The Michigan Court of Appeals affirmed the Circuit Court's decision, Ohio Farmers Ins. Co. v. Marcelli Constr. Co. Inc., No. 221502, 2001 WL 1404785, Opinion (Mich.Ct.App. Nov. 9, 2001), and the Michigan Supreme Court denied further review. Ohio Farmers Ins. Co. Inc. v. Marcelli Constr. Co. Inc., No. 120805, Order, 467 Mich. 879, 672 N.W.2d 856 (Mich. Sept. 20, 2002). After the Michigan Supreme Court denied review, Plaintiffs filed a second suit in Oakland County Circuit Court, asking the court to set aside the previous judgment.
Controlling case law imposes only a good faith requirement on sureties exercising their rights under an indemnity agreement. Transamerica Ins. Co. v. Bloomfield, 401 F.2d 357 (1968); Ohio Farmers Ins. Co. v. Marcelli Construction Co., 2001 Mich. App. LEXIS 2338, decided on Nov. 9, 2001 (Docket No. 221502). Here, even if the Court assumes for purposes of this Opinion that all of the Indemnitors' assertions are true, the Court cannot find that Plaintiff acted in contravention of the Indemnity Agreement, including any requirement of good faith.