                        STATE OF MICHIGAN

                        COURT OF APPEALS



LINDA BULLISS,                                     UNPUBLISHED
                                                   June 20, 2017
           Plaintiff,

v                                                  No. 330776
                                                   Kent Circuit Court
STEELCASE, INC,                                    LC No. 13-003196-NO

           Defendant/Third-Party Plaintiff-
           Appellee/Cross-Appellant,

and

TITAN TRANSPORTATION SERVICES, INC,
doing business as SUNSET LOGISTICS,

           Third-Party Defendant-
           Appellant/Cross-Appellee.


TITAN TRANSPORTATION SERVICES, INC,

           Plaintiff-Appellee,

and

STEELCASE, INC,

           Intervening Plaintiff-Appellee,

v                                                  No. 332227
                                                   Kent Circuit Court
SELECTIVE INSURANCE COMPANY OF                     LC No. 14-008018-CK
AMERICA,

           Defendant,

and

SELECTIVE INSURANCE COMPANY OF THE

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SOUTHEAST,

               Defendant-Appellant.


Before: SWARTZLE, P.J., and SAAD and O’CONNELL, JJ.

PER CURIAM.

         These consolidated appeals involve separate but related lawsuits arising from the parties’
disputes over their respective contractual rights and obligations with regard to the
indemnification of a negligence action by plaintiff, Linda Bulliss, against defendant and third-
party plaintiff, Steelcase, Inc. (Steelcase). In Docket No. 330776, Titan Transportation Services,
Inc. (Titan) argues that the trial court in the negligence case erred when it concluded that Titan
was obligated to indemnify Steelcase for Bulliss’s claim. On cross-appeal, Steelcase argues that
the trial court erred when it refused to award it attorney fees and costs under the indemnification
agreement. In Docket No. 332227, Selective Insurance Company of the Southeast (Selective)
argues that the trial court in a related lawsuit (the insurance case) erred when it determined that
Selective’s insurance policy covered the injury at issue in the negligence case and, for that
reason, erred when it declared that Selective had a duty to defend and indemnify Titan and
Steelcase.

        In Docket No. 330776, we conclude that the trial court properly held that the parties’
indemnification agreement obligated Titan to pay the damages Steelcase incurred through
Bulliss’s negligence claim, and that the trial court properly concluded that Titan’s obligation to
indemnify Steelcase did not extend to Steelcase’s attorney fees and costs. In Docket No.
332227, we decline to address Selective’s new argument, which is raised for the first time on
appeal, and find Selective’s argument otherwise insufficient to overturn the trial court’s
judgment. Accordingly, we affirm the trial court’s judgments in both dockets.

                                       I. BACKGROUND

          In March 2010, Titan entered into an agreement with Steelcase—titled the Master
Purchase Agreement (MPA)—in which it agreed to provide Steelcase with transportation
services. In ¶ 9 of that agreement, Titan agreed to purchase liability insurance and to name
Steelcase as an additional insured. It also agreed to “hold harmless and indemnify [Steelcase]
for . . . any claim by any employee” of Titan. In a separate indemnity provision found in ¶ 10,
Titan more broadly agreed to “at all times indemnify, defend and hold harmless [Steelcase], its
agents and employees against and from any and all claims arising from the services provided
hereunder . . . unless due to negligence or willful misconduct by [Steelcase].”

       In October 2012, Linda Bulliss, a driver for Titan, picked up a semitrailer loaded with
merchandise from a Steelcase facility. As she was leaving, she stopped at a security station, and
she and a security guard inspected the cargo. She noticed that some furniture weights were not
strapped down. She expressed concern to the guard, and he purportedly told her that the weights
were heavy enough that they did not need to be strapped down. Bulliss then sealed the trailer


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and transported the load to a destination in Missouri. When she arrived, Bulliss opened the
trailer’s door and a furniture weight fell from the trailer onto her foot and injured her.

        Bulliss sued Steelcase in April 2013 for negligently securing the furniture weights. That
same month, Steelcase’s lawyer notified Titan and Selective about Bulliss’s lawsuit and asserted
that Titan was obligated under the MPA to defend and indemnify it for any losses. Titan refused
to defend Steelcase and Selective similarly denied that the separate Commercial General
Liability (CGL) policy that it issued Titan, upon which Steelcase was named as an additional
insured, covered the injury.

