Court of Appeals, State of Michigan

ORDER

Joshua Zacks v Jeff Zacks

Docket No. 342274

LC No. 16-000653-NI

Elizabeth L. Gleicher 

Presiding Judge

Cynthia Diane Stephens 

Thomas C. Cameron 

Judges

In its January 29, 2018 order, the trial court held that Defendant Total Outdoor was not, as a matter 

of law, required to indemnify Defendant, 1101 Washington, under their lease agreement. In our August 

28, 2020 opinion, we concluded, inter alia, that the trial court erred because the issue of indemnification 

must be decided by the trier of fact, not decided as a matter of law. However, this Court’s opinion 

erroneously stated that the trial court’s order was “[a]ffirmed.” 

Accordingly, our August 28, 2020 opinion is hereby VACATED, and we issue a new opinion that 

correctly reflects that the trial court’s opinion is affirmed in part, reversed in part, and remanded for

proceedings consistent with the opinion.

/s/ Elizabeth L. Gleicher

Presiding Judge

November 19, 2020
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

-1-

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

JOSHUA ZACKS,

Plaintiff,

UNPUBLISHED

November 19, 2020

v No. 342274

Wayne Circuit Court

JEFF ZACKS, doing business as UNLIMITED 

INSTALLATIONS SERVICES,

LC No. 16-000653-NI

Defendant.

and

1101 WASHINGTON, LLC,

Defendant/Cross-Plaintiff-Appellant, 

and

TOTAL OUTDOOR CORPORATION,

Defendant/Cross-Defendant-Appellee.

ON RECONSIDERATION

Before: GLEICHER, P.J., and STEPHENS and CAMERON, JJ.

PER CURIAM.

Defendant-Cross-Plaintiff, 1101 Washington, LLC (“Washington”), appeals the trial 

court’s January 16, 2018 order denying its motion for summary disposition. This appeal also 

concerns the trial court’s January 29, 2018 order, which dismissed Washington’s cross-claim. We 

affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I. BACKGROUND

In November 2013, Total Outdoor Corporation (“Total Outdoor”) entered into a lease 

agreement with Washington for the purpose of installing, operating, and maintaining an 

advertising sign on the exterior of a building located at 1101 Washington Boulevard in Detroit, 
-2-

Michigan. After entering into the lease, Total Outdoor contracted with defendant Jeff Zacks, doing 

business as Unlimited Installations Services (“Unlimited Installations”), for the installation of an 

advertising sign. On November 1, 2015, Jeff Zacks (“Jeff”) asked plaintiff Joshua Zacks 

(“plaintiff”) to come to the building the next day and to bring lunch for the workers installing the 

sign. 

On November 2, 2015, plaintiff went to the building and proceeded to the building’s roof. 

Plaintiff reached the roof by utilizing a staircase. After collecting lunch orders from the installation 

crew, plaintiff walked down the staircase to the building’s second floor. Plaintiff did not recognize 

his surroundings. Instead of continuing down the stairs, plaintiff turned right and walked down an 

unlit hallway. Thereafter, plaintiff fell down an abandoned elevator shaft and sustained injuries to 

his head, back, feet, spinal cord, and pelvis.

Plaintiff filed suit in the trial court against several defendants. After commencement of the 

underlying action, Washington filed a cross-claim against Total Outdoor, seeking a declaration 

that Total Outdoor was contractually obligated to defend and indemnify Washington against 

plaintiff’s claims under their lease agreement, which contained a “hold harmless” provision. After 

the close of discovery, Washington moved for summary disposition on its cross-claim, asserting 

that Total Outdoor was contractually obligated to defend and indemnify Washington. In response, 

Total Outdoor argued that Washington’s motion should be denied because plaintiff’s injuries did 

not occur on a portion of the “ ‘leased premises’ that formed the basis of the contract between 

Washington and Total Outdoor.” Total Outdoor also argued that summary disposition should be 

granted in its favor under MCR 2.116(I)(2). In a reply brief, Washington argued that the hold 

harmless provision in the lease applied to activities “in, on, or around the Building” and was not 

limited to activities occurring within the leased portion of the premises. Washington also argued 

that the lease provision broadly applied to claims “arising out of” Total Outdoor’s exercise of its 

rights under the lease. 

After hearing oral argument, the trial court denied Washington’s motion in a January 16, 

2018 opinion and order. The trial court determined that Washington was impermissibly seeking 

to “expand” the hold harmless provision “to include not only the leased premises but the entire 

building” and that Washington had failed to provide necessary facts to support its motion for 

summary disposition. The trial court also determined that Total Outdoor was not required to 

indemnify Washington for the latter’s own negligence because the lease did not contain clear and 

explicit language expressing the parties’ intent to that effect. On January 29, 2018, the trial court 

entered an order, which dismissed Washington’s cross-claim. In so holding, the trial court 

referenced the rationale outlined in its January 16, 2018 opinion and order.

