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### STATE OF MICHIGAN

COURT OF APPEALS

PATRICIA SOLIS and BENJAMIN SOLIS,

Plaintiffs, UNPUBLISHED July 26, 2016

v No. 326259 Wayne Circuit Court THE KROGER CO. OF MICHIGAN, LC No. 12-004379-NO

Defendant/Third-Party PlaintiffAppellee,

and

THE GREENER SIDE, INC.,

Third-Party Defendant-Appellant.

Before: R IORDAN , P.J., and S AAD and M. J. K ELLY , JJ.

P ER C URIAM

. In this indemnification dispute, third-party defendant, The Gr eener Side, Inc., appeals by right the trial court’s final o rder resolving th e underlying li tigation. On appeal , The Greener Side argues that the trial court erred when it granted the motion fo r summary disposition by thirdparty plaintiff, The Kroger Co. of Michigan’s (Kroger), on reco nsideration. Because we conclude that the trial court did not err when it determined th at The Greener Side had an obligation to indemnify Kroger unde r the relevant agreement, we affirm.

I. BASIC FACTS

In December 2011, Patricia Solis slipped and fell on an isolat ed patch of ice in the parking lot of a Kroger store. Solis and her husband sued Krog er for damages arising from Solis’ fall in March 2012. Kroger then sued its snow and ice re moval contractor, Progressive Irrigation, Inc. (Progressive), as well as Progressive’s subcon tractor, The Greener Side, in a third-party complaint. The trial court dismissed Kroger’s comp laint against Progressive after Progressive agreed to assume Kroge r’s defense and indemnify it against the claims. The Greener Side acknowledged the subcontract, but denied that it had an ob ligation to indemnify Kroger or otherwise breached the subcontract.-2- In April 2013, The Greener Side moved for summary disposition of Kroger’s third-party claim. It argued that it only had an obligation to defend and indemnify Kroger under the agreement if the underlying loss were caused by its acts or omi ssions under the agreement to provide snow and ice removal services. It presented evidence t hat there was no snow or ice event or call that obligated it to provide snow or ice removal services on the day of Solis’ fall. From this, it maintained, its failure to perform snow or ice re moval services could have no causal connection to the events gi ving rise to S olis’ suit.

In May 2013, Kroger responded and also moved for summary dispo sition. It argued that the indemnification provisions in the agreement were broad and required The Greener Side to indemnify and defend if the underlying claim involved The Green er Side’s work under the contract without regard to whether its acts or omissions actual ly caused the injuries at issue.

The trial court initially granted The Greener Side’s motion, b ut vacated its decision and granted Kroger’s motion on reconsideration. Kroger ultimately settled with Solis and her husband. The Greener Side now appeals in this Court.

II. SUMMARY DISPOSITION

A. STANDARDS OF REVIEW

This Court reviews de novo a trial court’s decision on a motio n for summary disposition. Dancey v Travelers Property Cas Co , 288 Mich App 1, 7; 792 NW2d 372 (2010). This Court also reviews de novo the proper in terpretation of a contractual agreement. Rory v Contl Ins Co

, 473 Mich 457, 464; 703 NW2d 23 (2005).

B. ANALYSIS

As an initial matter, in granting Kroger’s motion for summary disposition on reconsideration, the trial cour t adopted the “reasons stated in [Kroger’s] motion for reconsideration and brief in s upport.” Thus, to the extent tha t the trial court adopted Kroger’s various theories pertaining to t he obligations or liability of The Greener Side’s general liability insurer, Secura Insurance, the c ourt erred. Michigan courts “m ay not make ‘[a]n adjudication affecting’ the rights of a person or entity not a party to the case.” Shouneyia v Shouneyia , 291 Mich App 318, 323; 807 NW2d 48 (2011) (citations omitted). Nev ertheless, we conclude that the trial court came to the corre ct result as to The Greener Si de’s obligations under the indemnification agreement.

Indemnity contracts are construed in the same manner as any ot her contract. Badiee v Brighton Area Schools , 265 Mich App 343, 351; 695 NW2d 521 (2005). The language of the contract sets the extent of the indemnitor’s duty. Zahn v Kroger Co of Mich , 483 Mich 34, 40; 764 NW2d 207 (2009). “This Court ha s generally observed that i f the language of the contract is clear and unambiguous, it is to be construed according to its p lain sense and meaning.” Id . at 41. Moreover, courts are not permitted to make a new contract for t he parties “under the guise of a construction of the contract, if doing so will ignore the plain meaning of words chosen by the parties.” Id. The threshold question in any in demnification action is whether the indemnity clause applies to the underlying claim at issue. Miller-Davis Co v Ahrens Const, Inc , 495 Mich-3- 161, 174; 848 NW2d 95 (2014). To answer this question, this co urt conducts a “straightforward analysis of the facts and the contract terms.” Id . (quotation marks and citation omitted).

