If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.

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### 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Plaintiff, UNPUBLISHED August 27, 2020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.

Before : G L E I C HER

, P .J., and S TEPHENS and C AMERON , JJ.

P ER C URIAM

.

Defendant

- Cross

- Plaintiff

, 1101 Washington, LLC ( “ Washington ” )

, appeals the trial

court ’ s orde r denying its motion for summary disposition. We affirm

.

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, Michigan. After entering into the lease, Total Ou tdoor 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- 2

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(“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 order s from the installation

crew
, plaintiff walked down the staircase to the building ’ s second floor. Plaintiff did not recogniz e his surroundings

. I nstead of continuing down the stairs, plaintiff turn ed right and walk ed down an unlit hallway

. T hereafter, p laintiff fell down an abandoned elevator shaft and sustain ed 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, Washingto n filed a cross

- claim against Total Outdoor, seeking a declaration

that Total Outdoor was contractually oblig at ed to defend and indemnify Washington against plaintiff ’ s claims under their lease agreement, which contained a “ h old h armless” provision

. After

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

- claim, asserting

th at 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 .” In a reply brief, Washington argued that the h old h armless provision in the l ease 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 e xercise 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

ind emnify Washington for the latter ’ s own negligence because the lease did not contain clear and explicit language expressing the parties ’ intent to that effect.

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 t his case to this Court for consideration as on leave granted. Zacks v Zacks , 503 Mich 1013 (2019).

II. STANDARDS OF RE VIEW

“ This Court reviews de novo whether a trial court properly grant ed 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- 3

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as a matte r of law.” Sallie v Fifth Third Bank , 297 Mich App 115, 117

- 11 8; 824 NW2d 238 (2012) (quotation marks and citation s omitted).

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). “Wh ether 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 first 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 mea ning. 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 a rranged, 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, m aintaining, 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 th e hold harmless pro vision requires Total Outdoor to “indemnify, defend, and hold [Washington] harmless f rom 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 whe ther the provision also cover s all claims and losses “otherwise occurring 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 o missions 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 gener al 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

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i.e., “the construction, installation, placing, operating, maintaining, servicing or removal of the Sign[.]” T he clause “otherwise occurring in, on, or around the Building” is preceded by the word “or,” which “refers to a choice or alternati ve 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 al ternative 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, jud gments 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 reasonabl e 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 . Consequently, because the factfinder needs

to determine the intent of the parties

, the trial court did not err by denying Washington’s motion for summary disposition. See Farmers Ins Exch v Kurzmann , 257 Mich App 412, 418; 668 NW2d 199 (2003) ( “A mbiguities 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 Wa shington’s motion for summary disposition, t he 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 s tated

that Michigan law followed the general rule that, absent clear and express language, an indemnification agreement can not 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

“t he parties ’ intent from other language in the contract, surrounding circumstances, or from the purpose sought to be accomplishe d by the parties. ” Id . (quotation marks and citations omitted )

. Thus, Washington is correct that the trial court relied on an invalid rule of law when denying its motion for summary disposition

.

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

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Washington further asserts that the lease ’ s insurance prov ision 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 le a st $1,000,000 for bodily injury or property damage. Tenant shall pay all premiums

therefore as due and shal l 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 Was hington 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 i ssue

. . . . ” Foreman v Foreman , 2 6 6 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

.

Affirmed.

/s/ Elizabeth L. Gleicher /s/ Cynthia Diane Stephens

/s/ Thomas C. Cameron