Washington sought, and was denied, interlocutory review in this Court. Zacks v 1101 

Washington, LLC, unpublished order of the Court of Appeals, entered April 20, 2018 (Docket No. 

342274). Subsequently, Washington sought leave to appeal to our Supreme Court. Under MCR 

7.305(H)(1) and in lieu of granting leave to appeal, our Supreme Court remanded this case to this 

Court for consideration as on leave granted. Zacks v Zacks, 503 Mich 1013 (2019).
-3-

II. STANDARDS OF REVIEW

“This Court reviews de novo whether a 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). In reviewing a grant or denial of summary disposition under MCR 

2.116(C)(10), this Court considers “the pleadings, admissions, and other evidence submitted by 

the parties in the light most favorable to the nonmoving party. Summary disposition is appropriate 

if there is no genuine issue regarding any material fact and the moving party is entitled to judgment 

as a matter of law.” Sallie v Fifth Third Bank, 297 Mich App 115, 117-118; 824 NW2d 238 (2012) 

(quotation marks and citations omitted). Summary disposition is proper under MCR 2.116(I)(2) 

“[i]f it appears to the court that the opposing party, rather than the moving party, is entitled to 

judgment” as a matter of law.

The interpretation of clear contractual language is an issue of law that is reviewed de novo 

on appeal. DeFrain v State Farm Mut Auto Ins Co, 491 Mich 359, 366-367; 817 NW2d 504 

(2012). “Whether contract language is ambiguous is a question of law, which this Court reviews 

de novo.” Farm Bureau Mut Ins Co v Nikkel, 460 Mich 558, 563; 596 NW2d 915 (1999).

III. ANALYSIS

Washington argues that the trial court erred by denying its motion for summary disposition 

because, under the clear and unambiguous terms of the lease, Total Outdoor was required to defend 

and indemnify Washington against plaintiff’s claims. We disagree.

Contracts are interpreted according to their ordinary and plain meaning. DeFrain, 491 

Mich at 367. If a contract’s language is clear, its construction is a question of law for the court. 

Henderson v State Farm Fire & Cas Co, 460 Mich 348, 353; 596 NW2d 190 (1999). However, 

“[i]f the contract is subject to two reasonable interpretations, factual development is necessary to 

determine the intent of the parties and summary disposition is therefore inappropriate. If the 

contract, although inartfully worded or clumsily arranged, fairly admits of but one interpretation, 

it is not ambiguous.” Meagher v Wayne State Univ, 222 Mich App 700, 722; 565 NW2d 401 

(1997).

As relevant to this appeal, the relevant portion of the lease states:

Hold Harmless. Tenant shall indemnify, defend and hold Landlord 

harmless from all claims, losses, damages, judgments and expenses, including 

reasonable attorney’s fees arising out of Tenant’s exercise of its rights under this 

Lease including the construction, installation, placing, operating, maintaining, 

servicing or removal of the Sign or otherwise occurring in, on, or around the 

Building from the acts or omissions of Tenant, its agent, employees, contractors or 

anyone acting at Tenant’s discretion.

The parties agree that the hold harmless provision requires Total Outdoor to “indemnify, 

defend, and hold [Washington] harmless from all claims, losses, damages, judgments and 

expenses” that arise out of Total Outdoor’s exercise of its rights under the lease. However, the 

parties disagree as to whether the provision also covers all claims and losses “otherwise occurring 
-4-

in, on, or around the Building” that are unrelated to Total Outdoor’s exercise of its rights under 

the lease, but resulting from the activities of Total Outdoor or its contractors. 

We conclude that the hold harmless provision is not subject to only one interpretation. 

Specifically, when implementing the rules of contractual interpretation, it is unclear whether the 

phrase “occurring in, on, or around the Building from the acts or omissions of Tenant, its agent, 

employees, contractors or anyone acting at Tenant’s discretion” is intended to be included in part 

of a disjunctive list or whether it is intended to be a standalone provision. The provision’s structure 

begins with the general statement that Total Outdoor will indemnify and defend Washington from 

all claims and losses arising from Total Outdoor’s exercise of its rights under the lease. The 

provision then uses the word “including” to introduce a list of actions that comprise those rights, 

i.e., “the construction, installation, placing, operating, maintaining, servicing or removal of the 

Sign[.]” The clause “otherwise occurring in, on, or around the Building” is preceded by the word 

“or,” which “refers to a choice or alternative between two or more things.” AFSCME Council 25 

v Wayne Co, 292 Mich App 68, 92-93; 811 NW2d 4 (2011). Thus, the provision’s grammatical 

structure (although inartfully worded) could support that the clause is part of a disjunctive list that 

concerns alternative ways in which Total Outdoor can exercise its rights under the lease. However, 

the grammatical structure could also support that Total Outdoor is required to “indemnify, defend, 

and hold [Washington] harmless from all claims, losses, damages, judgments and 

expenses . . . otherwise occurring in, on, or around the Building from the acts or omissions of 

