If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
GEORGE KRAWCZYNSKI, UNPUBLISHED
March 4, 2021
Plaintiff,
V No. 344965
Branch Circuit Court
DUNIGAN BROS, INC., and BLU A. BRODOCK, LC No. 16-110613-NI
Defendants-Third Party Plaintiffs-
Appellants,
and
MICHIGAN PAVING AND MATERIALS
COMPANY,
Defendant-Third Party Defendant-
Appellee,
and
ACCESSPOINT HR SERVICES, doing business as
ACCESS EMPLOYMENT STAFFING, INC.,
Defendants.
Before: GADOLA, P.J., and STEPHENS and SHAPIRO, JJ.
PER CURIAM.
Defendants and third-party plaintiffs, Blu A. Brodock and Dunigan Bros., Inc., appeal by
leave granted1 the trial court’s orders denying their motion for summary disposition under MCR
2.116(C)(10) and granting summary disposition to defendant and third-party defendant Michigan
1
Krawczynski v Dunigan Bros Inc, unpublished order of the Court of Appeals, entered January
14, 2019 (Docket No. 344965).
-1-
Paving and Materials Company (Michigan Paving) under MCR 2.116(I)(2). We reverse and
remand.
I. BACKROUND
This case concerns a traffic incident which occurred on October 17, 2016 when the work
van driven by the plaintiff George Krawczynski collided with a front-end loader driven by
defendant Brodock in the course of his employment for defendant Dunigan. The collision occurred
when Brodock backed across W Chicago from south Freemont onto North Freemont. Vehicles
owned by Michigan Paving were parked in the center turn lane of West Chicago and Freemont
facing west. In his then most recent amended complaint, Krawczynski alleged that his injuries
were caused by the negligence of both Brodock and his employer Dunigan, and Michigan Paving
whose trucks were parked. The issue of negligence is actively contested among the parties but is
not the principle focus of this appeal. Instead, this appeal concerns the interplay between the
contractual indemnification language in the contracts between Dunigan and its subcontractors.
At the time of the incident, Dunigan was the general contractor for a project for the city of
Coldwater (city). Under the written contract, Dunigan, as general contractor, was responsible for
overall project execution and was obliged to indemnify the city and hold it harmless for any and
all claims arising from the contract. Dunigan was empowered to hire subcontractors for the work,
was required to indemnify the city against any claims arising from the work of the subcontractors.,
and obliged to act as general contractor for the city. Dunigan engaged several sub-contractors for
the project, including defendant Michigan Paving. Dunigan’s subcontract with Michigan Paving
included indemnification and hold harmless language.
Krawczynski filed suit against the driver, Brodock, and his employer , Dunigan Bros., in
November 2016. Within months Brodock and Dunigan filed notice of non-party fault against
Michigan Paving. Krawczynski then amended his complaint to include negligence claims against
Michigan Paving. Dunigan filed a third party complaint against Michigan Paving asserting a
contractual breach for failing to assume its defense against Krawczynski and for indemnification
under the subcontract. Michigan Paving denied that it had any obligation to indemnify or defend
Dunigan because Michigan Paving was not performing covered work at the time of incident.
The parties engaged in a vigorous pre-trial process including several amended complaints,
counter-complaints, and amended answers. The vehicle drivers, defendants’ supervisors, and risk
management personnel were deposed. The responding officer who issued a citation to Brodock
was also deposed. Krawczynski engaged an expert witness on accident reconstruction and his
deposition was taken. Dunigan and Michigan Paving filed several iterations of motions for
summary relief. On May 22, 2018, the court granted summary relief to Michigan Paving and
denied the counter motion of Dunigan. The trial court made multiple findings of fact. It found
that Michigan Paving was only required to indemnify Dunigan and its employees for claims that
arose out of or were the result of Michigan Paving’s work and that under the Subcontract Michigan
Paving was only required to provide traffic regulator control when it was engaged in top course
paving. It found that the evidence demonstrated Michigan Paving was not engaged in top course
paving at the site of the accident, thereby not triggering the requirement to indemnify Dunigan and
Brodock. After denial of both motions to reconsider and renewed motions for relief, the parties
were granted leave to appeal to this Court.
