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### STATE OF MICHIGAN

COURT OF APPEALS

ALTMAN MANAGEMENT COMPANY,

Plaintiff-Appellant, UNPUBLISHED September 20, 2016

v No. 328593 Ingham Circuit Court AON RISK INSURANCE SERVICES WEST, INC., LC No. 13-001106-CK

Defendant-Appellee.

Before: J ANSEN , P.J., and K. F. K ELLY and O’B RIEN , JJ.

P ER C URIAM

.

Plaintiff-appellant, Altman Management Company (Altman), appea ls as of right an order granting involuntary dismissal in favor of defendant-appellee, AON Risk Insurance Services West, Inc. (AON), in Altman’s breach of contract and negligence claim against AON. Finding no errors warranting relief, we affirm.

I. BASIC FACTS

Altman owns and operates a numbe r of properties in several sta tes. AON is an insurance brokerage firm that contracted with Altman to procure, update, and manage Altman’s insurance needs. This case arises from AON’s alleged failure to properlyhandle a claim (the Otero lawsuit), which resulted in a de fault judgment against Altman.

Timothy Peterson, Altman’s CFO, testified that AON was selecte d to serve Altman’s needs because AON was “the industry leader, the gold standard . . .the white-glove service.” Of particularly appeal to Peterson was the fact that AON would man age Altman’s complex insurance needs and provide a “ one-stop-shop” and one primary a dvocate – AON account executive Mike Rosenbach. Derek Lubsen was head of asset manag ement at Altman and reported directly to Peterson. Like Peterson, Lubsen considere d Rosenbach his “point person” at AON. Rosenbach acknowledged that he was responsible for Altman ’s account but that the responsibility primarily involved assigning tasks, not receivin g and submitting claims to Altman’s insurers. Instead, Rosenbach had designated claim con sultant Diane Gerometta and later Wayne Brinkman to handle Altman’s needs.

Altman had no written procedure in place when it came to recei ving and handling claims. However, as a general rule, if there was an incident on any of Altman’s properties, the property manager would forward an incident report to administrative assi stant Marisa Crescenzi. Crescenzi would then put together a file and submit the matter for insurance review. All incident-2- reports were submitted, regardless of whether a claim was forth coming. Importantly, Crescenzi did not handle lawsuits. If a lawsuit was filed against Altman , the matter was generally handled by Judi Mann. Crescenzi would only prepare a file and log prog ress of lawsuits at Mann’s behest. For a few years Crescenzi forwarded incident reports d irectly to Westrope, an insurance wholesaler. However, after one i ncident report lacked the prop er documentation, Westrope insisted that, going forward, Altman first submit the reports t o AON, who would then forward the claim to Westrope.

In January 2010 Carmen Otero was found unresponsive at an Altm an property in Detroit. In June 2011, her estate sued Al tman, claiming that Otero had s uffered carbon monoxide poisoning. When the resident agent for Altman received the law suit, she forwarded it to
Peterson. Peterson then forwarded it to Lubsen and Mann and as ked that the insurer be notified. Lubsen immediately forwarded the matter to Rosenbach at AON wit h a request that Rosenbach get with him about who would be handling the case. Lubsen did not include Brinkman, AON’s claims consultant on the email. Nor did Lubsen follow-up with Rosenbach. Rosenbach testified
that he never saw the email a nd took no action on Altman’s beha lf. A default was entered against Altman on July 25, 2011 after Altman failed to respond to Otero’s complaint. Altman
realized that the matter had been overlooked when it was served with a motion for default judgment. When Crescenzi found out about it, she immediately f orwarded the matter to Brinkman, indicating, “This one f ell through the cracks and an incident report was never filed and I was not copied on the correspondence so unfortunately it was never submitted to you.”
Altman’s motion to set aside the default was denied. Altman an d Otero entered into an arbitration agreement and Altman was ordered to pay the estate $3.5 million.

