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STATE OF MICHIGAN COURT OF APPEALS

ERNIE MORGAN and KATHY MORGAN, Plaintiffs, v MENASHA CORPORATION, Defendant-Third-Party PlaintiffAppellant, v FAIRHAVEN WOOD HARVESTING Third-Party Defendant-Third-Party Plaintiff-Appellant, and ESSEX INSURANCE COMPANY, Intervenor.

UNPUBLISHED June 15, 2010

No. 289826 Allegan Circuit Court LC No. 03-34763-NO

Before: OWENS, P.J., and O'CONNELL and TALBOT, JJ. PER CURIAM. Fairhaven Wood Harvesting, Inc. (Fairhaven), appeals as of right from the trial court's order granting summary disposition in favor of Menasha Corporation (Menasha). We affirm. I. FACTS The Morgan plaintiffs filed a two-count complaint against Menasha, alleging negligence and loss of consortium on behalf of Morgan's wife. The complaint alleged that Morgan was on Menasha's premises for the purpose of delivering wood chips when he stood upon a platform and a Menasha employee negligently caused the platform to open, resulting in Morgan being knocked off the platform and incurring serious injuries and extensive damages.

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Subsequently, Menasha filed a third-party complaint against Fairhaven, alleging that a contract between Menasha and Fairhaven covered the delivery of woodchips by Morgan at the time of the injury. Initially, Menasha pointed to Article 9 of the contract in support of its claim that Fairhaven was responsible for defending, indemnifying, and reimbursing Menasha. Menasha moved for summary disposition under MCR 2.116(C)(10). An order granting summary disposition in favor of Menasha was entered, providing that Fairhaven was to defend, indemnify, and to pay the reasonable attorney fees incurred by Menasha relative to the action. A jury trial later took place on the underlying claim, and the jury found that Menasha's employee negligently operated the truck-dumping platform, that the negligence was the proximate cause of Morgan's injuries, that Morgan suffered damages. After Morgan secured his judgment, Fairhaven, and its insurance carrier, Essex, contended that Morgan's judgment was not covered by Fairhaven's comprehensive general liability insurance policy through Essex. Fairhaven and Essex declined Menasha's demand that Fairhaven and/or Essex satisfy the Morgan judgment. Fairhaven appealed the order of summary disposition in favor of Menasha on the third party contractual-indemnification claims. In Morgan v Menasha, unpublished per curiam opinion of the Court of Appeals, issued November 15, 2007 (Docket No. 272837), this Court reversed the trial court's ruling that Fairhaven was contractually obligated, pursuant to the terms of the agreement, to indemnify Menasha. Menasha filed a motion for reconsideration wherein it asserted that it was entitled to judgment on its separate breach of contract claims based on Article 10 of the agreement. This Court denied the motion for reconsideration. Menasha appealed to our Supreme Court and our Supreme Court affirmed the ruling of this Court with respect to the interpretation of the indemnity provisions of the agreement, but vacated this Court's opinion insofar as it directed the trial court to enter a final judgment in favor of Fairhaven. Menasha filed a motion with the circuit court for summary disposition arguing that Fairhaven breached its obligation under Article 10 to procure and maintain insurance coverage. Fairhaven filed a cross-motion for summary disposition arguing that Menasha failed to state a claim for breach of Article 10. The circuit court granted Menasha's motion for summary disposition. Fairhaven now appeals as of right. II. ANALYSIS Fairhaven argues that the trial court erred in granting Menasha's motion for summary disposition. We disagree. This Court reviews de novo a trial court's ruling on a motion for summary disposition. Stanton v Battle Creek, 466 Mich 611, 614; 647 NW2d 508 (2002). Similarly, whether contract language is ambiguous is a question of law that will be reviewed de novo. Farm Bureau Mut Ins Co v Nikkel, 460 Mich 558, 563; 596 NW2d 915 (1999). The proper interpretation of a contract is also a question of law that is reviewed de novo. Henderson v State Farm Fire & Cas Co, 460 Mich 348, 353; 596 NW2d 190 (1999). Article 10 of the Agreement between Fairhaven and Menasha states:

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Article 10. [Fairhaven] shall secure, maintain in force, and pay for such insurance as will protect [Menasha] and [Fairhaven] from any and all claims under workers compensation, and from any other claim for damage to property or personal injury including death, which may arise from actions under this agreement, whether such operations be conducted by themselves or by any subcontractor, or anyone directly or indirectly employed by either of them as follows. Fairhaven urges this Court to conclude that the word "themselves" refers only to Fairhaven and not to Menasha and that the phrase "either of them" refers to "either Fairhaven or its subcontractors or employees" and not to Menasha. We decline to make such a conclusion. A contract must be interpreted according to its plain and ordinary meaning. Holmes v Holmes, 281 MichApp 575, 593; 760 NW2d 300 (2008). The fundamental goal of contract interpretation is to determine and enforce the parties' intent by reading the agreement as a whole and applying the plain language used by the parties to reach their agreement." Dobbelaere v Auto-Owners Ins Co, 275 Mich App 527, 529; 740 NW2d 503 (2007). If contractual language is clear and unambiguous, its meaning is a question of law, and courts must interpret and enforce the contract as written. Frankenmuth Mut Ins Co v Masters, 460 Mich 105, 111; 595 NW2d 832 (1999). However, if contractual language is ambiguous, its meaning is a question of fact for the jury to decide. Klapp v United Ins Group Agency, Inc, 468 Mich 459, 469, 663 NW2d 447 (2003). A contract is ambiguous if it allows two or more reasonable interpretations, or if the provisions cannot be reconciled with each other. Meagher v Wayne State Univ, 222 Mich App 700, 721-722; 565 NW2d 401 (1997). Under ordinary contract principles if contractual language is clear, construction of the contract is a question of law for the court. Id. If the contract, although inartfully worded or clumsily arranged, fairly admits of but one interpretation, it is not ambiguous. Id. A court may not rewrite clear and unambiguous language under the guise of interpretation. Henderson v State Farm Fire & Cas Co, 460 Mich 348, 354; 596 NW2d 190 (1999). Rather, courts must give "effect to every word, phrase, and clause in a contract and avoid an interpretation that would render any part of the contract surplusage or nugatory." Klapp, 468 Mich at 463. In this case, despite Fairhaven's arguments, the terms "themselves" and "either of them" are not ambiguous. Fairhaven and Menasha are the two entities specifically mentioned in Article 10. To conclude that the terms "themselves" and "either of them" do not include Menasha is contrary to common sense, and common grammatical interpretation. All of the cases cited by Fairhaven in support of its argument rely on the premise that where contract language is ambiguous, courts may turn to extrinsic evidence to determine the meaning. Here, the trial court concluded, and we agree, that there simply is no ambiguity in the language of Article 10. The provision clearly obligates Fairhaven to secure insurance that protects Menasha from claims for damage to property or personal injury, including death, arising from actions under the parties' agreement, irrespective of whether the operation was performed by Menasha or Fairhaven, by any subcontractor or anyone directly or indirectly employed by either of them. Fairhaven's argument that because Menasha obtained its own general liability insurance coverage from Wausau, Menasha must have recognized that Article 10 did not require Fairhaven to obtain insurance covering Menasha, is also unpersuasive. Additionally, Fairhaven's argument -3-

that the Essex liability policy issued to Fairhaven would not cover the Morgans' claims against Menasha even if Menasha were named as an additional insured is without merit. Even if Essex did not name Menasha as an additional insured under the comprehensive general liability policy issued to Fairhaven, it was Fairhaven's duty, under Article 10, to insure that Menasha was covered by the policy. Next, Fairhaven argues that even if Article 10 did require Fairhaven to procure insurance for Menasha, Menasha waived this requirement because prior to the accident in the underlying case, no certificate of insurance was provided to Menasha documenting that it had been added to Fairhaven's policy and therefore, Menasha must have been aware of the breach. "`Waiver,' when used in connection with the required performance of a condition, has its usual meaning of a voluntary relinquishment of a known right." 17A Am Jur 2d, Contracts,

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