-2-
II. STANDARD OF REVIEW
“A trial court’s grant or denial of summary disposition under MCR 2.116(C)(10) is
reviewed de novo on appeal.” Liberty Mut Ins Co v Michigan Catastrophic Claims Ass’n, 248
Mich App 35, 40; 638 NW2d 155 (2001). “A motion brought under MCR 2.116(C)(10) tests the
factual support of a plaintiff’s claim and is reviewed by considering the pleadings, admissions, and
other evidence submitted by the parties in a light most favorable to the nonmoving party.” Dept
of Transp v Natl Interstate Ins Co, 331 Mich App 112, 117; 951 NW2d 113 (2019). “Summary
disposition is proper under MCR 2.116(C)(10) if the documentary evidence shows that there is no
genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.”
Universal Underwriters Group v Allstate Ins Co, 246 Mich App 713, 720; 635 NW2d 52 (2001).
“A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to
the opposing party, leaves open an issue upon which reasonable minds might differ.” West v Gen
Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). “If it appears to the court that the
opposing party, rather than the moving party, is entitled to judgment, the court may render
judgment in favor of the opposing party.” MCR 2.116(I)(2).
“We also review de novo the interpretation of a contract and the legal effect of one of its
clauses.” Auto Owners Ins Co v Seils, 310 Mich App 132, 145; 871 NW2d 530 (2015).
III. ANALYSIS
This case requires us to interpret multiple provisions of the parties’ Subcontract. “The goal
of contract interpretation is to first determine, and then enforce, the intent of the parties based on
the plain language of the agreement.” Harbor Park Market, Inc v Gronda, 277 Mich App 126,
130; 743 NW2d 585 (2007). “An indemnity contract is interpreted in accordance with the rules of
construction that govern any other type of contract.” Auto-Owners Ins Co v Campbell-Durocher
Group Painting & Gen Contracting, LLC, 322 Mich App 218, 225; 911 NW2d 493 (2017). A
“court must look at the contract as a whole and give meaning to all terms.” Auto–Owners Ins Co
v Churchman, 440 Mich 560, 566; 489 NW2d 431 (1992). Unambiguous contract terms must be
enforced as written. Rory v Continental Ins Co, 473 Mich 457, 461; 703 NW2d 23 (2005). A
dictionary may be consulted to determine a word’s common and ordinary meaning. Krohn v
Home–Owners Ins Co, 490 Mich 145, 156; 802 NW2d 281 (2011). “[T]he threshold question
whether a contract’s indemnity clause applies to a set of facts” is determined by a “straightforward
analysis of the facts and the contract terms.” Miller-Davis Co v Ahrens Constr, Inc, 495 Mich 161,
174; 848 NW2d 95 (2014) (quotation marks and citation omitted). “Where parties have expressly
contracted for indemnification, the extent of the duty must be determined from the language of the
contract.” Id. (quotation marks and citation omitted). “A contract of indemnity should be
construed so as to cover all losses, damages, or liabilities to which it reasonably appears to have
been the intention of the parties that it should apply ....” Title Guaranty & Surety Co v Roehm,
215 Mich 586, 592; 184 NW 414 (1921) (quotation marks and citation omitted).
Dunigan and Brodock argue that the trial court erred when it denied their motion for
summary disposition under MCR 2.116(C)(10) and granted Michigan Paving’s motion under
MCR 2.116(I)(2), finding that Michigan Paving was not required to indemnify and defend Dunigan
and Brodock against Krawczynski’s claims. We agree.