Thereafter, Altman sued AON for both breach of contract and ne gligence. Altman maintained that AON’s failure to properly submit the Otero matt er to Altman’s insurer had resulted in the $3.5 million judgment. AON contended that, by virtue of the parties’ Compensation Agreement, it had no contractual obligation to rep ort claims for or on behalf of Altman. This agreement, which covered the period in which the Otero claim was made, specifically disclaimed any res ponsibility for reporting Altman ’s claims to Altman’s insurance carriers. Nevertheless, Altman contended that the parties modi fied this agreement through their course of conduct. Specifically, Altman alleged that AON had a lways undertaken reporting
claims to Altman’s insurers and that AON’s failure to do so in the Otero case resulted in significant loss to Altman. At issue during trial, therefore, was how claims were handled and whether the parties had modifi ed this agreement by their conduc t and Altman’s claim procedure.

Following these proofs, the trial court concluded that “there was a course of conduct whereby the parties mutually agreed to Altman’s submission of c laims through Aon.” However, while the trial court found that the Compensation Agreement had been modified to provide that AON would notify Altman’s insuran ce carriers, the trial court f urther determined that there were no firm procedures in place for Altman to report a claim to AON or for AON to receive a claim
from Altman.

Having found that the contract was modified and that no partic ular procedure was in place, the trial court then had to turn its attention to anothe r provision in the Compensation Agreement, which limited AON’s liability:

To the fullest extent permitted by law, [AON] shall have no li ability for any claim or liability asserted by [Altman] for any loss arisin g by reason of, or arising out of any error or omission by [Altman] including any failure to comply-3- with [Altman’s] duty of disclosure. Should any claim or action be brought against [AON] due to an error or omission by [Altman], [Altman] shall i ndemnify [AON] for all damages or losses aris ing from such error or omission.

At trial, Altman argued that it committed no errors. It mainta ined that the Otero matter was properly submitted to the “point man” at AON – Mike Rosenbach a nd that it was Rosenbach’s failure to do anything with the information that caused Altman to default. The trial court disagreed and found that Altman made a number of errors and omi ssions in its handling of the Otero lawsuit. The trial court rejected Altman’s claim that th e errors and omissions clause did not require Altman to indemnify AON against AON’S own negligenc e. The trial court granted AON’s motion for involuntary dismissal. Altman now appeals as of right.

II. ANALYSIS

The trial court granted AON’s mo tion for involuntary dismissal pursuant to MCR 2.504(B)(2). “Unlike the motion for directed verdict, . . . amotion for involuntary dismissal calls upon the trial judge to exe rcise his function as trier of fact, weigh the evidence, pass upon the credibility of witnesses and select between conflicting inf erences.” Marderosian v Stroh Brewery Co , 123 Mich App 719, 724; 333 NW2d 341 (1983). As such, unlike in a motion for a directed verdict a plaintiff f acing a motion for involuntary di smissal “is not given the advantage of the most favorable interpr etation of the evidence.” Id.

“This Court reviews a decision to grant or deny a motion for i nvoluntary dismissal under the clearly erroneous standard. The trial court’s decision will not be overturned unless the evidence manifestly preponderates against the decision.” Phillips v Deihm , 213 Mich App 389, 397; 541 NW2d 566 (1995). The trial court’s factual findings a re likewise reviewed for clear

error. Chelsea Inv Group LLC v Chelsea , 288 Mich App 239, 250; 792 NW2d 781 (2010). “The clear-error standard requires us to give deference to the lower court and find clear error only if
we are nevertheless left with the definite and firm conviction that a mistake has been made.” Jonkers v Summit Twp , 278 Mich App 263, 265; 747 NW2d 901 (2008) (internal quotatio n marks omitted).

Plaintiff’s arguments on appeal also call into question the tr ial court’s interpretation of the parties’ Compensation Agreement. Contract interpretation pr esents a question of law, which requires de novo review. White v Taylor Distrib Co, Inc , 289 Mich App 731, 734; 798 NW2d 354 (2010).

Altman first argues that the t rial court erred w hen it conclud ed that Altman made multiple
errors and omissions in its handli ng of the Otero matter. We d isagree.

