Order Michigan Supreme Court

Lansing, Michigan 

September 24, 2008 Clifford W. Taylor,

 Chief Justice 

136382 Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Maura D. Corrigan 

Robert P. Young, Jr. TIMOTHY ZAHN, Stephen J. Markman, Plaintiff, Justices 

v SC: 136382 

 COA: 274994 

Genesee CC: 04-079555-NO 

KROGER COMPANY OF MICHIGAN,

Defendant,

Cross-Plaintiff-Appellee,

and 

F.H. MARTIN CONSTRUCTION COMPANY,

 Defendant, Cross-Defendant, 

 Third-Party Plaintiff-Appellee, 

and 

CIMARRON SERVICES, INC.,

 Third-Party Defendant-Appellant. 

_________________________________________/ 

On order of the Court, the application for leave to appeal the March 27, 2008 

judgment of the Court of Appeals is considered, and it is GRANTED. The parties shall 

include among the issues to be briefed: (1) whether a contractual indemnification clause 

limiting the indemnitor’s liability to the indemnitor’s own negligence, but including 

delegation of the indemnitee’s duties, can support an award of indemnification arising out 

of the settlement of a negligence claim made against the contractual indemnitee; 

(2) whether MCL 600.2956 and the abolition of joint and several liability has had any 

effect on the potential contractual indemnification liability of employers for injuries 

sustained by their employees; (3) whether a settlement of a suit brought by an injured 

employee against alleged tortfeasors may legally be viewed as encompassing the 

damages attributable to the negligence of the employee’s employer, where the employer 

has no tort liability exposure to the injured employee by virtue of the Worker’s Disability 

Compensation Act exclusive remedy, MCL 418.131(1), but has contractually assumed a 

duty of care owed by an indemnitee; (4) whether, despite the WDCA’s exclusive remedy 

provision, the third-party defendant employer in this case voluntarily subjected itself to 
 _________________________________________ 

 

2 

liability for the payment to its employee of damages attributable to its own negligence by 

entering into the indemnification agreement; and (5) whether the holding in Gerling 

Konzern Allegemeine Versicherungs AG v Regents of the Univ of Michigan, 472 Mich 44 

(2005), has any effect on the appropriate resolution of this case. 

The Clerk of the Court is directed to place this case on the January 2009 session 

calendar for argument and submission. Appellant’s brief and appendix must be filed no 

later than November 10, 2008, and appellees’ brief and appendix, if appellees choose to 

submit an appendix, must be filed no later than December 12, 2008. 

The Michigan Association for Justice and Michigan Defense Trial Counsel, Inc. 

are invited to file briefs amicus curiae, to be filed no later than December 26, 2008. 

Other persons or groups interested in the determination of the issues presented in this 

case may move the Court for permission to file briefs amicus curiae, with such briefs to 

be filed no later than December 26, 2008. 

0923 

I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the 

foregoing is a true and complete copy of the order entered at the direction of the Court. 

September 24, 2008 

 Clerk