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No. 136382
| Timothy Zahn, |
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Plaintiff, |
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| v |
(Appeal from Ct of Appeals) |
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(Genesee - Neithercut, G.) |
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| Kroger Company of Michigan, |
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Defendant, Cross-Plaintiff-Appellee, |
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| F.H. Martin Construction Company, |
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Janet Callahan Barnes |
Defendant, Cross-Defendant, Third-Party Plaintiff-Appellee, |
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| Cimarron Services, Inc., |
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Eric S. Goldstein |
| Third-Party Defendant-Appellant. |
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| __________________________________________ |
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Third-Party Defendant-Appellant's Brief on Appeal>>
Background
Cimarron Services, Inc., a subcontractor on a Kroger store renovation project, entered into an indemnification agreement with the general contractor, F. H. Martin Construction Company. The agreement provided that “To the fullest extent permitted by law, Subcontractor shall defend, indemnify and hold Martin . . . harmless from all claims for bodily injury and property damage that may arise from the performance of the Subcontract work to the extent of the negligence attributed to such acts or omissions by Subcontractor, or anyone employed or contracted by Subcontractor for whose acts any of them may be liable. In no event shall the indemnity contained herein be deemed to cover damages arising exclusively through the negligence of Martin.” One of Cimarron’s employees, Timothy Zahn, was hurt on the job and sued Martin Construction and Kroger for negligence. Zahn alleged in his complaint that “as a direct result of the failure to maintain the area where Plaintiff was working in a safe condition, free from readily observable, avoidable dangers, Defendants Kroger and Martin Construction caused Plaintiff to suffer injuries.” Martin settled this claim, and then pursued Cimarron under the indemnification clause that made Cimarron liable for any tort liability Martin incurred due to Cimarron’s negligence. Cimarron countered that it could not be liable in tort for Zahn’s injury, citing the exclusive remedy provision of the Worker’s Disability Compensation Act, (MCL 418.131(1). Under the WDCA, an employee’s exclusive remedy for work-related injuries is through an worker’s compensation claim against the employer, rather than through a tort lawsuit. Cimarron also contended that the settlement was solely for Martin’s own negligence. The trial court did not agree; following a bench trial, the court found that Cimarron was 80 percent at fault for Zahn’s injury. Accordingly, the court ordered Cimarron to reimburse Martin for 80 percent of the settlement amount. The Court of Appeals affirmed this judgment in an unpublished opinion, rejecting Cimarron’s contention that the award was improper because the state legislature had abolished joint and several liability – the legal doctrine under which a plaintiff may collect an entire judgment from any of a group of defendants found to be at fault, regardless of an individual defendant’s percentage of fault. Cimarron appeals.
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