The trial court found:

The Court finds that Altman made multiple errors and omissions in the handling of the Otero lawsuit f rom June 20 to July 25. Lubsen e -mailed the lawsuit to only one person at Aon. Although he asked Rosenbach to let him know who would be handling the lawsu it, Lubsen never followed throug h when Rosenbach did not respond. The errors and omissions are not Lub sen’s alone.
Mann was cc’d on the e-mail to R osenbach. She typically handled the reporting of lawsuits. Although she informed Crescenzi to set up a file, she also did not follow through to determine any furth er status of the lawsuit.-4- The efforts to answer the inte rrogatories appear to have been dropped after the June 23 e-mails. Had anyone followed through with having th e interrogatories answered it would have certainly revealed the breakdown in communication and that no attorney had been assigned for Altman.

Altman argues that it fulfilled its duty under the modified Co mpensation Agreement
when Lubsen forwarded the lawsu it to AON account executive Mike Rosenbach and that the trial
court erred when it concluded that Altman had any obligation be yond that to ensure that the matter was handled properly. Essentially, Altman contends that the trial court rebalanced the equities of the modified contract , thereby interfering with the parties’ ability to contract. Our Supreme Court has noted:

This approach, where judges divi ne the parties’ reasonable exp ectations and then rewrite the contract accordingly, is contrary to the b edrock principle of American contract law that parties are free to contract as they see fit, and the courts are to enforce the agreement as written absent some high ly unusual circumstance, such as a contract in violation of law or public policy. This Court has recently discussed, and rein forced, its fid elity to this un derstanding of contract
law in Terrien v. Zwit, 467 Mich 56, 71, 648 NW2d 602 (2002). The notion, that free men and women may reach agreements regarding their affairs without government interference and thatcourts will enforce those agre ements, is ancient and irrefutable. It draws streng th from common-law roots and ca n be seen in our fundamental charter, the United States Constitution, where gove rnment is forbidden from impairing the cont racts of citizens, art. I, § 1 0, cl. 1. Our own state constitutions over the years of statehood have similarly echoed this limitation on government power. It is, in short, an unmistakable and ineradic able part of the legal fabric of our society. Few have expressed the force of th is venerable axiom better than the late Professor Arthur Corbin, of Yale Law Schoo l, who wrote on this topic in his defini tive study of contract law, Corbin on Contracts, as follows:

One does not have “liberty of c ontract” unless organized societ y both forbears and enforces, forbears to penalize him for making his bargain and enforces it for him after it is made. [15 Corbin, Contracts (In terim ed.), ch. 79, § 1376, p. 17.]

[ Wilkie v Auto-Owners Ins Co , 469 Mich 41, 51–52; 664 NW2d 776 (2003).]

The plain language of the parties’ Compensation Agreement spec ifically disclaimed any responsibility for reporting Altman’s claims to Altman’s insurance carriers: “Basic claims advocacy does not include claims notification to insurers . . . it is Your responsibility to take such steps as are necessary to notify directly those insurers w hose coverages may apply to any circumstances, occurrences, claims, suits, demands and losses i n accordance with and as may be required by the terms and conditions of the policies placed for You under this agreement.” The language could not be clearer – AON specifically contracted tha t it had no obligation to submit claims on Altman’s behalf. Still, Altman successfully demonstr ated that the parties, through their actions, had modified the Compensation Agreement. This i s true because “[w]hile the freedom to contract principle is served by requiring courts to enforce unambiguous contracts according to their terms, the freedom to contract also permits parties to enter i nto new contracts or modify their existing agreements.” Quality Products & Concepts Co v Nagel Precision, Inc

, 469 Mich 362, 370–371; 666 NW2d 251 (2003). Where, as here, a party claims that a contract-5- has been modified through affirmative conduct, there must be “c lear and convincing evidence that a contracting party, relying on the terms of the prior con tract, knowingly waived enforcement of those terms,” satisfying the principle of mutual asset. Id. at 373. It is possible “the parties’ past practice is s o widely acknowledged and mutua lly accepted that it amends the contradictory and unambiguous contract language.” Detroit Police Officers Ass’n v City of

Detroit , 452 Mich 339, 340–341; 551 NW2d 349 (1996).

