Opinion
No. 349212
07-23-2020
FORD MOTOR COMPANY, Plaintiff-Appellant, v. CENTRA, INC., UNIVERSAL DEDICATED, INC., LOGISTICS INSIGHT CORPORATION, and CHEROKEE INSURANCE COMPANY, Defendants-Appellees.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Oakland Circuit Court
LC No. 2018-163952-CB Before: RIORDAN, P.J., and SHAPIRO and RONAYNE KRAUSE, JJ. PER CURIAM.
Plaintiff, Ford Motor Company, appeals as of right the trial court's final order granting summary disposition in favor of defendant Cherokee Insurance Company (Cherokee) on plaintiff's amended complaint, in this indemnification action. Plaintiff also challenges the trial court's earlier orders granting summary disposition in favor of Cherokee, defendant Centra Inc. (Centra), defendant Universal Dedicated, Inc. (Universal), and defendant Logistics Insight Corp (Logistics). For the reasons discussed below, we affirm in part, reverse in part, and remand.
I. FACTS AND PROCEEDINGS
A. UNDERLYING WRONGFUL DEATH ACTION
This appeal arises out of a wrongful death action in Missouri that resulted in a substantial award against defendant. The decedent, David Ford, was a delivery driver for Walkenhorst Transportation, LLC (Walkenhorst), and he was killed while delivering vehicle seats to plaintiff Ford Motor Company's vehicle assembly plant in Kansas City. Ford v Ford Motor Co, 585 SW3d 317, 322 (MO App WD, 2019). Plaintiff contends that Walkenhorst was retained to deliver seats by Logistics, pursuant to a Blanket Purchase Order (the Purchase Order) executed between plaintiff and Logistics on August 18, 2008.
The fatal accident occurred on December 8, 2015. There is some dispute as to the details of the seat-delivery process. The Missouri Court of Appeals presented the following facts, noting that it was viewing them in the light most favorable to the jury's verdict:
The Claycomo plant operated twenty-four hours a day, six days a week. Walkenhorst delivered seats to the plant in a constant loop, so that Ford Motor had an uninterrupted supply of seats during the entire duration of the assembly plant's operating hours. The seats delivered by Walkenhorst would be immediately integrated into the vehicle assembly process. On arrival at the Claycomo plant Walkenhorst's delivery trucks would back into a loading dock, where pallets of seats were removed by a piece of equipment called a "seat stripper." The seat stripper consisted of an L-shaped pair of conveyor lines. The seat stripper operated in conjunction with a number of dual-pronged, ceiling-mounted carriers which resembled the mast system of a forklift. The carriers would pick up pallets of seat from a lift table at the end of one of the seat stripper's conveyor lines. The carriers would convey the pallets of seats to the assembly line so that the seats could be installed into trucks. Once the seats were delivered to the assembly line, the carriers would return the empty pallets to a lift table on the second conveyor line of the seat stripper. After the empty pallets were removed, the carriers crossed a gap between the lift tables at the end of the seat stripper's two conveyor lines, in order to pick up new pallets loaded with vehicle seats. [Ford, 585 SW3d at 323.]The decedent was fatally injured when he entered a "pinch point" between the two carriers and was crushed between one of the carriers and a guard rail. Id. at 323-324. He died approximately a week later. At trial, and on appeal in this matter, plaintiff contended and maintains that delivery drivers were not allowed into the seat stripper area, so the decedent was trespassing at the time. The decedent presented evidence that the seat stripper was an old and poorly-functional piece of equipment; that drivers were expected to, and plaintiff was aware they routinely did, enter the seat stripper area to clear frequent jams; and that other drivers had previously been injured or nearly injured by the stripper. Id. at 323-326.
The jury found plaintiff liable and 95% at fault for the decedent's injuries. Ford, 585 SW3d at 326. "The jury also found that Ford Motor's conduct satisfied the substantive standard for an award of aggravating circumstances damages." Id. The jury was instructed that "aggravating circumstances" meant:
First, [Ford Motor] failed to remove or barricade an accessible pinch point in the seat stripper area of the Ford Kansas City Assembly plant, andOn June 25, 2019, the Missouri Court of Appeals affirmed the trial court's judgment against plaintiff. Id. at 342. On October 29, 2019, the Missouri Supreme Court denied plaintiff's application for transfer for further review.
Second, [Ford Motor] knew or had information from which [Ford Motor], in the exercise of ordinary care, should have known that such conduct created a high degree of probability of injury, and
Third, [Ford Motor] thereby showed complete indifference to or conscious disregard for the safety of others. [Id. at 338.]
See Minutes of October 29, 2019, Supreme Court of Missouri, Docket No. SC98041, at < https://www.courts.mo.gov/SUP/index.nsf/cfc8c4b5bc15cb158625661d0073593c/82cda07cb2b156d1862584a100533afe?OpenDocument >.