Tenant, its agent, employees, contractors or anyone acting at Tenant’s discretion.” Because the 

hold harmless provision is “subject to two reasonable interpretations, factual development is 

necessary to determine the intent of the parties and summary disposition [was] therefore 

inappropriate.” See Meagher, 222 Mich App at 722. The meaning of the indemnification clause 

must be decided by the trier of fact. See Farmers Ins Exch v Kurzmann, 257 Mich App 412, 418; 

668 NW2d 199 (2003) (“Ambiguities in a contract generally raise questions of fact for the jury[.]”).

Next, Washington argues that the trial court erred by requiring clear or explicit language 

within the lease to evidence the parties’ intent that Total Outdoor was required to indemnify 

Washington for Washington’s own negligence.1 We agree.

When denying Washington’s motion for summary disposition and when dismissing 

Washington’s cross-claim, the trial court found that there was “no express agreement contained in 

the Lease at bar which would require [Total Outdoor] to indemnify [Washington] under the facts 

of this case.” In doing so, the trial court stated that Michigan law followed the general rule that, 

 

1 Washington asserts the trial court raised this issue sua sponte when issuing its opinion denying 

Washington’s motion for summary disposition. As a result, the issue does not conform to our 

traditional preservation requirements for appellate review. See Hines v Volkswagen of America, 

Inc, 265 Mich App 432, 443; 695 NW2d 84 (2005) (“Generally, an issue is not properly 

preserved if it is not raised before, and addressed and decided by, the trial court.”). However, 

consistent with previous holdings of this Court, we find that, because the trial court considered 

and decided the issue, it is preserved for review. See Mills v White Castle Sys, Inc, 199 Mich 

App 588, 591-592; 502 NW2d 331 (1992) (“We believe that the trial court had the opportunity to 

consider the issue and that it was sufficiently preserved for review.”).
-5-

absent clear and express language, an indemnification agreement cannot be construed to require 

an indemnitor to indemnify an indemnitee against its own negligence. However, as Washington 

points out, this rule of construction is no longer used by Michigan courts. See Badiee v Brighton 

Area Sch, 265 Mich App 343, 353; 695 NW2d 521 (2005) (holding that “[i]ndemnity clauses need 

not expressly mention the indemnitee’s own acts to provide coverage for them”). Instead, courts 

are to determine “the parties’ intent from other language in the contract, surrounding 

circumstances, or from the purpose sought to be accomplished by the parties.” Id. (quotation marks 

and citations omitted). Thus, Washington is correct that the trial court relied on an invalid rule of 

law.

Washington further asserts that the lease’s insurance provision provides suitable evidence 

that the parties’ intended for Total Outdoor to indemnify Washington for its own negligence. The 

insurance provision provides as follows:

Insurance. Tenant will, at all times during the term of this Lease, maintain 

at Tenant’s expense a Commercial General Liability insurance policy naming the 

Landlord as an additional insured, with combined single limits of at least 

$1,000,000 for bodily injury or property damage. Tenant shall pay all premiums 

therefore as due and shall deliver, upon request of the Landlord, a copy of the 

certificate of insurance.

Without reference to either the record or any legal authority, Washington asserts that the 

only reason for this insurance provision would be for Total Outdoor to indemnify Washington and, 

thus, provides evidence of the parties’ intent and serves as a basis for summary disposition 

concerning Total Outdoor’s obligations under the lease. However, as a general rule “[s]ummary 

disposition is suspect where motive and intent are at issue . . . .” Foreman v Foreman, 266 Mich 

App 132, 135; 701 NW2d 167 (2005). Moreover, after reviewing the record, we conclude that the 

arguments were not fully developed before the trial court.

In sum, although the trial court properly denied Washington’s motion for summary 

disposition, it did so for the wrong reasons and erred by holding that Total Outdoor was not 

required to indemnify Washington for the latter’s own negligence because the lease did not contain 

clear and explicit language expressing the parties’ intent to that effect. The trial court also erred 

by granting summary disposition in favor of Total Outdoor on the cross-claim given the 

ambiguities in the contract. Therefore, we reverse the trial court’s January 29, 2018 order and 

affirm its January 16, 2018 order to the extent that it denied Washington’s motion for summary 

disposition. See Varela v Spanski, 329 Mich App 58, 72; 941 NW2d 60 (2019) (“an appellate 

court may affirm the lower court if that court reached the right result for the wrong reason”).

Affirmed in part, reversed in part, and remanded for further proceedings consistent with 

this opinion. We do not retain jurisdiction.

/s/ Elizabeth L. Gleicher 

/s/ Cynthia Diane Stephens 

/s/ Thomas C. Cameron