T.M. BURNS, J.
The important questions in these consolidated cases relate to the effect of MCL 691.991; MSA 26.1146(1) on the indemnity contract between third-party plaintiff, Clark Equipment Company (Clark) and third-party defendant, B.L. Harroun & Son, Inc. (Harroun) and, if the statute does not void the entire indemnity portion of a contract, did the trial court properly instruct the jury on the showing Clark was required to make to recover under the indemnity agreement. Clark also seeks review of two evidentiary questions.
Harroun contracted with Clark to install an overhead sprinkler system in one of Clark's facilities. One clause of the contract provided that Harroun indemnify Clark as follows:
"It is understood and agreed that the seller will
On September 7, 1971, three Harroun employees were continuing the work which had begun several weeks earlier. Robert Ford and Lee Trim were working near the ceiling on a platform provided by Harroun. This platform apparently rested on the steel beam superstructure of the building, but was not secured to it in any way. As the work progressed, the Harroun employees would skid the platform along the steel to the next connection point. This skidding of the platform eventually brought Trim and Ford directly over one of the main aisleways of the plant.
In performing their work, Ford and Trim brought sections of pipe from the floor to the platform. To accomplish this, one end of a rope was tied to the platform and the opposite end lowered to the third employee who would tie it to the pipe. The men on the platform would then pull the rope, with the pipe, up to the platform. Unfortunately, the rope was not coiled on the platform as it was brought up, but was allowed to dangle down and form a loop.
Clark had not discontinued its operation while the sprinkler system was being installed. While the Harroun employees were on the platform pulling up the pipe, a hi-lo driver entered the building
Ford's estate and Trim brought separate actions against Clark. Upon receipt of the complaint, Clark wrote to Harroun demanding that it assume the defense and indemnify Clark under the contract. The demand was refused. Clark then started the third-party actions involved in this appeal alleging both the contractual right to be indemnified and a claim of common law indemnity.
After substantial discovery was completed, Clark and the original plaintiffs reached a tentative settlement of the original suits. Clark informed Harroun that unless Harroun agreed to assume the defense on behalf of Clark and agreed to hold Clark harmless under the contract, Clark would consent to judgments of $50,000 in the Ford case and $3,500 in the Trim case. Harroun again refused to take over the defense because it believed the contractual indemnity agreement was void and because it believed that Clark could prevail on the merits at trial.
After the refusal to take over the defense, Clark consented to judgments in the amounts noted above and these judgments have been satisfied. The third-party action then proceeded to trial. Under the court's instructions, the jury found for
The first problem we must deal with is the effect of MCL 691.991; MSA 26.1146(1) on the contractual indemnity provision quoted above. The statute provides:
"A covenant, promise, agreement or understanding in, or in connection with or collateral to, a contract or agreement relative to the construction, alteration, repair or maintenance of a building, structure, appurtenance and appliance, including moving, demolition and excavating connected therewith, purporting to indemnify the promisee against liability for damages arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of the promisee or indemnitee, his agents or employees, is against public policy and is void and unenforceable."
The court below, by its ruling and instruction, adopted Clark's argument that the policy of the act could be enforced by merely striking so much of the contractual provision as would require Harroun to indemnify Clark for Clark's sole negligence. The agreement would, therefore, provide indemnity if Clark and Harroun were concurrently negligent, or if Clark were held liable because of Harroun's negligence. Harroun argues that the entire indemnity provision of the contract is void and unenforceable.
The precise scope of this contract invalidating provision has never been stated. Compare, Brda v Chrysler Corp, 50 Mich.App. 332; 213 N.W.2d 295 (1973), with Nanasi v General Motors Corp, 56 Mich.App. 652; 224 N.W.2d 914 (1974). After considering the arguments raised by the parties, we
In this case Harroun, in effect, made two promises in the indemnity clause; to indemnify for Clark's sole negligence and to indemnify if the injury was caused "in part" by Clark's negligence. Both promises are supported by the same consideration. Only the first promise is made illegal by the construction statute. The promise to indemnify Clark even if Clark was partially responsible for the accident or injury is not voided by the statute and may be enforced. It does no violence to either the contracting party's intent or the statute to sever this independent, unenforceable promise from the rest of the indemnity clause on the facts of this case. See, Robertson v Swindell-Dressler Co, supra.