-3-
Two indemnification provisions are at issue. Both are contained in Article 9 of the
Subcontract. The first provides:
9.1 Indemnification. To the fullest extent permitted by law, Subcontractor shall
indemnify, defend and hold harmless the Contractor, Owner, . . . and . . . their . . .
employees . . .from and against claims, damages, losses and expenses, including
but not limited to attorneys’ fees, arising out of or resulting from performance of
the Work, provided that such claim, damage, loss or expense is attributable to
bodily injury, sickness, disease or death, or to injury to or destruction of tangible
property . . . but only to the extent caused or alleged to be caused in whole or in
any part by the negligent acts or omissions of the Subcontractor, anyone directly or
indirectly employed by the Subcontractor or anyone for whose acts the
Subcontractor may be liable, regardless of whether or not such claim, damage, loss
or expense is caused in part by a party indemnified hereunder. . . . .
Under section 9.1, Michigan Paving must indemnify Dunigan and Brodock “to the fullest extent
permitted by law “from and against claims: 1) arising out of or resulting from the performance of
Michigan Paving’s work, 2) attributable to bodily injury, sickness, disease or death, or to injury to
or destruction of tangible property, and 3) caused or alleged to be caused all or in part by Michigan
Paving or its employees.
The second provision provides:
9.3 Additional Indemnification. Subcontractor shall indemnify, defend and hold
harmless the Indemnified Parties from and against any and all claims, demands,
suits, actions, expenses, judgments, losses and liabilities, including fines and
penalties, costs and attorneys’, consultants’, and experts’ fees as a result of
Subcontractor’s actual or alleged failure to perform this Subcontract in accordance
with the terms of this Agreement and the Contract Documents. The foregoing
obligations of Subcontractor shall include, but are not limited to, indemnifying,
defending and holding harmless from claims made by third parties against any
Indemnified Party. Subcontractor’s liability includes, but is not limited to, . . . (iv)
liability to third parties. . .; . . . and (viii) attorneys’ fees and related costs.
Subcontractor’s actual or alleged failure to perform shall include the actual or
alleged failure of Subcontractor’s lower-tier Subcontractors or suppliers to perform.
...
Under section 9.3, Michigan Paving was required to indemnify Dunigan and Brodock “from and
against all claims . . . as a result of [Michigan Paving’s] actual or alleged failure to perform this
Subcontract.”
In his first complaint, Krawczynski alleged that his injuries were the result of Brodock’s
negligent operation of the front end loader and Dunigan’s failure to provide supervision and safety
at the construction site. The affirmative defenses filed by Dunigan and Brodock alleged inter alia
that: Krawczynski was comparatively negligent and, the superseding and intervening negligence
of others caused Krawczynski’s injuries. Dunigan and Brodock reserved the right to file claims
against non-parties under MCL 600.2957 et seq. The notice of non-party fault and second
-4-
amended complaint which added Michigan Paving as a defendant, alleged Michigan Paving was
negligent inter alia “regarding construction services, supervision, safety, traffic safety, traffic
control, interference with traffic, warnings, flagging, and traffic regulator control in the area of
and at the time of the accident[.]” The second amended complaint also alleged Dunigan was
vicariously liable for Michigan Paving’s negligence for having entered into the Subcontract with
Michigan Paving for the work to be performed at the site of the accident. The third party complaint
further alleged that under the Subcontract: 1) the duties and obligations charged by Krawczynski
against Dunigan and Brodock were primarily the duties of Michigan Paving; 2) Michigan Paving
was required to indemnify Dunigan and Brodock against Krawczynski’s claims; and 3) that
Michigan Paving breached the Subcontract by failing to obtain the required insurance for Dunigan
and Brodock.
Dunigan and Brodock argue that the trial court erred in finding that the indemnification
clauses did not cover Krawczynski’s claims. They argue that Michigan Paving’s safety
responsibilities and duties were not confined to only when Michigan Paving was actually engaged
in top course paving at the site of the accident. In support of this contention, Dunigan and Brodock
point to the italicized language in section 1.1 of the Subcontract below, which states that the
Subcontractor’s Work includes not only the work described in Exhibit A, but also “all work
incidental thereto.” Michigan Paving opposes this interpretation, and instead asserts that its
responsibilities under the Subcontract were limited to the performance of its work as described in
Exhibit A to the Subcontract, also below.