B. PRESENT INDEMNIFICATION ACTION
Plaintiff filed this action in the Oakland Circuit Court seeking indemnification from defendants pertaining to the Missouri action. Pursuant to the Purchase Order between plaintiff and Logistics, Logistics was required to provide trucking services for the Kansas City plant, purchase commercial general liability and automobile liability insurance, and name plaintiff as an insured on any excess or umbrella policies. The Purchase Order also incorporated plaintiff's Global Terms and Conditions (the Global Terms), which, in relevant part, provide the following indemnification provisions:
12. DEFENSE AND INDEMNITY
(a) To the full extent permitted by applicable law, Seller will indemnify Buyer,[] its directors, officers and employees and authorized dealers for all expenses (including attorney fees, settlements, and judgments) incurred by Buyer in connection with all claims (including lawsuits, administrative claims, regulatory actions, and other proceedings to recover for personal injury or death, property damage, or economic losses) that are related in any way to Seller's representations, performance or obligations under a Purchase Order, including claims based on Seller's breach of warranty and claims for any related violations of any applicable law, ordinance or regulation or government authorization or order. Seller's obligation to indemnify under this Section will apply regardless of whether the claim arises in tort, negligence, contract, warranty, strict liability or otherwise, except to the extent of the negligence of Buyer.
(b) If Seller provides services to Buyer on Buyer's premises, Seller will examine the premises to determine whether they are safe for such services and will advise Buyer promptly of any situation it deems to be unsafe. Seller's employees, contractors and agents will not possess, use, sell or transfer illegal drugs, medically unauthorized drugs or controlled substances, or unauthorized alcohol, and will not be under the influence of alcohol or drugs on Buyer's premises. Seller shall be exclusively responsible for, shall bear, and shall relieve Buyer from liability for all loss, expense, damage or claims resulting from bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person or persons, or on account of damage to or destruction of property, including that of Buyer,
arising out of, or in connection with the performance of work on Buyer's premises except that Seller shall not be responsible for or relieve Buyer from liability for claims arising from the willful misconduct or the sole negligence of Buyer. For services performed on Buyer's premises in Canada, Seller must furnish, prior to payment, evidence of compliance with the Workplace Safety and Insurance Act, 1997 or other applicable workers' compensation legislation.Plaintiff contends that Universal and Logistics are related companies, whereby Universal provides motor-carriage trucking services and Logistics is its logistical arm. As noted, Logistics retained Walkenhorst to provide the trucking services. Logistics obtained the commercial general liability and automobile liability insurance policies from Cherokee. Plaintiff contends that Universal, Logistics, and Cherokee are all owned, controlled, and essentially alter-egos of Centra.
"Buyer" refers to plaintiff Ford motor Company, and "Seller" would, in this case, refer to Logistics.
Plaintiff informed Universal and Logistics of the underlying wrongful death action. Universal and Logistics refused to provide a defense or indemnification on the theory that (1) the Global Terms did not require them to provide a defense; (2) the Global Terms did not require them to indemnify plaintiff for plaintiff's sole negligence or willful misconduct; and (3) the indemnification provision in the Global Terms was void under Michigan's Motor Carrier Anti-Indemnity Statute, MCL 479.21. Cherokee initially indicated to plaintiff that it would provide a defense and indemnification, but then concluded that upon further investigation, the circumstances of the accident were actually outside the scope of its policy.
The trial court granted summary disposition in favor of all defendants. With regard to Cherokee, the trial court ruled that Cherokee was not liable under the applicable insurance policies, plaintiff failed to establish its claim of promissory estoppel, and Cherokee did not breach any duty to defend or duty to settle in the underlying lawsuit. With regard to Universal and Logistics, the trial court ruled that they had no contractual duty to indemnify or defend plaintiff, and the indemnification provisions in the Purchase Order were void. Finally, the trial court ruled that Centra could not be liable under an alter-ego theory of liability. This appeal followed.
II. STANDARDS OF REVIEW
A grant or denial of summary disposition is reviewed de novo on the basis of the entire record to determine if the moving party is entitled to judgment as a matter of law. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). When reviewing a motion under MCR 2.116(C)(10), which tests the factual sufficiency of the complaint, this Court considers all evidence submitted by the parties in the light most favorable to the non-moving party and grants summary disposition only where the evidence fails to establish a genuine issue regarding any material fact. Id. at 120. A motion brought under MCR 2.116(C)(8) should be granted only where the complaint is so legally deficient that recovery would be impossible even if all well-pleaded facts were true and construed in the light most favorable to the non-moving party. Id. at 119. Only the pleadings may be considered when deciding a motion under MCR 2.116(C)(8). Id. at 119-120.
"The construction and interpretation of an insurance contract is a preliminary question of law that we review de novo." Gurski v Motorists Mut Ins Co, 321 Mich App 657, 665; 910 NW2d 385 (2017). "Likewise, we also review a trial court's interpretation and construction of a statute de novo." Id. "Application of the doctrine of promissory estoppel is based on the particular factual circumstances; as an equitable remedy, it is employed to alleviate an unjust result of strict adherence to established legal principles." Assoc of Hebrew Teachers of Metro Detroit v Jewish Welfare Federation of Detroit, 62 Mich App 54, 60; 233 NW2d 184 (1975). "When reviewing a grant of equitable relief, an appellate court will set aside a trial court's factual findings only if they are clearly erroneous, but whether equitable relief is proper under those facts is a question of law that an appellate court reviews de novo. McDonald v Farm Bureau Ins Co, 480 Mich 191, 197; 747 NW2d 811 (2008). "[T]his Court reviews for an abuse of discretion a trial court's decision to grant or deny leave to amend a pleading[.]" Jackson v Detroit Med Ctr, 278 Mich App 532, 539; 753 NW2d 63 (2008). "An abuse of discretion occurs when a court chooses an outcome outside the range of principled outcomes." Baynesan v Wayne State Univ, 316 Mich App 643, 651; 894 NW2d 102 (2016).