Having concluded that Clark may have indemnity under the contract in a proper case, unless it was solely responsible for the accident, we must next determine if the trial court correctly instructed the jury concerning what Clark must show in order to recover. The parties have stated the dispute to be over whether the indemnitee, Clark, must show "actual" or "potential" liability to Trim and Ford. Neither party has directed our attention to specific Michigan authority which covers this situation, and we have found none.
The trial court, by its instruction, required a
The policy of this state is to encourage settlements of suits. The settlement of a suit benefits both parties and the public. If this policy is to be effective, the burden on the defendant who settles after a tender of the defense to the contractual indemnitor is refused must not be too heavy. Cf. Morrissette v Sears, Roebuck & Co, 114 N.H. 384; 322 A.2d 7 (1974). We, therefore, hold that to recover on the contract of indemnity, Clark need show only its potential, as opposed to its actual, liability to Trim and Ford. See discussion in Tankrederiet Gefion A/S v Hyman-Michaels Co, 406 F.2d 1039, 1043, (CA 6, 1969).
We would be derelict in our duty to end the discussion at this point for the term potential liability means many things to many courts. We will attempt, therefore, to explain what this term means to us and what must be shown by the contractual indemnitee or indemnitor to recover or to avoid recovery. The present discussion must be limited in application, of course, to cases of the type involved here, that is, an enforceable contract of indemnity exists, a seasonable tender of defense with notice that a settlement will be entered is made and the tender of defense is refused.
To recover under these circumstances the indemnitee must show that the fact situation of the original claim is covered by the contract of indemnity
Potential liability actually means nothing more than that the indemnitee acted reasonably in settling the underlying suit. The reasonableness of the settlement consists of two components which are interrelated. The fact finder must look at the amount paid in settlement of the claim in light of the risk of exposure. The risk of exposure is the probable amount of a judgment if the original plaintiff were to prevail at trial, balanced against the possibility that the original defendant would have prevailed. Chicago, RI & PR Co v Dobry Flour Mills, 211 F.2d 785 (CA10, 1954), Wisconsin Barge Line, Inc v Barge Chem 300, 546 F.2d 1125 (CA 5, 1977). If the amount of the settlement is reasonable in light of the fact finder's analysis of these factors, the indemnitee will have cleared this hurdle. The fact that the claim may have been successfully defended by a showing of contributory negligence, lack of negligence or otherwise, is but a part of the reasonableness analysis and, therefore, subject to proof. Moses-Ecco Co v Roscoe-Ajax Corp, 115 US App DC 366; 320 F.2d 685 (1963).
If it is shown that this suit would have been successfully defended, the indemnitee will not recover. The burden of presenting evidence on this point is on the indemnitor, but the ultimate burden of persuasion remains with the indemnitee to show that the settlement was reasonable under all the circumstances.
Because of the construction statute discussed in
The trial court was correct in submitting the case to the jury because questions of fact exist on many points. Neither side was or is entitled to prevail as a matter of law. The standard under which the case was submitted was erroneous and requires a new trial where the potential, as opposed to the actual, liability of Clark will be the issue.
The disposition in Part II renders extended discussion of the evidentiary questions raised by Clark unnecessary. We mention them only to guide the trial court in the event of a retrial.
The trial court ordered references to insurance struck from both the contract between Clark and Harroun and a letter between the parties before these documents were admitted as evidence. Clark claims this evidence should have been admitted to counteract Harroun's counsel's remark in his opening statement that the case envolved the "big corporation, Clark on the one hand" and "Harroun, a small, family corporation" on the other. Clark did not object to this statement below nor does it seek reversal on that ground here. We do not condone the statement, but it does not necessarily follow that Clark would be justified in introducing evidence that Harroun was insured. The question will be controlled by MRE 411 on a retrial. See, 2 Weinstein's Evidence, ¶ 11, p 411-11.
Reversed and remanded for proceedings not inconsistent with this opinion.