There is no question that the p arties, through their affirmati ve conduct, modified the terms of the Compensation Agreement and that AON waived its rig ht to enforce the provision disclaiming its obligation to report claims to Altman’s insurer s. The evidence revealed that, at least from 2008 until 2010, Altman directly submitted claims to Westrope, with a copy to Gerometta. However, that process changed when Westrope complai ned to Gerometta that Altman had not included specific information needed to process a claim. Going forward, Westrope required Gerometta to submit claims on Altman’s behalf . Gerometta and Brinkman consistently, routinely and repeatedly submitted Altman’s claim s to Altman’s insurers. Even Rosenbach testified that AON’s obligations to Altman included f acilitating contact between Altman and Altman’s’ insurers and that “the process was to repo rt it to their claims consultant.” The trial court properly determined that “there was a course of conduct whereby the parties mutually agreed to Altman’s submission of claims through AON.”

Although pleased with this conclusion, Altman claims that it h ad no obligation under the modified Compensation Agreement to do anything but get the Oter o claim in the hands of an AON employee. Altman cites no provision in the Compensation Ag reement to support this claim, likely because under the plain terms of the contract, th ere was no obligation for AON to submit Altman’s claims to Altman’s insurers in the first place. It follows, then, that the Compensation Agreement does not provide clarity in determining the parties’ duties and obligations for claims reporting. The fact that the trial court determined that the parties had modified the Compensation Agreement does not result in a clear picture of just how, exactly,
Altman was to forward those cl aims to AON or how AON was to rec eive those claims.

Lubsen, Mann and Crescenzi admitted that Altman had no writtenprocedures regarding claim submission. Crescenzi handled all incident reports, but it follows that she could not create a file when a property manager failed to submit an incident rep ort, as happened here. Additionally, while Crescenzi kep t a log of incidents and claim s, both she and Mann testified that Crescenzi was generally u ninvolved with lawsuits. Lubsen, Mann and Crescenzi acknowledged that Gerometta and Br inkman were their claims cons ultants and that most claims went through them. However, Ros enbach was also copied on the c laims.

The trial court did not clearly err in concluding that there w as no established procedure for Altman to report claims to AON nor was there an established procedure for AON to receive those claims from Altman. By noting Altman’s various errors an d omissions, the trial court was not rebalancing the equities or impairing the parties’ ability to contract. The trial court properly concluded that the parties had modified the Compensation Agreem ent through their course of conduct and that AON was obligated to submit Altman’s claims to Altman’s insurers. It concluded that “Neither party had its own established procedure . If neither party had its own procedure, then it can hardly be said that there was mutual agr eement to one established procedure.”

Altman seems to read this to mean that, because there was no e stablished procedure, its only obligation was to see to it that someone at AON received the Otero claim. There is no-6- dispute that Lubsen forwarded the lawsuit to Rosenbach and Rose nbach did nothing with it. If the only issue was whether Altman had sent the claim on to AON, then that would end the inquiry. However, the trial court addressed Altman’s “errors a nd omissions,” not to recreate any provision of the parties’ agreement, but in the context of the liability and indemnification provision of the parties’ C ompensation Agreement:

To the fullest extent permitted by law, [AON] shall have no lia bility for any claim or liability asserted by [Altman] for any loss arising by reaso n of, or arising out of any error or omission by [Altman] including any failure to comp ly with [Altman’s] duty of disclosure. S hould any claim or action be br ought against [AON] due to an error or omission by [Altman], [Altman] shall i ndemnify [AON] for all damages or losses aris ing from such error or omission.

Therefore, the trial court was l ooking at a broader issue than simply whether Altman had, in fact, forwarded the Otero matter to AON; it had to consider whether A ltman committed any errors or omissions that would trigger th e foregoing provision. In short , the trial court’s findings that the Compensation Agreement had been modified and that there was no specific claims procedure
were relevant to whether the contract had been modified but wer e not dispositive of whether
Altman acted without error or omission.