In paragraph nine of the subcont ract, The Greener Side agreed to defend and indemnify Progressive and the owner—logica lly, the owner of the underlyin g property—for any claim connected with its wor k under the agreement:

9. INSURANCE AND INDEMNIFICATIO N: Subcontractor takes the ent ire risk of any and all personal injuries or property damage arisin g out of or in any way connected with the work of Subcontractor. To the fullest e xtent permissible by law, Subcontractor shall indemnify, hold harmless and defend Progressive Irrigation, Inc. and Owner, their employees, agents and represe ntatives from and against any and all damages, expenses, claims and suits of what ever nature resulting from damages or injuries, including death, to any pro perty or persons, caused by, arising out of, or connected with any action, omissi on or operation under this contract or in any connection with work attributable to Subcontractor, any Subcontractor of Subcontractor, and any of their respective employees, agents or representatives. . . .

The Greener Side argues that t his indemnifica tion provision do es not apply because it had no obligation to perform snow and ice removal services on the d ay of Solis’ fall and, therefore, there was no “action, omission, or operation under this [sub]co ntract” on which to premise liability. Stated another way, The Greener Side argues that th e underlying injuries must be causally related to some act, om ission, or operation by it befo re it will be obligated to defend or indemnify. The indemnification provision is not, however, ambi guous and plainly does not require proof that the Greener S ide’s acts or omission caused t he harm at issue.

The Greener Side agreed to take “the entire risk of any and al l personal injuries or property damage arising out of or in any way connected ” with its performance under the contract. To that end, it agreed to “indemnify, hold harmless and defend” Progressive and Kroger “from and against any and all damages, expenses, claims and suits of whatever nature” if the claims or suits were “resulting from damages or injuries, including death , to any property or persons, caused by, arising out of, or connected with any action, omissi on or operation under this contract or in any connection with work attributable to [The Greener Sid e] . . . .” The terms require The Greener Side to defend and indemnify Kroger, in relevant part, if 1) there is a claim or suit, 2) the claim or suit resulted from i njuries to any property or per son, and 3) the injuries were caused by, arose out of, or were connected with any action, omission or operation under the subcontract or had “ any connection ” with The Greener Side’s work. Because The Greener Side agree d to defend and indemnify Kroger if t he underlying claim had any con nection with its acts, omissions, or operations, or any connection to its work under t he subcontract, Kroger did not have to show that the underlying claim had merit or that it was in fact caused by The Greener Side’s acts or omissions; it was enough to show that the underl ying claim had some “connection” –however minimal—to the work that The Greener Side performed or was to perform under the subcontract.-4- In this case, the undisputed evi dence showed that the claims b y Solis and her husband had a connection to The Greener Side’s work. Solis and her hus band claimed that they suffered damages after Solis encountered ice in Kroger’s parking lot, sl ipped, fell, and suffered an injury. It was also undisputed that, under the terms of the subcontract , The Greener Side had the obligation to remove snow and ice in the parking lot during the days preceding and up to the day of Solis’ fall—that is, The Greener Side’s performance (or fail ure to perform) under the contract plainly encompassed ice hazards in the parking lot. The claims by Solis and her husband were, accordingly, connected to The Greener Side’s actions, omissions , or operations under the terms of the subcontract because the c laims involved injuries connect ed to the failure to prevent or remove ice from Kroger’s parking lot; it does not matter that T he Greener Side may have fully and properly performed under the agreement and may not in fact have caused the ice to persist or form, or that its performance or failure to perform might not h ave caused Solis’ fall. Because this indemnification provision is unambiguous, this Court must enforce it as written. Rory , 473 Mich at 470.

Under the terms of the indemnif ication provision, The Greener Side had an obligation to defend and indemnify Kroger against the claims by Solis and her husband. Consequently, the trial court did not err when it granted Kroger’s motion for sum mary disposition on reconsideration. Given our resolution of this issue, we declin e to consider The Greener Side’s remaining claims of error.

Affirmed. As the prevailing par ty, Kroger may tax its costs. MCR 2.719(A).

/s/ Michael J. Riordan /s/ Michael J. Kelly