        In September 2013, Steelcase filed a third-party complaint against Titan in the negligence
case. It alleged that Titan breached the MPA by refusing to defend and indemnify it against
Bulliss’s claim. In turn, Titan sued Selective in the insurance case in August 2014. It alleged
that, under the terms of the CGL policy that Selective issued to Titan, Selective was obligated to
defend and indemnify Titan for any losses in the negligence case.

       In September 2014, Steelcase moved for summary disposition in the negligence case. In
December 2014, the trial court denied Steelcase’s motion to dismiss Bulliss’s claim, but granted
Steelcase’s motion on its third-party claim against Titan. With regard to Steelcase’s motion for
summary disposition against Titan, the court concluded that Titan had an obligation to indemnify
Steelcase against Bulliss’s claim under ¶ 9 of the MPA.

        In January 2015, Selective moved for summary disposition on Titan’s claim in the
insurance case. The CGL policy was not simply a reinsurance policy, with liability under the
CGL wholly derivative of liability under another policy. Instead, by its terms, the CGL policy
broadly covered both Titan and Steelcase for “bodily injury and property damage,” with limited
exceptions. Specifically with regard to bodily injury, the CGL policy excluded coverage for
injury “arising out of the ownership, maintenance, use or entrustment to others of any . . . ‘auto’ .
. . owned or operated by or rented or loaned to any insured.” The policy expressly stated that the
term “use” included the “loading or unloading” of a motor vehicle or semitrailer. Selective
argued that Bullis’s injury was excluded from coverage under the policy because she was
involved in the unloading of a trailer at the time of the injury, and that, because the CGL policy
was not triggered, Selective had no obligation to defend or indemnify Titan. In response, Titan
argued that the CGL policy did apply because the term “unloading” was defined in the CGL
policy to mean the handling of property and the evidence showed that Bulliss did not suffer her
injury while handling property. The trial court agreed with Titan and granted Titan’s motion for
summary disposition under MCR 2.116(I)(2).

         In August 2015, Steelcase moved for entry of judgment in the negligence case. It stated
that it had agreed to pay $112,500 to Bulliss to settle the dispute. Because the trial court already
determined that Titan had an obligation to defend and indemnify Steelcase as a matter of law,
Steelcase asked the trial court to enter judgment against Titan for the settlement and for
Steelcase’s attorney fees and costs, which amounted to $87,176.40.

      The trial court in the negligence case issued an opinion and order granting Steelcase’s
motion for entry of judgment. The court held that Steelcase was entitled to judgment on the
amount of the settlement, $112,500, but disagreed that Steelcase was entitled to attorney fees and

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costs under the MPA. Accordingly, on November 30, 2015, the trial court entered judgment in
favor of Steelcase against Titan in the amount of $112,500. Titan then appealed by right the trial
court’s judgment in the negligence case and Steelcase cross-appealed.

       In November 2015, Steelcase moved for permission to intervene in the insurance case
and the trial court granted the motion.

       The trial court in the insurance case issued an opinion and order awarding expenses, fees,
and costs in March 2016 under the separate CGLpolicy. The court held that Steelcase and Titan
were both entitled to the “expenses, attorney fees, and costs that they incurred in taking on the
responsibility that Selective Insurance should have borne in the first instance.” It concluded that
Steelcase should get the $112,500 from the settlement and its requested costs and fees of
$87,176.40.1 It also awarded to Titan the $55,591.40 in fees that it incurred in the Bulliss case
along with $327.38 in costs. In March 2016, Selective appealed by right the judgment against it
in the insurance case. This Court then ordered the appeals consolidated for the efficient
administration of the appellate process. See Bulliss v Steelcase, Inc, unpublished order of the
Court of Appeals, entered April 13, 2016 (Docket Nos. 330776 & 332227).

                                   II. DOCKET NO. 330776

                                 A. STANDARDS OF REVIEW

       In Docket No. 330776, both Titan and Steelcase argue that the trial court erred by
misconstruing the MPA and granting summary disposition on the basis of the erroneous
construction. “This Court reviews de novo whether the trial court properly granted a motion for
summary disposition.” Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich
App 362, 369; 775 NW2d 618 (2009). This Court also reviews de novo whether the trial court
properly construed and applied the parties’ contractual agreement. Miller-Davis Co v Ahrens
Constr, Inc, 495 Mich 161, 172; 848 NW2d 95 (2014).