Altman’s errors and omissions were many. Lubsen forwarded the lawsuit only to Rosenbach and other Altman employees, even though Lubsen knew t hat Wayne Brinkman was the AON claims consultant. And, even though Lubsen specificall y asked Rosenbach to acknowledge receipt and send further information, Lubsen never followed up when Rosenbach failed to respond. Altman admittedly had no written procedure for any internal or external claims reporting. Property managers were encouraged to create incident reports for all matters great and small, but the property manager failed to create an i ncident report when Ms. Otero was found non-responsive in her apartment. Had an incident report been submitted, Crescenzi would
have forwarded it to Brinkman at AON. Because there was no inc ident report, Crescenzi did not create a file and had nothing to submit. It was not until afte r Mann received notice of the lawsuit that Crescenzi created a file, but Crescenzi’s involvement withlawsuits was limited. She had no reason to submit the matter to Brinkman, thinking it was alread y being handled by Mann. Mann and French then attempted to answe r interrogatories instead of ensuring that an attorney had been appointed and would handle such d iscovery going forward. In fa ct, Mann did not keep track of the Otero lawsuit by logging any deadlines.

Altman cites Walters v O’Keefe , 377 Mich 37; 138 NW2d 751 (1966), Federspiel v

Bourassa , 151 Mich App 656; 391 NW2d 431 (1986), and Shawl v Spence Bros, Inc , 280 Mich App 213; 760 NW2d 674 (2008) for the idea that Altman was under no duty to follow up with
AON after the Otero lawsuit was forwarded to Rosenbach. But Al tman fails to see that the trial court found more than just a mere failure to follow up – the tr ial court also considered Altman’s failure to have proper procedures in place and its failure to f ollow its own loosely-held informal procedure. Therefore, while Altman may have submitted the clai m to AON and AON was admittedly negligent in failing to take action, Altman’s own er rors and omissions remained relevant for purposes of the hold harm/indemnity provision of t he parties’ Compensation Agreement.

Altman next argues that the trial court erred by applying the limitation of liability and indemnity clauses in the Compen sation Agreement to bar the laws uit. We disagree.-7- Altman argues that the provision is applicable because Altman committed no error or omission. However, as discussed above, the trial court did not clearly err in finding that Altman
committed a number of errors and omissions that contributed to the default being entered in the

Otero matter.

Altman then argues that the ind emnity clause has no applicatio n because indemnity clauses only apply to claims by third parties and not between t he parties, citing Ray D Baker Contractor, Inc v Chri s Nelsen & Son, Inc , 1 Mich App 450; 136 NW2d 771 (1965). However, while indemnification provisions do not generally cover contract disputes between the parties, there is nothing to prevent the parties from contracting for in demnification based on contract performance. “Michigan law provides contracting parties with b road discretion in negotiating the scope of indemnity clauses.” Miller-Davis Co v Ahrens Const, Inc , 495 Mich 161, 173; 848 NW2d 95 reh den 495 Mich 998 (2014). Parties can, and do, cont ract for indemnification liability beyond that arising from third-party claims when theyuse broad language. Indemnity clauses may, if the parties so intend, provide coverage for the indemnitee’s own negligent acts. Sherman v DeMaria Building Co, Inc , 203 Mich App 593, 596-597; 513 NW2d 187 (1994); Fischbach-Natkin Co v Power Process Piping, Inc , 157 Mich App 448, 452; 403 NW2d 569 (1987); Paquin v Harnischfeger Corp , 113 Mich App 43, 52-53; 317 NW2d 279 (1982).

Altman argues that, even if the indemnity clause applies betwe en the parties, AON is not entitled to indemnification for all damages or losses and indem nification is limited to only damages or losses arising from “such” error by Altman. It argu es that Altman did not agree to indemnify AON for AON’s breach of contract or negligence. Our Supreme Court has set forth the following standard for r eviewing indemnity clauses:

As with any other contract, our primary task in construing a c ontract for indemnification is to give effect to the parties’ intention at the time they entered into the contract. We determine the parties’ intent by examinin g the language of the contract according to its plain and ordinary meaning. In do ing so, we avoid an interpretation that would rende r any portion of the contract nu gatory. We assess the threshold question whether a contract’s indemnity clause ap plies to a set of facts by a “straightforward analy sis of the facts and the contr act terms.”