III. CLAIMS AGAINST CHEROKEE
Plaintiff argues that the trial court erred by granting Cherokee's motion for summary disposition. We agree in part.
A. GENERAL POLICY
First, plaintiff argues that the trial court erred by granting summary disposition in favor of Cherokee because Cherokee is liable under the Commercial General Liability Policy (General Policy). Section I.1.a. of the General Policy provides:
We will pay those sums that the Insured becomes legally obligated to pay as damages because of "bodily injury" or "property damage" to which this insurance applies. We will have the right and duty to defend the Insured against any "suit" seeking those damages. However, we will have no duty to defend the Insured against any "suit" seeking damages for "bodily injury" or "property damage" to which this insurance does not apply . . .Section I.2.g. excludes coverage for:
"Bodily injury" or "property damage" arising out of the ownership, maintenance, use or entrustment to others of any aircraft, "auto" or watercraft owned or operated by or renter or loaned to any insured. Use includes operation and "loading or unloading.""Loading or unloading" is defined in the policy at Section V.11 as
the handling of property:
a. After it is moved from the place where it is accepted for movement into or onto an aircraft, watercraft or "auto";
b. While it is in or on an aircraft, watercraft or "auto"; or
c. While it is being moved from an aircraft, watercraft or "auto" to the place where it is finally delivered;
but "loading or unloading" does not include the movement of property by means of a mechanical device, other than a hand truck, that is not attached to the aircraft, watercraft or "auto".As plaintiff concedes, "[a]ttached machinery, understandably enough, is considered part of the truck." Thus, the above policy exclusion applies if the seat stripper was "attached to" the decedent's truck. Plaintiff argues that the accident did not involve the use of an auto at all because it occurred inside the plant, 30 yards away from the loading dock. Plaintiff also argues that the carrier that struck the decedent was not attached to the truck except by way of numerous intermediary pieces of equipment, in which case the entire plant and everything inside would also be "attached" to the truck. Finally, plaintiff argues that the injury did not occur during "unloading" because the driver was not injured while moving seats from his truck, but after the unloading process was complete.
Preliminarily, the trial court found that plaintiff was barred from arguing that the driver's injuries did not arise out of the unloading process because plaintiff admitted the contrary in the Missouri action and in this action. For example, in response to Cherokee's first motion for summary disposition in this case, plaintiff specifically asserted that "[w]hile the seats were unloading, the driver left the designated waiting area and—contrary to express instructions—entered a restricted area inside the plant, interacted with large unloading machinery and was fatally injured." Plaintiff additionally stated, "There does not appear to be any dispute that the plaintiff in the Missouri action was killed when he interacted with an unloading machine." Plaintiff does not challenge the trial court's finding regarding these admissions. Therefore, we reject plaintiff's contrary argument that the accident did not occur during the unloading process.
The primary issue is whether the device that injured the driver was "attached" to the truck. The term "attached" is not defined in the policy. Where a term is not defined in an insurance policy, "reviewing courts must interpret the terms of the contract in accordance with their commonly used meanings. When determining the common, ordinary meaning of a word or phrase, consulting a dictionary is appropriate." Vushaj v Farm Bureau Gen Ins Co of Mich, 284 Mich App 513, 515; 773 NW2d 758 (2009) (quotation marks and citations omitted). "Attached" is defined, in pertinent part, as "connected or joined to something." Merriam-Webster.com Dictionary, available at < https://www.merriam-webster.com/dictionary/attached > (accessed April 27, 2020). We do not hold, nor do we intend to imply, that the above definition is necessarily binding or the only appropriate way to define the word "attached." Rather, the dictionary supports our common, everyday understanding that "attachment" between two objects requires them to be connected or joined together in some way—not merely touching.
We note that the meanings of words can change over time, so although the propriety of consulting a dictionary to determine the meaning of an undefined word is well-established, it is equally well-established that any such dictionary must be contemporary to the general time period in which that word was written. People v Rogers, ___ Mich App ___, ___; ___ NW2d ___ (2020) (Docket No. 346348), slip op at p 5. Here, there is no concern that the meaning of "attached" might have shifted in the five years since the General Policy was executed.
We agree with plaintiff that "attachment" implicitly must be proximate, rather than through a daisy-chain of other devices or equipment. Thus, the bare fact that a power cord and air hose were plugged into the truck during unloading does not mean any and every other piece of equipment in the plant is thereby "attached." However, we disagree with plaintiff to the extent it argues that physical distance alone is dispositive or that different components of an integrated system should be treated as discrete. There is no dispute that the unloading process required the truck to be backed precisely into guides or channels in the loading dock. The truck trailers are equipped with onboard conveyors, which then interface with a conveyor in the plant. When activated, the truck's conveyor transfers pallets of vehicle seats onto the plant conveyor, and at the end of the plant conveyor is the carrier system that then moves the seats to the assembly line. As noted, the decedent was injured by the carrier.
