In its third-party complaint Tepco alleges that DMP's act of negligence in failing to provide plaintiff with a safe place to work was a breach of an implied warranty that the work required by the terms of DMP and Tepco's contract would be performed in a safe and workmanlike manner. See, Nash v Sears, Roebuck Co, 383 Mich. 136; 174 N.W.2d 818 (1970). As Tepco has sufficiently pled a claim for contract damages, the trial court should have afforded Tepco the opportunity to establish at trial that DMP did, in fact, breach this implied warranty.

1. CONDITION PRECEDENT In Nash v Sears Roebuck & Co, 383 Mich 136, 142-143; 174 NW2d 818 (1970), our Supreme Court explained that in every services contract, there exists an implied duty "to perform in a diligent and reasonably skillful workmanlike manner." According to defendant, this duty was actually a condition precedent to the parties' contract, so plaintiff was required to prove that it satisfied this condition before it was entitled to recovery.

In so ruling, the Court did not rely on Ryan or its progeny. Rather, it cited Nash v Sears, Roebuck Co, 383 Mich. 136; 174 N.W.2d 818 (1970), in which the Michigan Supreme Court stated: "Every contract of employment includes an obligation, whether express or implied, to perform in a diligent and reasonably skillful workmanlike manner.

Thus, in order to pursue its argument that Moody's breached the contract by improperly preparing its publication, Compuware was forced to invoke the duty implied under Michigan law to perform contractual obligations "skillfully, carefully, diligently, and in a workmanlike manner." Nash v. Sears, Roebuck Co., 383 Mich. 136, 174 N.W.2d 818, 821 (1970); Co-Jo, Inc. v. Strand, 226 Mic.App. 108, 572 N.W.2d 251, 253-54 (1997), superseded by statute on other grounds, Mich. Court Rules 7.208(1). The Michigan Supreme Court has recognized that this implied contractual duty "is clearly a form of the traditional negligence standard."

Nevertheless, Rohrscheib cites to two cases to support its contention that its duty to perform in a workmanlike manner and to provide caissons free of defect are separate and distinct from the contract: Loweke v. Ann Arbor Ceiling & Partition Co., 809 N.W.2d 553 (Mich. 2011), and Nash v. Sears, Roebuck & Co., 174 N.W.2d 818 (Mich. 1970). Neither case supports Rohrscheib's position.

Plaintiffs also argue that the trial court erred in dismissing the implied warranty claim. Plaintiff cites Nash v. Sears Roebuck & Co., 383 Mich. 136; 174 N.W.2d 818 (1970), for the proposition that "[t]here is a common-law implied warranty in connection with the rendering of a service contract that the service contract willbe performed in a safe and skillful manner.

To perform work in a workmanlike manner "is to do the work as a skilled workman would do it." Morris v. Fox, 135 N.E. 663, 664 (Ind.App. 1922); see also Nash v. Sears. Roebuck Co., 174 N.W.2d 818, 821 (Mich. 1970)("[T]he standard of comparison or test of efficiency is that degree of skill, efficiency, and knowledge which is possessed by those of ordinary skill, competency, and standing in the particular trade or business for which [the worker] is employed.") (quoting 17 Am. Jur.2d Contracts § 371); Nulite Indus. Co. v. Home, 556 S.E.2d 255, 256 (Ga.App. 2001) (holding duty to perform in workmanlike manner breached when worker "fails to exercise a reasonable degree of care, skill, and ability under similar conditions and like surrounding circumstances as is ordinarily employed by others in the same profession.") (quoting Hall v. Harris. 521 S.E.2d 638, 643 (Ga.App. 1999)). An agreement to perform in a workmanlike manner does not promise a certain end result but, rather, is an "`in process' concept" focusing on "the nature of the conduct [a contracting party] provides when rendering services."

1 Restatement Agency, 2d, § 226, comment b, p 500. We recognized the viability of 1 Restatement Agency, 2d, § 226 in Nash v. Sears, Roebuck Co, 383 Mich. 136, 139-140; 174 N.W.2d 818 (1970). In a number of other contexts, our intermediate appellate courts have found instances where physicians have acted as an agent of more than one principal.

The liability is not based on the third-party defendant's breach of a duty to the plaintiff, for which breach the third-party plaintiff is held responsible by operation of law as in common-law indemnity, but rather on the breach of the undertaking to the third-party plaintiff. See Nash v Sears, Roebuck Co, 383 Mich. 136, 142; 174 N.W.2d 818 (1970). Contractual indemnity, whether express or implied, subjects a defendant who is an employer of an injured worker to liability for damages resulting from injury in the workplace that otherwise has been abrogated by the exclusive remedy provision of the workers' compensation act. It is one thing to enforce an employer's express agreement to indemnify where the employer has clearly and unambiguously assumed that liability. It is quite another to impose liability on an employer who, while he promised to take certain actions, did not expressly agree that the consequence of the failure to do so would be the assumption of liability for damages suffered by an injured worker, although liability therefor has been abrogated by statute.

We repeat that the only liability an abstracter has to an injured third-party is with respect to negligent performance of his or her contractual duty. As to the measure of the duty required to be exercised by the abstracter, Chief Justice T.M. Kavanagh noted in Nash v. Sears, Roebuck Co., supra, [ 383 Mich. 136], at page 142 [ 174 N.W.2d 818]: "Every contract of employment includes an obligation, whether express or implied, to perform in a diligent and reasonably skillful workmanlike manner."