Where parties have expressly c ontracted for indemnification, th e extent of the duty must be determined from the language of the contract. [ Miller-Davis

, 495 Mich at 174 (internal footnotes and quotation marks omitted ).]

In Miller-Davis , the indemnification a greement provided:

You [Ahrens] as Subcontractor/S upplier agree to defend, hold h armless and indemnify Miller–Davis Company ... from and against all cla ims, damages, losses, demands, liens, payments, suits, actions, recoveries, j udgments and expenses including att orney’s fees, interest, sanctions, and co urt costs which are made, brought, or recovered against Miller–Davis Company, by re asons of or resulting from, but not limited to, any injury, damage, loss, o r occurrence arising out of or resulting from the performance or execution of this P urchase Order and caused, in whole or in part, by any act, omission, fault, negli gence, or breach of
the conditions of this Purchase Order by the Subcontractor/Supp lier, its agents, employees, and subcontractors regardless of whether or not caus ed in whole or in part by any act, omission, fault, breach of contract, or neglig ence of Miller–Davis-8- Company. The Subcontractor/Supplie r shall not, however, be obli gated to indemnify Miller–Davis Company for any damage or injuries cause d by or resulting from the sole negligence of Miller–Davis Company. [ Miller-Davis , 495 Mich 174-175.]

At issue was whether the clause applied to corrective work perf ormed by the general contractor. The Court of Appeals had concluded that the indemnity provision did not apply because there had been no “claim or demand.” The Supreme Court reversed, fin ding that “[t]he language used by the parties in contracting for indemnity is unambiguous and clearly intended to apply as broadly as possible.” Id. at 175. The Court went on to state:

While the indemnity clauses specifically mention a “claim,” the y also trigger liability more broadly, when “damages, losses, demands,” or “ex penses,” result from “any act, omission, fault, negligence, or breach....” Furt hermore, the
definition of “claim” itself is broad. Black’s Law Dictionary defines a claim as the “aggregate of operative facts giving rise to a right enforceable by a court,” and “any right to payment or to an equitable remedy....” [ Id. (internal footnotes omitted).]

In the case at bar, the broadly -worded indemnification agreeme nt requires indemnification for “all” damages or losses “arising by reason of, or arising out of any error or omission” by Altman. Citing MSI Const Managers, Altman argues that “arising from such error or omission” in the indemnity clause is the equivalent of “to t he extent” language as used in MSI Const Managers, which found that in the event that both parties to the contract were negligent, the indemnor was only responsible for indemnifying the indemnee for the percentage of the subcontractor’s negligence. MSI Const Managers, 208 Mich App at 343-344. “Arising from” should not be given the limited int erpretation that Altman sugg ests.

“Arise” is defined as “to result; spring or issue.” Random Hous e Webster’s College Dictionary (1997).

***

In interpreting an insurance c ontract containing the language “arising out of,” we held that such language requires a causal connection th at is more than incidental. Similarly, in interpr eting a workers’ compensation statute, MCL 418.301, containing the language “aris ing out of,” we held that this language requires a causal connection. [ People v Johnson , 474 Mich 96, 100–101; 712 NW2d 703 (2006).]

