finding summary judgment for indemnification improper when there was a question of responsibility for the safety of a job site following an accident thereon
How later courts described this case
- finding summary judgment for indemnification improper when there was a question of responsibility for the safety of a job site following an accident thereon
- “If [the primary plaintiff’s] complaint alleges ‘active’ negligence, as opposed to derivative liability, the defendant is not entitled to common-law indemnity.”
Written by the judges who cited it.
The opinion
*302 On Rehearing
R. M. Maher, P.J.
On rehearing, Waterford contends that, when Domar breached its contractual obligation to provide liability insurance on behalf of Waterford, Domar assumed the role of the insurer. Waterford further alleges that the trial court considered the breach of contract issue as an independent basis for granting Waterford’s motion for summary judgment, rather than as an adjunct to the indemnification agreement. Based on these allegations, Waterford contends that, under the unambiguous term of its contractual obligation with Domar, its measure of damages for the breach equals the amount of insurance which Domar agreed to procure, together with all defense costs and expenses.
We must reject Waterford’s contention that summary judgment was appropriate to dispose of the question of Domar’s breach of its obligation to procure insurance. Contracts which are in contravention of public policy are unenforceable. Mahoney v Lincoln Brick Co, 304 Mich 694 ; 8 NW2d 883 (1943). Contracts which violate a statute are contrary to public policy and cannot be enforced by the courts, even though actual injury does not result from the agreement. Skutt v Grand Rapids, 275 Mich 258 ; 266 NW 344 (1936), Jaenicke v Davidson, 290 Mich 298 ; 287 NW 472 (1939), Federoff v Ewing, 386 Mich 474, 481 ; 192 NW2d 242 (1971).
We have previously noted that the Legislature has declared it to be contrary to public policy in Michigan for anyone in the construction industry to make any agreement which would absolve him from liability for his sole negligence, declaring *303 that any such agreement is void and unenforceable, MCL 691.991; MSA 26.1146(1). Any agreement whereby a subcontractor must procure insurance which includes coverage for the general contractor’s sole negligence would contravene Michigan public policy as expressed by the statute and would be unenforceable. Since the extent of Waterford’s negligence had to be determined as a question of fact, summary judgment was not the appropriate vehicle to dispose of the case. We therefore adhere to our earlier conclusion that the trial court erred in granting Waterford’s motion for summary judgment and would remand the matter for a trial.