“Subcontractor’s Work” is defined in Article 1, section 1.1:
1.1 Subcontractor’s Work. Subcontractor shall perform all work and shall furnish
all supervision, labor, materials, layout, hoisting, tools, equipment, supplies, shop
drawings, samples, insurance and all other things necessary for the construction and
completion of the work described in Exhibit A attached hereto and incorporated
herein, together with all work incidental thereto (collectively the “Subcontractor’s
Work”) . . . [Emphasis added].
Exhibit A provides:
-5-
Reading section 1.1 and Exhibit A together, the “Subcontractor’s Work” is “all supervision, labor,
materials, layout, hoisting, tools, equipment, supplies, shop drawings, samples, insurance and all
other things necessary for the construction and completion of” “mobilization”, “maintaining
traffic”, base course paving, top course paving, “hand patching”, and “cold milling”, “together
with all work incidental” to performing the above-mentioned work.2 While Exhibit A identifies
some of the incidental work that is to take place, for example, “Cold milling includes trucking and
clean up”, and top course paving includes traffic regulator control, the Exhibit is not all-inclusive
of Michigan Paving’s work under the Subcontract. This is especially true in light of the broad
language employed in section 1.1 that “all supervision, labor,. . . and all other things necessary . . .
together with all work incidental thereto” constitutes the “Subcontractor’s Work.”3 Based on this
plain reading of section 1.1 and Exhibit A, we conclude that the trial court erred in finding that
Michigan Paving’s duties under the Subcontract only arose when it was engaged in top course
paving.
There was record evidence which created a material question of fact as to whether
Michigan Paving was engaged in contractual work at the time of the collision between Brodock
and Krawczynski. There were jobsite logs which noted that on October 15, 2016, Michigan Paving
had milled the northbound lanes on south Fremont. The contract between Dunigan and Michigan
Paving, obliged Michigan Paving to do cold milling work and cleanup at that site. Michigan
2
According to Yrlas, bituminous pavement 4C is base course pavement. Bituminous pavement
5C is top course pavement. Milling involves the use of heavy equipment to break through
pavement.
3
“[T]here is no broader classification than the word ‘all.’ ” Skotak v Vic Tanny Intern, Inc, 203
Mich App 616, 619; 513 NW2d 428 (1994), holding mod by Patterson v Kleiman, 447 Mich 429;
526 NW2d 879 (1994).
-6-
Paving contracted with Caporossi Milling to do Michigan Paving’s milling for the Dunigan
pavement job. Brodock testified that on the day of the incident, the curbs had been milled and he
was assisting in moving the debris so that paving could begin. Yrlas, Michigan Paving’s
supervisor, testified that the flow boy trucks were there that day to begin paving but that the roads
were too wet for them to proceed. While that Michigan Paving representative averred that
Michigan Paving “had no direct or indirect responsibility for clearing broken concrete pieces or
other debris left at a site by the operations of other contractors”, the debris that Brodock was
removing was arguably left by Michigan Paving’s agent. Brodock also testified that Dunigan and
Michigan Paving were the only two companies on site the day of the accident. He testified that
the curbs were busted out, the sewers were put in, and “[t]hat’s why the asphalt company was
there.” He testified that Michigan Paving’s pavers, flow boy semi truckers, and rollers were all on
site. Yrlas testified that a paving crew of “two screed operators, two roller operators, a density
tech,” laborers, and three flaggers was at the job site at approximately 9:30 a.m., with the accident
occurring at approximately 10:00 a.m. The flow boy drivers testified that they were sent to the
intersection of Fremont and West Chicago by Michigan Paving with asphalt, and that they were
parked in the center lane of West Chicago for approximately one hour waiting for direction from
Yrlas. Regardless, the trial court erred because there was competent evidence that the flow boys
of Michigan Paving were at the site to pave and that the decision not to do so was made, at least,
contemporaneously with the incident. Additionally, a rational trier of fact had evidence upon
which to conclude that Brodock was acting in furtherance of the paving mission as he backed
across West Chicago to remove debris.