This Court has also noted that “[t]he term “arising out of” doe s not mean proximate cause in the strict legal sense” and that “a lmost any causal connection or r elationship will do.” Shinabarger v
Citizens Mut Ins Co , 90 Mich App 307, 313–314; 282 NW2d 301 (1979). “The question to be answered is whether the injury ‘originated from,’ ‘had its orig in in,’ ‘grew out of,’ or ‘flowed from’” the party’s conduct. Id. Here, the broad language of the agreement encompasses indemnification for Altman’s conduct because, as discussed in I ssue I, its numerous errors and omissions played a part in the Otero default judgment. There w as a causal connection between
Altman’s errors and omissions and t he default judgment that was more than incidental.-9- Nor is Badiee v Brighton Area Schools helpful to Altman. In Badiee , this Court concluded that the parties’ indemnification agreement was meant to apply solely to the
indemnor’s acts and not the indemnee’s. Badiee, 265 Mich App at 352-355. This was true because the language of the parties’ indemnification agreement was silent on the issue and the surrounding circumstances did not support a finding that the pa rties contemplated that the indemnee’s own acts were included. In contrast, the indemnity provision in the case at bar could not be clearer: “To the fullest extent permitted by law, [AON] shall have no liability for any claim or liability asserted by [Altman] for any loss arising byreason of, or arising out of any error or omission by [Altman] including any failure to comply w ith Your duty of disclosure.” The second provision provides: “Sh ould any claim or action be b rought against [AON] due to an error or omission by [Altman], [Altman] shall indemnify [AON] f or all damages or losses arising from such error or omission.” Thus, whereas indemnity as betwe en the two parties was not specifically provided for in the indemnity agreement in Badiee , indemnity between the two parties was clearly contempla ted and provided for in the case a t bar.

The trial court concluded:

The language in the Compensation Agreement in the present case is not limited, as in MSI Const Managers , and it is not absent, as in Badiee . The errors and omissions clause is expressly stated in the broadest possib le terms. Aon has no liability for any claim made against Aon by Altman for any l oss arising out of any error or omission by Altman.

Beyond the broad nature of the la nguage is the fact that it co vers any claim by Altman against Aon. Unlike clauses that cover third party li ability but are silent with respect to claims b etween indemnitor and indemnitee , this clause focuses only on claims made by Altman against Aon. This languag e conclusively shows that the parties contemplated some claim by Altman agains t Aon, such as breach of contract or negligence, and that Altman agreed to ind emnify Aon even if Aon was negligent. Only in the face of Aon’s sole negligence would the indemnification clause not appl y. Aon is not solely negligent.

Altman asks this Court to assist it in obtaining justice. Altm an may have every right to be indignant over Aon’s mishandling of its claim . One would not expect that a company at Aon’s level would commit such an egreg ious error and cause its own client such enormous consequences. However, Altma n freely contracted with Aon to indemnify Aon for Altman’s own errors an d omissions. When Altman did that, it took on the risk that it, too, would m ishandle something as important as a multi-million dollar lawsuit. Despite the ris k, Altman made no standard internal procedures for handling claims against it. Wh at procedure they did have was either not known by essential people at Altman or was not followed in this case by essential people at Altman. Per Altman’s agreem ent, Aon is not
liable.

The trial court did not err in concluding that the parties’ Co mpensation Agreement barred
Altman’s claims.

Finally, Altman claims that, even if it committed any errors o r omissions, such comparative negligence was irrelevant to its breach of contractcause of action and also did not act as a complete bar to its ne gligence action. We disagree.-10- “As a general proposition, part ies are free to enter into any contract at their will, provided that the particular contract doe s not violate the law or contra vene public policy.

. . . In a variety of settings, this Court has upheld the validity of exculpatory agreements or releases that absolve a party from liability for damages caused by the party’s neglig ence.” Cudnik v William Beaumont Hosp , 207 Mich App 378, 383–384; 525 NW2d 891 (1994). It is not co ntrary to the public policy of Michigan for a pa rty to contract against liabi lity for that party’s own ordinary negligence. St. Paul Ins v Guardian Alarm, 115 Mich App 278, 283; 320 NW2d 244 (1982). And, as previously stated, “Michigan law provides contracting p arties with broad discretion in negotiating the scope of indemnity clauses.” Miller-Davis, 495 Mich at 173. T he parties clearly contemplated their rights, duties and obligations when they fre ely entered into the broadlyworded indemnification agreement.

Affirmed. 1 As the prevailing party, AON may tax costs. MCR 7.219.

/s/ Kathleen Jansen /s/ Kirsten Frank Kelly
/s/ Colleen A. O'Brien

1 Having affirmed the trial court’s order, we see no need to add ress AON’s alternative grounds
for affirmance.