                                         B. ANALYSIS

        Titan’s Duty to Indemnify Under ¶ 9 of the MPA. We address first Titan’s claim that the
trial court erred when it determined that, under ¶ 9 of the MPA, Titan had a duty to indemnify
Steelcase for Steelcase’s losses from Bulliss’s claim.

       We construe contracts for indemnification in the same manner as any other contract.
Zurich Ins Co v CCR & Co (On Rehearing), 226 Mich App 599, 603; 576 NW2d 392 (1997).
The key concern “is to give effect to the parties’ intention at the time they entered into the
contract.” Miller-Davis Co, 495 Mich at 174. To that end, we must give contracts for indemnity
a reasonable construction so as to carry out, rather than defeat, the purpose for which they were


1
  Recognizing the parallel negligence case, the trial court in the insurance case further held, “If
plaintiff Steelcase has already obtained indemnification from Plaintiff Titan for [the] sum [of
$112,500], then Defendant Selective Insurance shall instead pay $112,500 to Titan.”


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executed. Title Guaranty & Surety, Co v Roehm, 215 Mich 586, 592; 184 NW 414 (1921). If
the agreement for indemnification is ambiguous, the intent of the parties must be determined by
the trier of fact. Sherman v DeMaria Bldg Co, Inc, 203 Mich App 593, 596; 513 NW2d 187
(1994). Where a contract is not ambiguous, however, it is the trial court’s duty in the first
instance, and this Court’s duty on appeal, to enforce the contract as written. Rory v Continental
Ins Co, 473 Mich 457, 468; 703 NW2d 23 (2005); Klapp v United Ins Group Agency, Inc, 468
Mich 459, 469; 663 NW2d 447 (2003). A contract is ambiguous when two of its provisions
irreconcilably conflict, or when a provision is equally susceptible to different meanings. Coates
v Bastian Bros, Inc, 276 Mich App 498, 503; 741 NW2d 539 (2007).

        Two provisions of the MPA are potentially implicated here. In ¶ 9 of the MPA, Titan
agreed to indemnify Steelcase for claims for injuries by its employees against Steelcase.
Specifically, in relevant part, Titan agreed to “hold harmless and indemnify [Steelcase] for any
claim for insurance premium or any claim by any employee of [Titan] for injuries sustained in
the ordinary course of business, including, but not limited to, drivers, lumpers, helpers, agents or
sub-contractors of [Titan].” There was no exception for claims of negligence against Steelcase
in ¶ 9.

       For its part, ¶ 10 of that agreement includes a broader indemnity clause, but one with
exceptions, where Titan agreed to:

       at all times indemnify, defend and hold harmless [Steelcase], its agents and
       employees against and from any and all claims arising from the services provided
       hereunder [] including, without limitation, claims for personal injury, death and
       damage to property, clean-up costs from commodity spills and damage to the
       environment, unless due to the negligence or willful misconduct by [Steelcase].

Thus, unlike ¶ 9, the indemnity of ¶ 10 had an exception for claims of negligence against
Steelcase.

        A plain reading confirms that the provisions of ¶¶ 9 and 10 overlap in part. Whether ¶ 9
or ¶ 10 applies to the facts of this case is dispositive. It is clear from the record that Bullis was a
truck driver for Titan, that she was injured performing the ordinary obligations of Titan’s
transportation contract with Steelcase, and that she claimed Steelcase acted negligently in
causing those injuries. Accordingly, if ¶ 9 applies, Titan has a duty to indemnify Steelcase for
the latter’s damages sustained in the action, as arising from a claim by an employee of Titan,
without regard to any claim of negligence. It is equally clear, however, that if ¶ 10 applies, then
Titan has no duty to indemnify Steelcase, because that provision excludes negligence claims
from Titan’s general duty to indemnify.

        On appeal, Titan maintains that ¶ 10, rather than ¶ 9, applies to Bulliss’s claim against
Steelcase. Titan argues that, because it was undisputed that Bulliss’s claim was due to
Steelcase’s negligence in loading the trailer, and ¶ 10 excepts claims “due to the negligence” of
Steelcase from Titan’s obligation to indemnify, the trial court erred when it determined that Titan
had an obligation to indemnify Steelcase. We disagree.