In addition to the grant of summary disposition to Michigan Paving being erroneous, we
conclude that Dunigan and Brodock are entitled to indemnification under sections 9.1 and 9.3. In
other contexts, this Court has defined “arising out of” as requiring a causal connection between
the injury and accident that must be more than “incidental, fortuitous or ‘but for.’ ” Kochoian v
Allstate Ins Co, 168 Mich App 1, 8; 423 NW2d 913 (1988) (citation omitted). Section 9.1 provides
the connection between the Work for which Michigan Paving must indemnify Dunigan and
Brodock as that “to the extent caused or alleged to be caused in whole or in any part by the
negligent acts or omissions of” Michigan Paving. Krawczynski’s claims “regarding construction
services, supervision, safety, traffic safety, traffic control, interference with traffic, warnings,
flagging, and traffic regulator control in the area of and at the time of the accident” arise from
allegations that concern Michigan Paving’s negligent performance of the Work under the
Subcontract, thereby triggering section 9.1. Similarly, Michigan Paving promised to additionally
indemnify Dunigan and Brodock under section 9.3 “against any and all claims, . . . as a result of
Subcontractor’s actual or alleged failure to perform this Subcontract.” Again, Krawczynski’s
claims are alleged failures of Michigan Paving’s performance.4
4
We reject Michigan Paving’s contention that section 9.3 is inapplicable for want of a contractual
relationship between Krawczynski and Michigan Paving. Section 9.3 reads:
Subcontractor shall indemnify, defend and hold harmless the Indemnified Parties
from and against any and all claims, . . . as a result of Subcontractor’s actual or
-7-
Dunigan and Brodock lastly contend that the trial court erred in not deciding their breach
of contract claim related to Michigan Paving’s promise to obtain liability insurance for them under
Article 10 of the Subcontract. Article 10 provides in part, that the “Subcontractor’s insurance
policies shall state that they are primary and not additional to, or contributing to, or contributing
with, any other insurance carried by, or for the benefit of the Additional Insured.” Below,
Michigan Paving presented an affidavit and policy document as an offer of proof that it had
obtained the insurance required under the Subcontract. The trial court however did not reach this
issue in deciding the opposing motions. On remand, we direct the trial court to address and decide
the merits of the breach of contract claim.
We reverse the trial court’s order granting summary disposition to Michigan Paving and
denying summary disposition to Brodock and Dunigan. We remand this case to the trial court for
further proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Michael F. Gadola
/s/ Cynthia Diane Stephens
/s/ Douglas B. Shapiro
alleged failure to perform this Subcontract in accordance with the terms of this
Agreement and the Contract Documents. The foregoing obligations of
Subcontractor shall include, but are not limited to, indemnifying, defending and
holding harmless from claims made by third parties against any Indemnified Party.
Subcontractor’s liability includes, but is not limited to, . . . (iv) liability to third
parties. . .; . . . and (viii) attorneys’ fees and related costs.” [Emphasis added].
This provision is not ambiguous.
Michigan Paving’s citation to Romain v Frankenmuth Mut Ins Co, 483 Mich 18; 762 NW2d
911 (2009), in support of its contention that section 9.3 does not apply is also unavailing.
Importantly, Romain did not involve a contract for indemnification. Neither did Romain involve
a third-party complaint between defendants. In Romain, the Supreme Court affirmed the trial
court’s decision to grant the plaintiff’s motion to strike the defendant’s notice of nonparty at fault.
Here, Krawczynski did not move to strike the same notice from Brodock and Dunigan, but instead
moved to amend the complaint to add Michigan Paving.
-8-