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Zurich Ins. Co. v. CCR and Co.11/25/1997
ON REHEARING
In this contract action stemming from two indemnification agreements, defendant CCR and Company appeals as of right the order of the circuit court granting summary Disposition in favor of plaintiff, Zurich Insurance Company. We affirm.
Defendant provided cartage services to Michigan Carton and Paperboard Company pursuant to contract. Two contracts appear in the record. The first contains an integration clause, covering the period February 7, 1991, through February 6, 1992, and thereafter unless canceled by either party upon thirty days' written notice, while the second is dated June 1, 1993, contains a similar thirty-day cancellation provision, but is less extensive and includes neither an integration clause nor a term clause. The second does not declare what effect, if any, it has on the first, that is, whether it is supplemental (in part, it provides for a lease of tractors and trailers, a subject not addressed in the earlier contract) or supplantive. The earlier contract also contains a clause specifying that it can be amended or affected only by a further written contract; we note that such language, although frequently seen, is wholly nugatory. Reid v Bradstreet, 256 Mich 282, 286; 239 NW 509 (1931).
Both of these contracts contain clauses providing that defendant agreed to indemnify Michigan Carton for all claims for death or personal injuries arising from the defendant's transportation of Michigan Carton's products. When an employee of defendant, who was driving a truck owned by defendant, accidentally struck and killed an employee of Michigan Carton, Michigan Carton first referred the matter to its worker's compensation liability insurer, plaintiff Zurich, without evaluating whether it could rely on the indemnification provisions.
Plaintiff paid worker's compensation benefits to the estate of the deceased employee, thereby satisfying Michigan Carton's obligations and removing it from the litigation that was to ensue. Plaintiff, as subrogee of Michigan Carton, then brought suit against defendant. Plaintiff contended that by dint of the fact that it had satisfied what would have been Michigan Carton's financial obligations arising from the death of the employee, it was subrogated to Michigan Carton's right to indemnification against defendant. The circuit court agreed and granted plaintiff's motion for summary Disposition pursuant to MCR 2.116(C)(10). Defendant now appeals as of right. Our review is de novo. Pinckney Community Schools v Continental Casualty Co, 213 Mich App 521, 525; 540 NW2d 748 (1995).
Defendant first argues on appeal that the circuit court erred in granting plaintiff's motion after it refused to consider parol evidence concerning the intent of the parties when executing the contracts containing the indemnification provisions presently at issue. Defendant averred by affidavits-duly submitted to the trial court in opposition to the motion for summary Disposition, and thus properly considered by this Court on appeal, Quinto v Cross & Peters Co, 451 Mich 358, 366-367, n 5; 547 NW2d 314 (1996)-that Michigan Carton and defendant at no time "intended to create a duty upon to indemnify Michigan Carton . . . or its subrogee, for workers compensation benefits paid for injury to its employees . . . ." If the affidavits were competent evidence regarding the issue at bar, a question concerning the weight and credibility to be given to such averments would be presented, and, on familiar principles, summary Disposition would then be precluded because of the presence of a triable issue of fact.
An indemnity contract is construed in the same fashion as are contracts generally. Triple E Produce Corp v Mastronard
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