                                                 -5-
        Where provisions of a contract overlap, a specific provision controls over a more general
provision. See DeFrain v State Farm Mut Auto Ins Co, 491 Mich 359, 367 n 22; 817 NW2d
504, 517 (2012). Paragraph 10 of the parties’ agreement provides that Titan will indemnify
Steelcase for “any and all claims arising from the services provided” under the agreement,
including claims by employees and non-employees, claims of environmental damage, and claims
of property damage, just to name a few. (Emphasis added). Paragraph 9 covers the more limited
situation of a claim for damages by one of Titan’s employee’s against Steelcase. Thus, while
both provisions cover the factual claims by Bullis, ¶ 9 more narrowly and precisely covers the
claims. Accordingly, as the more specific provision, ¶ 9 governs the instant dispute.

        Unlike the more general provision in ¶ 10, in ¶ 9 Titan did not explicitly exclude claims
arising out of Steelcase’s negligence from its obligation to indemnify Steelcase for claims by
Titan employees. Rather, under ¶ 9, Titan agreed to indemnify Steelcase for “any claim by any
employee of [Titan].” (Emphasis added). Despite this language, on appeal, Titan argues that
both paragraphs must be construed in such a way as to graft the limitation on the duty to
indemnify in ¶ 10 onto the duty to indemnify in ¶ 9. Again, we disagree.

        This Court must assume that the parties’ decision to omit an exception from the duty in
¶ 9 was deliberate. Wilkie v Auto-Owners Ins Co, 469 Mich 41, 50 n 11; 664 NW2d 776 (2003)
(stating that courts must read contracts as a whole and give harmonious effect to the contract
whenever possible). Indeed, it is quite plausible that the parties intended that Titan indemnify
Steelcase for a specific subset of claims—claims by its own employees against Steelcase—even
when those claims involved Steelcase’s own negligence, especially given that Titan managed
and oversaw the work of its employees and was in a position to minimize risks to its employees
through training, safety equipment, etc. It is equally plausible that the parties intended that Titan
have no such obligation with regard to the broader class of claims described under ¶ 10 where
Titan may not have been in the better position to minimize risks. There is no basis in the
agreement itself for concluding that the parties intended the broader coverage of ¶ 10 to apply
equally to employee claims under ¶ 9, and we will not read such a limitation into the agreement.
Northline Excavating, Inc v Livingston County, 302 Mich App 621,628; 839 NW2d 693 (2013).

       Accordingly, we conclude that the trial court did not err in determining that ¶ 9 of the
MPA obligated Titan to indemnify Steelcase for the losses incurred as a result of Bulliss’s
lawsuit.

        Titan’s Duty to Indemnify Under ¶ 9 Did Not Extend To Attorney Fees and Costs. On
appeal, Steelcase argues that the trial court correctly determined that Titan had a duty to
indemnify Steelcase for Bulliss’s claim but erred when it determined that the duty did not
include an obligation to pay the attorney fees and costs that Steelcase incurred defending against
Bulliss’s claim. More specifically, Steelcase argues that the terms “hold harmless” and
“indemnify” in ¶ 9 encompass the obligation to reimburse Steelcase for all expenses associated
with the claim covered by the duty to indemnify, including Steelcase’s attorney fees and costs.
We disagree.

       The extent of a party’s duty to indemnify must be determined from the language of the
contract establishing the obligation to indemnify. Miller-Davis Co, 495 Mich at 174. As already
discussed, ¶ 10 does not apply to this dispute and, accordingly, cannot be used to form the basis

                                                -6-
of Titan’s obligation to pay Steelcase’s attorney fees and costs. Any such duty would necessarily
have to be found in ¶ 9.

       While the general rule for common-law indemnity claims appears to be that the
indemnitee recovers reasonable attorney fees and costs from the indemnitor, see Hayes v General
Motors Corp, 106 Mich App 188, 200; 308 NW2d 452 (1981), this general rule does not apply to
claims for indemnity based in contract, see id. at 201. Instead, any contractual claim for attorney
fees and costs “must be based upon the indemnity agreement in issue.” Id. at 201.