The trial court found no genuine issue of material fact that the truck was attached to the "seat stripper conveyor system" because "the trailers, wheels, guides, and sleeves had to be joined or connected in some fashion for the trailer to be aligned and raised for unloading purposes." It found that "each component of the seat stripper conveyor system, including the trailer's conveyor, is attached in order to execute the unloading of property as one continuous integrated system." We agree with the trial court that the carrier is seemingly an integral part of the seat-removal system and thus cannot be considered in isolation. We are less persuaded that the seat stripper system is, itself, "attached" to the truck. We disagree with plaintiff that an attachment necessarily requires a bond or fastening. However, as noted above, we do agree that two objects are not "attached" to each other merely because they are touching each other. Rather, they must be connected or joined in some way. From the evidence available to us, it is not clear that there was more of a "connection" or "join" between the truck and the seat stripper system than one conveyor belt "handing off" objects to another conveyor belt.
The trial court relied in part on plaintiff's answer to an interrogatory in the underlying action, in which plaintiff stated why it claimed the decedent was at fault for his injuries. In relevant part, plaintiff explained that "once David Ford connected his trailer to the seat stripper mechanism to load the car seats onto the conveyor, he was required to wait in the designated driver area..." Given the different contexts, it is not clear to us that this is truly an admission that the truck was "attached" to the seat stripper system. Furthermore, a party is generally "entitled to the benefit of testimony in support of a verdict in [its] favor despite [an] expression of an opinion inconsistent therewith." Ortega v Lenderink, 382 Mich 218, 223; 169 NW2d 470 (1969).
We conclude the trial court erred in finding no question of material fact whether the equipment that caused the decedent's injuries was "attached" to the truck. Therefore, the trial court erred in granting summary disposition in favor of Cherokee as to the General Policy.
At oral argument and in a motion filed after oral argument, Cherokee argued that a different endorsement to the General Policy also excludes coverage because it limits coverage to "operations or premises" owned or conducted by Logistics or Universal. Cherokee failed to present any argument on this basis in its brief, so it is abandoned. See Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959) ("[f]ailure to brief a question on appeal is tantamount to abandoning it"); Price v MacDonald, 237 Mich App 186, 197; 602 NW2d 834 (1999) ("[i]t is axiomatic that where a party fails to brief the merits of an allegation of error, the issue is deemed abandoned by this Court"). In any event, it fails on its merits. The endorsement entitled "Additional Insured - Where Required Under Contract or Agreement," and Cherokee relies on the word "you" being defined as pertaining only to Logistics, which is declared the Named Insured. However, in Change Endorsement #1, plaintiff "is added as an insured" pursuant to Logistics's contract with plaintiff. The Purchase Order clearly requires Logistics to "name [Ford] as an insured." There are no definitions in the General Policy, especially when it is understood in the context of the Purchase Order, that would preclude treating Ford, as an "additional insured," as being a "Named Insured." See State Farm Fire and Cas Ins Co v Old Republic Ins Co, 234 Mich App 465, 469; 595 NW2d 149 (1999) ("the phrase 'the person named in the policy' is synonymous with the term 'named insured'"); Cf. Harwood v Auto- Owners Ins Co, 211 Mich App 249, 53; 535 NW2d 207 (1995) (policy contained a specific definition of "insured" distinct from "named insured"). Because the Additional Insured endorsement is also mandated by the Purchase Order, the only possible reading of the General Policy as a whole is that "you" in the Additional Insured endorsement refers to Logistics or plaintiff. This argument fails irrespective of whether it was preserved or presented.
B. AUTO POLICY
Plaintiff also argues that the trial court erred by granting summary disposition because, even if the General Policy did not apply, Cherokee is liable under the Automobile Liability Policy (Auto Policy). Plaintiff argues that coverage is not excluded under Endorsement #A1, which provides that an "insured" includes:
3. Any Customer who pays for the transportation services provided and whose goods are being transported in a trailer covered by the Policy or this Endorsement; PROVIDED ALWAYS that no coverage exists under this Endorsement for either defense or indemnity of all or any party of a claim, suit, verdict, judgement, or finding of negligence on the part of the customer. [Emphasis added.]
Plaintiff argues that it was not a "customer" because it was a named insured under the policy. The trial court, however, found that plaintiff admitted that it was a customer in its complaint. In Paragraph 34 of the complaint, plaintiff alleged that "[t]he Auto Policy identifies as an insured 'any Customer who pays for the transportation services provided and whose goods are being transported in a trailer covered by the Policy.' Ex. 5, Endorsement #A1." Plaintiff does not challenge the trial court's finding that plaintiff "effectively" admitted that it was a customer, and we reject plaintiff's contrary argument that an insured is not a customer. Therefore, the trial court properly granted summary disposition in favor of Cherokee as to any claim by plaintiff under the Auto Policy.
C. PROMISSORY ESTOPPEL
Plaintiff also argues that the trial court erred by granting summary disposition on its claim of promissory estoppel because Cherokee affirmed in writing that it would cover the Missouri accident. As stated in Klein v HP Pelzer Auto Sys, Inc, 306 Mich App 67, 83; 854 NW2d 521 (2014) (quotation marks and citation omitted), the elements of a claim of promissory estoppel are:
(1) a promise, (2) that the promisor should reasonably have expected to induce action of a definite and substantial character on the part of the promisee, and (3) that in fact produced reliance or forbearance of that nature in circumstances such that the promise must be enforced if injustice is to be avoided. [Citation omitted.]
