citation">102 Mich. App. 718 (1981)302 N.W.2d 293

PONTIOUS
v.
E W BLISS COMPANY

Docket No. 50550.

Michigan Court of Appeals.

Decided January 6, 1981.

Donald J. Morbach & Assoc., P.C., for Tepco, Inc.

Moore, Sills, Poling, Wooster & Sinn, P.C. (by James M. Prahler), and Nusholtz & Nusholtz (of counsel), for D.M.P. Manufacturing Corp.

Before: N.J. KAUFMAN, P.J., and R.B. BURNS and J.W. WARREN,^[*] JJ.

R.B. BURNS, J.

The primary plaintiff, John M. Pontious, and his wife brought suit against defendant Tepco, Inc. (Tepco) to recover damages for injuries suffered by John Pontious while he was operating a press for his employer, D.M.P. Manufacturing Corp. (DMP). DMP and Tepco apparently had entered into a contract whereby DMP was to design and build tooling and parts for Tepco. Tepco filed a third-party complaint against DMP seeking common-law indemnification for any liability to plaintiffs or damages for breach of express and implied warranties for DMP's failure to execute its contractual duties in a safe and workmanlike manner. DMP brought a motion for summary judgment under GCR 1963, 117.2(1), which the *721 trial court granted. The court's order states that the court found no vicarious liability and no breach of implied or express warranties. Tepco appeals.

As this case arises on summary judgment for failure to state a cause of action, we accept as true Tepco's well-pleaded facts and inquire whether its claims are so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. Southland Corp v Liquor Control Comm,95 Mich App 466; 291 NW2d 84 (1980), Borman's, Inc v Lake State Development Co,60 Mich App 175; 230 NW2d 363 (1975).

As Tepco has stated, 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. Dale v Whiteman,388 Mich 698; 202 NW2d 797 (1972). The individual seeking indemnification must be able to show that he did not participate in the commission of the tort and that this liability therefore arises only by operation of law. In determining whether the party seeking to be indemnified stands in such a position, the trial court must look to the allegations of the primary plaintiff's complaint.

The trial court in the present case did not err in granting DMP's motion for summary judgment on the ground that Tepco had failed to state a cause of action for common-law indemnity. The allegations of the primary plaintiff's complaint assert active negligence on the part of Tepco. There are no allegations of vicarious liability that would arise by operation of law. Under those circumstances there is no factual development which can justify Tepco's claim for common-law indemnification.

*722 On appeal, Tepco also claims that it was entitled to go to trial on a claim for indemnity based upon an implied indemnity contract. Hill v Sullivan Equipment Co,86 Mich App 693, 697; 273 NW2d 527 (1978). In Hill, this Court found that such a claim had been properly pled where the third-party complaint alleged that the third-party defendant had unilaterally rejected a protective device proposed by the third-party plaintiff and had undertaken to render certain machinery safe in a manner of the third-party defendant's own choosing. We have examined Tepco's third-party complaint and find no comparable allegations. There are no allegations indicating a basis upon which an implied indemnity contract could be predicated. In fact, the third-party complaint contains no mention at all of this theory of liability.

Tepco's third-party complaint does, however, contain a theory of DMP's liability to Tepco upon which Tepco should be allowed to submit its proofs. In its third-party complaint Tepco alleges that DMP's act of negligence in failing to provide plaintiff with a safe place to work was a breach of an implied warranty that the work required by the terms of DMP and Tepco's contract would be performed in a safe and workmanlike manner. See, Nash v Sears, Roebuck & Co,383 Mich 136; 174 NW2d 818 (1970). As Tepco has sufficiently pled a claim for contract damages, the trial court should have afforded Tepco the opportunity to establish at trial that DMP did, in fact, breach this implied warranty.

Affirmed in part and reversed in part. No costs, neither party having prevailed in full.

J.W. WARREN, J., concurred.

N.J. KAUFMAN, P.J. (dissenting).

I must respectfully *723 dissent from that portion of the well-written majority opinion reversing the trial court's grant of summary judgment on the theory of breach of implied warranty.

Initially, I note that Nash v Sears, Roebuck & Co,383 Mich 136; 174 NW2d 818 (1970), cited by the majority, is not a case involving product liability. What Tepco is really claiming is that plaintiff's employer was negligent in failing to provide a safe place to work and that he, the employer, was therefore more negligent, or equally as negligent, as was Tepco. In actuality, this amounts to a reiteration of Tepco's first claim against D.M.P. Manufacturing Corp., and against which I believe summary judgment was properly granted. Minster Machine Co v Diamond Stamping Co,72 Mich App 58; 248 NW2d 676 (1976).

I would affirm the trial court's granting of summary judgments.

NOTES

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

PONTIOUS v. E W BLISS COMPANY

NOTES

PONTIOUS
v.
E W BLISS COMPANY

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