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### STATE OF MICHIGAN

COURT OF APPEALS

SKANSKA-SCHWEITZER, also known as SKANSKA-SCHWEITZER , A JOINT VENTURE

Plaintiff-Appellant, UNPUBLISHED December 13, 2016

v No. 328031 Calhoun Circuit Court FARM BUREAU GENERAL INSURANCE COMPANY OF MICHIGAN, LC No. 14-002227-CK

Defendant-Appellee.

Before: M. J. K ELLY , P.J., and O’C ONNELL and B ECKERING , JJ.

P ER C URIAM

. Plaintiff, Skanska-Schweitzer ( Skanska) appeals as of right th e trial court’s order granting summary disposition under MCR 2.116(C)(10) to defendant, Farm B ureau General Insurance Company of Michigan (Farm Bureau), in Skanska’s declaratory act ion regarding Farm Bureau’s responsibility to defend Skanska i n a separate lawsuit. We rev erse and remand.

I. FACTUAL AND PROCEDURAL BACKGROUND

In November 2006, Skanska and Battle Creek Public Schools (the school) entered into a construction management contract that involved in part renovati ons to an elementary school’s playground. Skanska agreed to spec ific duties, such as receivi ng bids and advising the school regarding bid awards. The contr act also contained a specific p rovision that allowed the schools to contract with parties outside of the construction manager co ntract.

In August 2009, the school contr acted with Horrocks Nursery Fa rms, Inc. (Horrocks) for landscaping services at the elementary school. The landscape c ontract named Skanska as the construction manager, but it expressly allowed the school to aw ard contracts connected to the project but outside Skanska’s adm inistration. Horrocks had a c ommercial insurance policy with Farm Bureau. The insurance policy specifically named Skanska a s an insured and provided coverage for “those sums that th e Insured becomes legally oblig ated to pay as damages because of ‘bodily injury’ or ‘property da mage’ to which this insurance applies.”

In late September 2009, the school asked Skanska to obtain a p rice quote to remove a teeter totter at the elementary school. Skanska’s representati ve, Thomas Beuchler, testified at deposition that he forwarded the request to Horrocks, who infor med Skanska that it could do the-2- work for $1,000. Beuchler informed the school of the price, an d the school told Beuchler to have the work done. Beuchler then told Horrocks to proceed with the work and that Skanska would submit a change order shortly. As a Horrocks employee removed the teeter totter, he left the unmoored teeter totter unattended and it fell on Cameron Wiggin s. On October 5, Horrocks submitted a “Request Change Order” to add removing the teeter t otter to the part ies’ contract, but Skanska refused to authorize the change order.

Wiggins subsequently sued Horrocks and Skanska for negligence. Skanska submitted letters to Horrocks and Farm Bureau that asked Farm Bureau to d efend and indemnify Skanska in the Wiggins action. Skanska ultimately filed its claim for declaratory relief in this action, alleging that Farm Bureau was contractually obligated to defend and indemnify Skanska. Farm Bureau moved for summary disposition, asserting that Horrocks’s policy only applied to claims against Skanska for work that Horrocks conducted for Skanska. According to Farm Bureau, because Skanska never approved a change order to add the teeter totter to the scope of the landscaping contract and the schoo l paid Horrocks directly for the work, the teeter totter removal was under a separate contract with the school, and Farm Bureau was not obligated to defend or indemnify Skanska.

Skanska responded that there was a question of fact regarding whether Horrocks removed the teeter totter “for” Skanska. The trial court disagreed, co ncluding that Horrocks did not remove the teeter totter for Skanska because Horrocks removed i t under a separate contract. Accordingly, the trial court also concluded that Farm Bureau di d not have a duty to defend or indemnify Skanska. After the trial court denied Skanska’s moti on for reconsideration, Skanska filed this appeal.

II. STANDARDS OF REVIEW

This Court reviews de novo the trial court’s decision on a mot ion for summary disposition. Gorman v American Honda Motor Co, Inc , 302 Mich App 113, 115; 839 NW2d 223 (2013). When a party moves the trial court for summary disposi tion under MCR 2.116(C)(8) and (10) and the trial court cons idered documents outside the p leadings when deciding the motion, we review the trial c ourt’s decision under MCR 2.116(C) (10). Hughes v Region VII Area Agency on Aging , 277 Mich App 268, 273; 744 NW2d 10 (2007). A party is entitl ed to summary disposition under MCR 2.116(C)(10) if “there is no genu ine issue as to any material fact, and the moving party is entitled to judgment . . . as a m atter of law.” A genuine issue of material fact exists if, when viewing the record in the light m ost favorable to the nonmoving party, reasonable minds could differ on the issue. Gorman , 302 Mich App at 116.