The trial court concluded that plaintiff could not establish the first prong of promissory estoppel because there was no clear and definite promise of unconditional coverage. Specifically, in a March 31, 2017 e-mail, Cherokee preserved its right to revoke coverage if further investigation revealed changed, new, or different facts. The e-mail provided:
Cherokee is assuming the defense and indemnity under the additional insured endorsement based on the facts as it understands them. If further investigation reveals changed new or different facts, Cherokee reserves the right to revoke coverage.
Plaintiff argues that the reservation of rights was too vague and uncertain and came too late. Plaintiff relies on Meirthew v Last, 376 Mich 33, 38; 135 NW2d 353 (1965), in which the Court explained that a reservation must be specific. In Meirthew, the defendant's insurer provided a defense for the insured in an underlying action, which resulted in a judgment in the plaintiff's favor; when the judgment went unpaid, the plaintiff sought payment from the insurer. The insurer refused to pay, citing a notice it had provided to the defendant more than a year after the suit had commenced, and well after it knew all of the salient facts, generally stating that it was proceeding under a reservation of unspecified rights. Id. at 35-37. The Court held that the notice was insufficient, untimely, and sufficiently vague to "smack[] of bad faith." Id. at 38. We find the facts of this case significantly distinguishable.
Furthermore, the rule is that if an insurer undertakes a defense without providing reasonable notice that it is proceeding under a reservation of rights, it may be estopped from denying its liability by waiver or estoppel, but "usually, the doctrines will not be applied to broaden the coverage of a policy to protect the insured against risks that were not included in the policy or that were expressly excluded from the policy." Kirschner v Process Design Assoc, Inc, 459 Mich 587, 593-594; 592 NW2d 707 (1999). Thus, the doctrine of estoppel will not be applied to broaden coverage under the policies. Therefore, the trial court properly granted summary disposition in favor of Cherokee to the extent of any claims premised on, or expanded by, promissory estoppel.
D. DUTY TO DEFEND AND DUTY TO SETTLE
Lastly, plaintiff argues that Cherokee breached its duty to defend because the allegations were at least arguably covered by the General Policy and Auto Policy. In Matouk v Mich Muni League Liability & Prop Pool, 320 Mich App 402, 409; 907 NW2d 853 (2017), this Court explained:
It is well established that an insurer has a duty to defend an insured and that such duty is not limited to meritorious suits and may even extend to actions which are groundless, false, or fraudulent, so long as the allegations against the insured even
arguably come within the policy coverage. Additionally, [a]n insurer has a duty to defend, despite theories of liability asserted against any insured which are not covered under the policy, if there are any theories of recovery that fall within the policy. In a case of doubt as to whether or not the complaint against the insured alleges a liability of the insurer under the policy, the doubt must be resolved in the insured's favor. [Quotation marks and citations omitted.]Thus, "[i]f the allegations of a third party against the policyholder even arguably come within the policy coverage, the insurer must provide a defense." American Bumper and Mfg Co v Hartford Fire Ins Co, 452 Mich 440, 451; 550 NW2d 475 (1996). The duty to defend will not be triggered if a policy exclusion unambiguously applies. Auto-Owners Ins Co v Harrington, 455 Mich 377, 381; 565 NW2d 839 (1997). However, as discussed, we find a genuine question of material fact as to whether the truck was "attached" to the seat stripper system within the meaning of the policy. We therefore agree that the allegations were arguably covered by at least the General Policy. Summary disposition was therefore improperly granted as to plaintiff's claim based on Cherokee's duty to defend, at least as to the General Policy.
Similarly, "Michigan recognizes an insured's claim against its insurer for bad faith in refusing to settle." J & J Farmer Leasing, Inc v Citizens Ins Co of America, 472 Mich 353, 356 n 3; 696 NW2d 681 (2005). "Bad faith" requires more than mere poor judgment; rather, it requires a state of mind akin to recklessness, selfishness at the expense of the insured's interest, or the absence of a reasonable belief that refusing to compromise was appropriate. See Wakefield v Globe Indem Co, 246 Mich 645, 650-653; 225 NW 642 (1929); Commercial Union Ins Co v Liberty Mut Ins Co, 426 Mich 127, 136-139; 393 NW2d 161 (1986). Plaintiff alleges that Cherokee acted in bad faith by rescinding its promise to defend and negotiating a settlement with the decedent on behalf of the other defendants in this matter. Michigan recognizes that to the extent a party's contractual performance may be discretionary, the party must exercise that discretion in good faith. Ferrell v Tanny Int'l, Inc, 137 Mich App 238, 243; 357 NW2d 669 (1984).
However, Michigan does not recognize a "standalone" cause of action for breaching any such implied covenant of good faith and fair dealing. Bank of America, NA v Fidelity Nat'l Title Ins Co, 316 Mich App 480, 501; 892 NW2d 467 (2016). Rather, the covenant is applicable to whether a party has breached an express contractual duty by the manner in which it performed that duty. Gorman v American Honda Motor Co, 302 Mich App 113, 135-136; 839 NW2d 223 (2013). Even supposing Cherokee acted in "bad faith" generally, plaintiff has not articulated or identified a statute or contractual provision obligating Cherokee to affirmatively seek out and explore the possibility of a settlement, much less that Cherokee "refused" a specific settlement request or offer. We decline to search for any such authority. See Mitcham v City of Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959). Therefore, we conclude that the trial court properly granted summary disposition in favor of Cherokee as to plaintiff's allegation that Cherokee breached a duty to settle.
