Preview:

STATE OF MICHIGAN COURT OF APPEALS

EDWARD C. LEVY COMPANY, d/b/a KILLINS CONCRETE COMPANY, Plaintiff-Appellee, v HAMMER TRUCKING, INC., Defendant-Appellant.

UNPUBLISHED March 6, 2012

No. 298137 Wayne Circuit Court LC No. 07-704247-CK

Before: SAAD, P.J., and STEPHENS and RONAYNE KRAUSE, JJ. PER CURIAM. Defendant, Hammer Trucking, Inc., appeals the trial court's judgment in favor of plaintiff, Edward C. Levy Company. For the reasons set forth below, we affirm. I. FACTS AND PROCEDURAL HISTORY This case involves an indemnification agreement between Levy and Hammer pursuant to which Hammer agreed to indemnify Levy for all expenses related to any claim, injury, damage, or judgment, except if Levy's negligence caused the loss. Levy defended an action brought by Hammer employee Christopher Dauterman who slipped and fell on snow or ice during a delivery to Levy's Ann Arbor facility. Levy settled with Dauterman for $75,000 and Levy then sued Hammer for indemnification. The trial court ruled that Hammer had no duty to indemnify Levy, but this Court reversed in an unpublished opinion, Edward C Levy Co v Hammer Trucking, Inc, unpublished opinion per curiam of the Court of Appeals, issued September 29, 2009 (Docket No. 284400). Specifically, this Court ruled that Levy's settlement with Dauterman did not establish Levy's negligence so as to preclude indemnification under its agreement with Hammer and the Court remanded the case for the parties to litigate the issue of whether Levy's negligence caused Dauterman's injury. On remand, the trial court ruled that the hazard involved in the Dauterman lawsuit was open and obvious, that Levy was not negligent, and that, therefore, Hammer must indemnify Levy. II. SETTLEMENT AGREEMENT Hammer argues that the trial court should have granted its motion for summary disposition on the ground that the settlement agreement between Levy and Dauterman precludes Levy's action for indemnification. This Court reviews "a trial court's decision on a motion for -1-

summary disposition de novo on the basis of the entire record to determine if the moving party is entitled to judgment as a matter of law." Auto

Download EDW C LEVY CO V HAMMER TRUCKING INC.pdf

Michigan Law