This Court reviews de novo the proper interpretation of a cont ract, Klapp v United Ins Group Agency, Inc , 468 Mich 459, 469; 663 NW2d 447 (2003), and the legal effect of a contractual provision, DeFrain v State Farm Mut Auto Ins Co
, 491 Mich 359, 366-367; 817 NW2d 504 (2012). This Court applies the same principles to con tractual interpretation as to statutory interpretation, with the purpose of determining and e nforcing the parties’ intent. See Klapp , 468 Mich at 468. The goal of c ontractual interpretation is t o honor the parties’ intent and to enforce the contract’s plain terms. Davis v LaFontaine Motors, Inc , 271 Mich App 68, 73; 719 NW2d 890 (2006). We discern the parties’ intent from the c ontract’s language. Id

.-3- III. DUTY TO DEFEND

Skanska contends that the trial court erred when it determined that Farm Bureau had no duty to defend Skanska under Horrock s’s policy. We agree.

While both an insurer’s duty to defend and its duty to indemni fy arise “only with respect to insurance afforded by the policy, . . . the duty to defend i s broader than the duty to indemnify.” American Bumper & Mfg Co v Hartford Fire Ins Co , 452 Mich 440, 450; 550 NW2d 475 (1996). “If the allegations of a third party against the policyholder e ven arguably come within the policy coverage, the insurer must provide a defense.” Id. at 450-451. We must resolve any doubt about whether allegations in the complaint come within the scope of t he policy in favor of the insured. Detroit Edison v Mich Mut Ins Co , 102 Mich App 136, 142; 301 NW2d 832 (1980).

Farm Bureau argues that Skanska cannot rely on the allegations in Wiggins’s complaint to determine coverage because Skanska is not insured under Horr ocks’s policy. The relevant policy language names Skanska as an insured “only with respect to liability . . . in the performance of [Horrocks’s] ongoing operations . . . where thos e operations are being conducted by [Horrocks] for the additional insured.”

In the lawsuit regarding the teeter totter, Wiggins alleged th at Skanska was liable because of actions taken by a Horrocks employee while the employee was performing landscaping work. Wiggins’s complaint sought to hold Skanska liable for injuries that ultimately resulted from Horrocks’s actions. We conclude that the trial court erred in granting defendant summary disposition because the allegations in Wiggins’s complaint that Horrocks was doing work for Skanska were sufficient to tri gger Farm Bureau’s duty to defend Skanska against that complaint.

IV. DUTY TO INDEMNIFY

Skanska also contends that the trial court erred in granting s ummary disposition regarding Farm Bureau’s duty to indemnify because there were genuine ques tions of material fact regarding whether Horrocks was doing work “for” Skanska. We ag ree.
As stated in our decision in the companion case, Wiggins v Horrocks Nursery Farms

, unpublished opinion per curiam of the Court of appeals (Docket No. 328027), removal of the teeter totter was not originall y part of the landscape contract between Skanska and Horrocks and was not subsequently made a part of that contract through a cha nge order. However, the language of Horrocks’s insurance policy is broader than whether Horrocks and Skanska had a contract regarding the work; under the contractual language, th e existence of coverage depends on whether Horrocks performed the teeter totter removal pursuan t to ongoing operations that Horrocks was conducting for Skanska:

A. Section II – Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Declarati ons [which includes Skanska], but only with respect to liability for “bodi ly injury”, “property damage” or “personal and advertising injury” caused, in whole or in part, by:

1. Your acts or omissions; or-4- 2. The acts or omissions of those acting on your behalf;

in the performance of your ongoing operations at all locations where those operations are being conducted by you for the additional insure d(s).

The trial court’s determination that the teeter totter removal was not part of any direct contract between Skanska and Horrocks, standing alone, does not provide a sufficient basis for granting summary disposition. Fir st, the various construction contracts allowed the school to enter into contracts outside of Skanska’s administration but in connection with the project. Accordingly, even if Horrocks did not remove the teeter totter for Skanska but removed it pursuant to a separate contract, the teeter totter removal was at a location where Horrocks was conducting operations for Skanska. Second, while the lack of a n express contract is certainly evidence that Horrocks did not remove the teeter totter for Ska nska, it does not preclude such a finding. Skanska presented evidence that it procured Horrocks to perform the teeter totter removal for the school and that, without Skanska’s involvement, Horrocks would not have been engaged in the teeter totter removal when Wiggins was injured. Third, though Skanska did not approve the change order that Horrocks submitted, Horrocks did in fact submit a request to change its contract with Skanska to include the teeter totter r emoval. This provides further evidence that the teeter totter removal was a part of ongoing o perations that Horrocks was conducting for Skanska.

For these reasons, we conclude t hat reasonable minds could dif fer regarding whether Horrocks performed the teeter totter removal pursuant to ongoin g operations Horrocks was conducting for Skanska at the elementary school. Accordingly, we conclude that the trial court improperly granted summary disposition on this issue under MCR 2.116(C)(10).

We reverse and remand for further proceedings. We do not reta in jurisdiction.

/s/ Michael J. Kelly /s/ Peter D. O’Connell /s/ Jane M. Beckering