable principle that where the wrongful act of one results in another being held liable, the latter party is entitled to restitution from the wrongdoer. See, e.g., Provencal v Parker, 66 Mich. App. 431; 239 NW2d 623 (1976). See generally Prosser, Torts (4th ed), § 51. In the typical case, indemnity is available only if the party seeking it is not "actively" negligent. Husted v Consumers Power Co, 376 Mich. 41; 135 NW2d 370 (1965), Nanasi v General Motors Corp, 56 Mich. App. 652; 224 NW2d 914 (1974), McLouth Steel Corp v A E Anderson Construction Corp, 48 Mich. App. 424; 210 NW2d 448 (1973). In determining this, the court looks to *697 the primary plaintiff's complaint. If that complaint alleges only "active" negligence, as opposed to derivative liability, the defendant is not entitled to common law indemnity. Prosky v National Acme Co, 404 F Supp 852 (ED Mich, 1975) (decided under Michigan law), Minster Machine Co v Diamond Stamping Co, 72 Mich. App. 58; 248 NW2d 676 (1976). Accord, Jordan v Solventol Chemical Products, Inc, 74 Mich. App. 113; 253 NW2d 676 (1977).
In the case at bar, plaintiffs' complaint does not allege vicarious liability; the trial court, therefore, correctly determined that defendant was not entitled to common law indemnity. Prosky v National Acme Co, supra, Diekevers v SCM Corp, 73 Mich. App. 78; 250 NW2d 548 (1976), Minster Machine Co v Diamond Stamping Co, supra.
II
The other basis for indemnity raised by Sullivan is an implied indemnity contract. This basis has been recognized in Michigan, see, e.g., Dale v Whiteman, 388 Mich. 698, 705; 202 NW2d 797 (1972), citing Diamond State Telephone Co v University of Delaware, 269 A2d 52 (Del, 1970). See also Ryan Stevedoring Co, Inc v Pan-Atlantic Steamship Corp, 350 U.S. 124; 76 S. Ct. 232; 100 L. Ed. 133 (1956). To determine whether a third-party plaintiff has stated a cause of action for indemnity based on an implied contract, the court must look to the third-party complaint as well as the original complaint. See Diekevers v SCM Corp, supra, at 81. As this case arises on summary judgment for failure to state a cause of action, we accept as true third-party plaintiff's well-pleaded facts and inquire whether these claims are so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. *698 Borman's, Inc v Lake State Development Co, 60 Mich. App. 175, 179-180; 230 NW2d 363 (1975).
In the case at bar, Sullivan alleged in its third-party complaint that Armen-Berry unqualifiedly rejected a proposed protective cover for the machine which injured plaintiff and advised Sullivan that the machinery would be situated and used so that it would be inaccessible to workers while in operation. We believe these allegations are sufficient to state a cause of action for indemnity. I.e., by expressly rejecting the proposed cover and undertaking to situate the conveyor so that it would be inaccessible, Armen-Berry may have impliedly agreed to indemnify Sullivan should Sullivan be held liable for Armen-Berry's rejection of the cover or failure to use the machine as proposed.
As the third-party complaint thus stated a cause of action for indemnity, summary judgment should not have been granted.
Reversed and remanded. Costs to appellant.
M.F. CAVANAGH, P.J., concurred.
D.F. WALSH, J. (dissenting).
I must respectfully dissent. Whether indemnification is based upon the common law indemnity doctrine or an implied contract of indemnity there can be no recovery on this theory unless the party seeking recovery is free from active negligence.
In Dale v Whiteman, 388 Mich. 698; 202 NW2d 797 (1972), relied upon by the majority, the Supreme Court discussed various theories of indemnity and concluded at 705:
"Whatever theory may be followed by the courts, the principle has been summed up in 42 CJS as follows:
`It is a well-recognized rule that an implied contract of indemnity arises in favor of a person who without *699 any fault on his part is exposed to liability and compelled to pay damages on account of the negligence or tortious act of another, the former having a right of action against the latter for indemnity * * *.' (42 CJS, § 21, p 596.)" (Emphasis added.)
In this case there can be no recovery against Sullivan Equipment Co. unless active negligence is proven in the principal suit. If active negligence is proven, there is no right of indemnification. Diekevers v SCM Corp, 73 Mich. App. 78; 250 NW2d 548 (1976).
I would affirm the trial court.