IV. CLAIMS AGAINST UNIVERSAL AND LOGISTICS
Plaintiff also argues that the trial court erred by granting summary disposition in favor of Universal and Logistics. We agree in part.
A. INDEMNIFICATION UNDER THE GLOBAL TERMS
Plaintiff first argues that the trial court erred by granting summary disposition in favor of Universal and Logistics because Universal and Logistics breached their indemnification duties under the Global Terms. As set forth above, the indemnification provisions are not absolute. Under ¶ 12(a), Logistics's duty to indemnify specifically excludes "to the extent of the negligence of [plaintiff]." Under ¶ 12(b), Logistics specifically "shall not be responsible for or relieve [plaintiff] from liability for claims arising from the willful misconduct or the sole negligence of [plaintiff]." The trial court concluded that Universal and Logistics's refusal to indemnify plaintiff was validated by the Missouri's jury's determination of negligence. We conclude that the trial court erred in part.
Plaintiff first argues that the Missouri jury verdict is not binding. We disagree. The doctrine of collateral estoppel "requires that (1) a question of fact essential to the judgment was actually litigated and determined by a valid and final judgment, (2) the same parties had a full and fair opportunity to litigate the issue, and (3) there was mutuality of estoppel." Estes v Titus, 481 Mich 573, 585; 751 NW2d 493 (2008) (citation omitted). Clearly, plaintiff's negligence or lack thereof was actually litigated, was essential to the verdict, and, having been passed on by the Missouri Supreme Court, is now final. Thus, the jury's verdict is binding in this matter.
See footnote 1.
Plaintiff argues that Walkenhorst, the trucking company, was dismissed from the Missouri action, so the jury could not consider Walkenhorst's potential liability or negligence. However, presuming the jury might have apportioned some fault to Walkenhorst if it had been permitted to do so, the jury did actually find plaintiff to have been significantly at fault and negligent. We recognize that the exclusion in ¶ 12(a) of the Global Terms specifies "to the extent of" plaintiff's negligence (emphasis added). In other words, the provision does not say "unless [plaintiff] was negligent" or similarly absolute preclusionary language. Implicit in "to the extent of" is some kind of partial allocation or apportionment. See Kalamazoo Oil Co v Boerman, 242 Mich App 75, 80-82; 618 NW2d 66 (2000). Therefore, the duty to indemnify does apply to the extent plaintiff incurred expenses, including attorney fees, not arising out of plaintiff's negligence. The jury's award was reduced to 95%, representing plaintiff's apportionment of fault, so there is clearly no duty to indemnify as to that award. However, because the jury found plaintiff to be 5% not at fault, the duty to indemnify might extend to 5% of plaintiff's attorney fees or related expenses of litigation. Therefore, the trial court improperly granted summary disposition, at least in part, as to plaintiff's claims arising out of ¶ 12(a) of the Global Terms.
Plaintiff contends that in Missouri, fault may not be allocated to third parties. We need not address this contention and leave it to the trial court on remand to determine its significance, if any. --------
For similar reasons, we conclude that the trial court erred in finding ¶ 12(b) inapplicable, although as we discuss, this error is irrelevant. The trial court concluded that it did not apply because the driver's injury did not arise out of work performed at the plant, given that Logistics agreed to provide transportation services to plaintiff's plaint. However, ¶ 12(b) applies "[i]f [Logistics] provides services to [plaintiff] on [plaintiff]'s premises[.]" Universal and Logistics were hired to provide transportation services. However, as discussed earlier, there is no dispute that those services involved unloading the seats at plaintiff's plant. Accordingly, we disagree with the trial court that Universal and Logistics did not provide services to plaintiff on plaintiff's premises.
Moreover, we agree with plaintiff that the claims did not arise from the "willful misconduct or the sole negligence" of plaintiff. As discussed, because the jury found the decedent to be 5% at fault, plaintiff cannot have been solely negligent. Furthermore, we are unpersuaded by the argument that the jury found plaintiff to have acted with "willful misconduct." Our Supreme Court has explained that "willful" means "intentional;" and as a sole criterion, "willful" is an even stricter standard than "willful and wanton," which may include mere extreme carelessness. Jennings v Southwood, 446 Mich 125, 139-141; 521 NW2d 230 (1994). In other words, "willful and wanton misconduct" means conduct that is either intentionally harmful or so careless "as to be the equivalent of a willingness" to cause harm. Id. at 140-141 (quotation omitted). In contrast, "willful misconduct" necessarily means intentional misconduct. In the Missouri action, the jury found that plaintiff "showed complete indifference to or conscious disregard for the safety of others." Ford, 585 SW3d at 338. The jury was not instructed that it must find plaintiff to have acted intentionally, so intentional misconduct may not be inferred from its verdict. Consequently, the trial court erred in finding that the exclusion specified in ¶ 12(b) of the Global Terms applies. Nonetheless, for the reasons discussed below, ¶ 12(b) is void.