        Paragraph 9 does not specifically include an obligation to pay attorney fees and costs.
When an agreement to pay attorney fees and costs is not expressly included in an indemnity
provision, this Court may only read such an agreement into an indemnity provision if the
language of the indemnity provision makes clear that the parties reasonably intended to include
such an agreement. In Hayes, 106 Mich App at 202, this Court concluded that an agreement to
pay attorney fees and costs was included in a provision that the indemnitor would “indemnify,
hold harmless, and defend” the indemnitee. This Court reasoned that the duty to defend
necessarily contemplated a duty to pay attorney fees and costs incurred in that defense. Id. In
Redfern v RE Dailey & Co, 146 Mich App 8, 19; 379 NW2d 451 (1985), this Court similarly
concluded that an agreement to pay attorney fees and costs was included in an indemnity
provision requiring the indemnitor to indemnify the indemnitee “against all claims, liabilities,
losses, damages and expense of every character whatsoever.” This broad language evidenced
the parties’ intent to include all costs, including attorney fees, in the indemnity provision. See id.
at 20. Finally, in Beaudin v Michigan Bell Tel Co, 157 Mich App 185, 189; 403 NW2d 76
(1986), this Court concluded that an agreement to pay attorney fees was not included in a
provision requiring the indemnitor to indemnify and hold harmless the indemnitee “against all . .
. claims.” In that case, the provision to indemnify against all claims was insufficient to conclude
that the indemnitor agreed to pay the attorney fees and costs incurred in defending against those
claims. See id.

        Through ¶ 9, Titan agreed to “hold harmless and indemnify” Steelcase for claims by
Titan’s employees. We conclude that, similar to the indemnity clause in Beaudin, this language
is insufficient to evidence the parties’ intent to include an agreement to pay attorney fees and
costs in ¶ 9’s indemnity clause. We find further support for this conclusion in the fact that the
parties expressly included an obligation to “defend” in ¶ 10, which would likely include an
obligation to pay attorney fees and costs, but omitted similar language from ¶ 9. We must read
that omission as intentional, and therefore we conclude that the trial court did not err by reading
the MPA to exclude liability by Titan for Steelcase’s attorney fees and costs in the negligence
case.

                                    III. DOCKET NO. 332227

        Turning next to the insurance case, Docket No. 332227, Selective argues that the trial
court erred in its conclusion that, because Bullis was not “unloading” the trailer at the time of her
injury, her injury was not excluded from coverage under the GCL’s exception for “use” of an
automobile. Specifically, Selective argues that whether Bullis was unloading the trailer is
irrelevant because her opening the door of the trailer in question otherwise constitutes “use” of
an automobile sufficient to invoke the exception.

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         Throughout the proceedings in the lower court, Selective consistently raised only one
legal argument: Bullis’s injury was excluded from coverage because she was “unloading” the
trailer at the time of her injury, and it was this “unloading” which constituted the “use” of an
automobile, which was excluded from coverage. On appeal, Selective has provided this Court
with no argument sufficient to conclude that the trial court erred in its conclusion that Bullis was
not “unloading” the trailer at the time of her injury, as that term was defined in the CGL policy.

        It was Selective’s burden to prove that the injury was excluded from coverage under the
policy. See Auto-Owners Ins Co v Seils, 310 Mich App 132, 146; 871 NW2d 530 (2015).
Because Selective did not raise below any argument that the “use” exception applied regardless
of Bullis’s purported “unloading” of the trailer, neither Titan nor Steelcase had any notice of or
duty to respond to that argument, see Barnard Mfg, 285 Mich App at 369, and the record was not
fully developed for the trial court to address the issue in the first instance, or for this Court to
address the issue on appeal, see Walters v Nadell, 481 Mich 377, 387; 751 NW2d 431 (2008) (“a
litigant must preserve an issue for appellate review by raising it in the trial court.”); Wilson v
Taylor, 457 Mich 232, 243; 577 NW2d 100 (1998) (stating that it is not this Court’s
responsibility to “discover and rationalize the basis of [an appellant’s] claims, or unravel and
elaborate for him his arguments, and then search for authority either to sustain or reject his
position.”) (internal quotation marks and citation omitted).

         Accordingly, we decline to address this issue on appeal. Bailey v Schaaf (On Remand),
304 Mich App 324, 346; 852 NW2d 180 (2014) (stating that this Court “will exercise its
discretion to review [unpreserved] claims sparingly and only when exceptional circumstances
warrant review.”) Because Selective has not identified any preserved errors that might warrant
relief, we have no basis for disturbing the trial court’s judgment in the insurance case.

                                       IV. CONCLUSION

       We affirm the judgments in both dockets now before us on appeal.



                                                             /s/ Brock A. Swartzle
                                                             /s/ Henry William Saad
                                                             /s/ Peter D. O'Connell




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