B. MOTOR CARRIER ACT
Plaintiff argues that the trial court incorrectly found the indemnification provisions in ¶ 12 of the Global Terms void under the Motor Carrier Act, MCL 475.1 et seq. We agree in part.
MCL 479.21(1) of the Motor Carrier Act provides:
A provision, clause, covenant, or agreement contained in, collateral to, or affecting a motor carrier transportation contract that purports to indemnify, defend, or hold harmless, or has the effect of indemnifying, defending, or holding harmless, the promisee from or against any liability for loss or damage resulting from the negligence or intentional acts or omissions of the promisee is against the public policy of this state and is void and unenforceable.Under MCL 479.21(3)(a),
"Motor carrier transportation contract" means a contract, agreement, or understanding for any of the following:
(i) The transportation of property for compensation or hire by a motor carrier.
(ii) Entrance on property by a motor carrier for the purpose of loading, unloading, or transporting property for compensation or hire.
(iii) A service incidental to activity described in subparagraphs (i) and (ii), including, but not limited to, the storage of property.
Plaintiff first argues that the Motor Carrier Act does not apply in Missouri. We need not address that argument, because pursuant to ¶ 26(g) of the Global Terms, Michigan law applies. Furthermore, plaintiff is seeking to enforce ¶ 12 of the Global Terms in Michigan. In general, a state's courts may refuse to enforce a contractual right in contravention of that state's own laws, even if that right might be amenable to vindication in another jurisdiction. Lieberthal v Glens Falls Indem Co of Glens Falls, NY, 316 Mich 37, 42-44; 24 NW2d 547 (1946). The courts may not refuse to uphold a right that arose in another jurisdiction merely because the right could not have arisen here, "provided it is not contrary to the public policy of the forum." Annis v Pilkewitz, 287 Mich 68, 77; 282 NW 905 (1938). A contractual provision that contravenes MCL 479.21(1) is unambiguously contrary to the public policy of Michigan. Therefore, it is sufficient to hold that the Motor Carrier Act applies here.
Next, plaintiff argues that Universal and Logistics are not motor carriers and the Purchase Order and Global Terms, together, were not a motor carrier contract. Plaintiff, however, again takes a position that is contrary to what it alleged in its complaint. Plaintiff alleged that "Universal is a trucking company that provides motor carriage services." Therefore, plaintiff's claim that Universal is not a motor carrier is without merit. Furthermore, we have carefully reviewed the Purchase Order. The Purchase Order describes Logistics as a "supplier," but it extensively lays out details of truck-based shipping, includes "supplemental freight transportation terms," and specifies that "services" or "supplies" under the contract refer to Logistics's provision of "freight transportation services." We conclude that the Purchase Order and Global Terms, read together and as a whole, set forth in substance a motor carrier contract.
Plaintiff next argues that its Global Terms do not violate the Motor Carrier Act. We agree in part. As discussed, ¶ 12(a) of the Global Terms exclude indemnification for plaintiff's own negligence. Thus, ¶ 12(a) of the Global Terms does not appear to contravene MCL 479.21(1). The trial court erred to the extent it granted summary disposition on the grounds that ¶ 12(a) was rendered void by the Motor Carrier Act. In contrast, indemnification under ¶ 12(b) is only precluded if plaintiff was solely negligent or engaged in willful misconduct. Thus, contrary to MCL 479.21(1), ¶ 12(b) of the Global Terms does have the effect of indemnifying plaintiff for loss or damage resulting from plaintiff's negligence. The trial court correctly concluded that ¶ 12(b) of the Global Terms is void under the Motor Carrier Act.
Finally, plaintiff argues that the Motor Carrier Act does not affect Universal and Logistics's duty to procure insurance, which is separate from their duty to indemnify. Plaintiff does not dispute that Universal and Logistics procured two insurance policies on plaintiff's behalf. Rather, plaintiff argues that the policies were insufficient because they did not provide coverage. As discussed, there are some questions of fact whether some coverage is available. In any event, the Purchase Order required Logistics to procure worker's compensation insurance, which is not applicable; commercial general liability insurance, which Logistics procured; and automobile liability insurance, which Logistics procured. The Purchase Order set forth some detailed specifications for the insurance policies (for example, the insurers must have a policyholder's rating of at least "A-" and must be authorized to transact business in the state or states in which services were rendered), but plaintiff has not alleged that Logistics violated those terms. The Purchase Order did not require Logistics to specifically procure insurance to cover plaintiff's negligence.
Otherwise, plaintiff points out that the Purchase Order requires Logistics to name plaintiff as an insured on "any excess or umbrella policy" that Logistics carried. Plaintiff argues that Logistics and Universal have failed to disclose whether they carried "any excess or umbrella policy." We agree that if Logistics carried any such excess or umbrella insurance, the Purchase Order seemingly required Logistics to name plaintiff as an insured on those policies. Plaintiff has provided no evidence that Logistics did carry any such policies. Nevertheless, we agree with plaintiff that without the benefit of discovery, it might be difficult for plaintiff to be able to provide any such evidence. We therefore conclude that summary disposition as to this specific argument was premature, and plaintiff should have the opportunity to discover whether Logistics or Universal did carry any such excess or umbrella policies that did not name plaintiff as an insured. We caution, however, that even if Logistics or Universal violated this specific provision of the Purchase Order, any such violation might be moot or harmless due to the preclusive operation of the Motor Carrier Act or the limitations on indemnification set forth in ¶ 12 of the Global Terms.
V. CLAIMS AGAINST CENTRA
Finally, plaintiff argues that the trial court erred by granting Centra's motion for summary disposition, arguing that plaintiff adequately alleged an alter-ego theory of recovery and that summary disposition was premature. We disagree.
In order to pierce the corporate veil, the following elements must be satisfied: "First, the corporate entity must be a mere instrumentality of another entity or individual. Second, the corporate entity must be used to commit a fraud or wrong. Third, there must have been an unjust loss or injury to the plaintiff." Foodland Distrib v Al-Naimi, 220 Mich App 453, 457; 559 NW2d 379 (1996) (quotation marks and citation omitted). Because the trial court decided Centra's motion under MCR 2.116(C)(8), it is necessary to consider the allegations in the complaint. Pleadings are read as a whole and for their substance, Jahnke v Allen, 308 Mich 472, 475; 865 NW2d 49 (2014), and "primary function of a pleading in Michigan is to give notice of the nature of the claim or defense sufficient to permit the opposite party to take a responsive position." Stanke v State Farm Mut Auto Ins Co, 300 Mich App 307, 317; 503 NW2d 758 (1993). When the complaint is read fairly and as a whole, it adequately alleges that Universal, Logistics, and Cherokee are mere instrumentalities of Centra. We presume, although we do not decide, that plaintiff has alleged that it suffered an unjust loss or injury.
However, we cannot find in the complaint an allegation that Centra used Universal, Logistics, or Cherokee to commit a wrong or a fraud. Rather, the complaint alleges contractual violations on the parts of Universal, Logistics, and Cherokee. At the most, the complaint asserts that Centra may have directed Universal, Logistics, and Cherokee to engage in the alleged contractual violations. Importantly, "piercing the corporate veil" is not a true cause of action, but rather is an equitable remedy that may be invoked where a truly-responsible party seeks to evade legal obligations by abusing the corporate form. Gallagher v Persha, 315 Mich App 647, 654-655; 891 NW2d 505 (2016). The fact that a corporate entity is wholly owned by another entity is insufficient, by itself, to establish abuse of the corporate form. Bourne v Sanford, 327 Mich 175, 191; 41 NW2d 515 (1950). Thus, the possibility that Centra owns Universal, Logistics, and Cherokee does not establish that any of the corporate forms are being abused. Furthermore, plaintiff has not provided any allegation that Centra's ownership means the other defendants would be able to evade responsibility to pay damages to plaintiff in the event plaintiff prevails on any of its claims. We conclude that the prerequisites to piercing the corporate veil have not been satisfied.
Plaintiff also claims that summary disposition was premature with regard to Centra because discovery was not complete and, alternatively, it should be allowed the opportunity to amend its complaint. The trial court, however, found that amendment would be futile because the "purported action of Centra directing the contractual activities of Universal and Logistics in this matter cannot establish the theory of piercing the corporate veil." We agree.
As this Court explained in Liggett Restaurant Group, Inc v Pontiac, 260 Mich App 127, 138; 676 NW2d 633 (2003):
Under MCR 2.116(I)(5), "[i]f the grounds asserted are based on subrule (C)(8), (9) or (10), the court shall give the parties an opportunity to amend their pleadings as provided by MCR 2.118, unless the evidence then before the court shows that amendment would not be justified. Our Supreme Court has held that an amendment is not justified if it would be futile. The term "shall" denotes a mandatory rather than a discretionary course of action. [Citations omitted.]"A determination of futility must be based on the legal insufficiency of the claim on its face." Id. at 139. As discussed, plaintiff essentially alleges a conspiracy directed by Centra and involving the other defendants to prevent Ford from being able to defend or settle the underlying Missouri action. Again, presuming that to be true, either the other defendants violated the terms of their contracts and are thus directly liable to plaintiff, or the other defendants did not violate the terms of their contracts and thus have no liability to pass through to Centra. The trial court properly granted summary disposition in favor of Centra and denied plaintiff's request to amend its complaint.
VI. CONCLUSION
For the reasons set forth above, we rule as follows. The trial court erroneously found no question of material fact whether the equipment that caused the decedent's injuries was "attached" to the truck. We therefore reverse the trial court's grant of summary disposition in favor of Cherokee as to Cherokee's substantive liability and Cherokee's duty to defend under the General Policy. The trial court also erred in concluding that Universal and Logistics were entirely excused from indemnifying plaintiff under ¶ 12(a) of plaintiff's Global Terms, in contrast to ¶ 12(b), insofar as plaintiff was found by the jury to be 5% not at fault, and the Motor Carrier Act does not render ¶ 12(a) void. Furthermore, plaintiff should have the opportunity to discover whether Universal and Logistics carried excess or umbrella insurance that did not name plaintiff as an insured. We therefore reverse in part the trial court's grant of summary disposition in favor of Universal and Logistics. In all other respects, we affirm. The matter is remanded for further proceedings not inconsistent with this opinion. We do not retain jurisdiction. Centra, as the only party to have prevailed in full, may tax costs. MCR 7.219(A). The other parties shall bear their own costs on appeal.
/s/ Michael J. Riordan
/s/ Douglas B. Shapiro
/s/ Amy Ronayne Krause