HKPC Obtained Summary Disposition In Five Construction Cases Under Fultz V. Union-Commerce

Gary L. Stec of our Grand Rapids office has obtained summary disposition in five separate lawsuits under the Supreme Court’s decision in Fultz v. Union-Commerce Assoc., 470 Mich 460 (2004).

1. In The Estate of Gehl v. ABC Contractor, Allegan County Circuit Court, the Estate brought a wrongful death lawsuit against several defendants involved in the construction of the Douglas Elementary School. The Estate argued that our client negligently performed work on the project that led to the death a steel erector. We filed a motion for summary disposition under MCR 2
   116(C)(8) and argued that the Estate’s complaint did not state a valid cause of action against our clients since there was no separate and distinct duty owed to the decedent under Fultz, and that no exception existed that would allow the Estate to recover against our client. The trial court agreed, but allowed the Estate leave to amend its complaint. The amended complaint added counts of Third-Party Beneficiary and Nuisance in Fact. We renewed our motion under MCR 2.116(C)(8) and (10), and in a twenty-seven page decision issued on December 21, 2010, the trial court dismissed the Estate’s entire complaint, agreeing that our client did not owe the decedent a “separate and distinct duty” from its contract with the General Contractor. The court also agreed that the decedent was not an intended third-party beneficiary under our client’s contract and that the law of nuisance did not apply to the facts of the case. (The Estate’s pre-suit settlement demand was $8,100,000.00.)

2. In Cunningham v. Peters Construction, Kalamazoo County Circuit Court, the plaintiff brought suit against multiple contractors performing road and sidewalk improvements under contract with the City of Portage, alleging negligence, third-party beneficiary and nuisance, for injuries sustained when he rode his bicycle into an area of excavated sidewalk, sustaining fractures to his hand and injury to his knee. On January 10, 2011, the trial court granted summary disposition on all of the plaintiff’s counts, agreeing that no separate and distinct duty was owed by our client to the plaintiff, that the plaintiff was not a specifically intended beneficiary of the safety provisions of our client’s contract, and that the work being performed was not a nuisance.
3. In Hartwig v. Thornapple Excavating, Montcalm County Circuit Court, the plaintiff brought suit against a general contractor and our client on a hotel construction project, for injuries he sustained when he overturned a forklift on the construction site, sustaining severe crush injuries to his lower extremities. The trial court granted summary disposition under Fultz, agreeing that all of the work being performed by our client on the project was in furtherance of its contractual duties to the general contractor, and that no separate and distinct duty was owed to the plaintiff.
4. In State Farm v. Bartholomew Heating & Cooling, Kalamazoo County Circuit Court, a homeowners insurance carrier brought a subrogation lawsuit against contractors performing work on an addition to its insured’s residence, after a fire completely destroyed their home. The renovation project included installation of a gas fireplace, which State Farm alleged was a direct cause of the fire. The court granted summary disposition for our client under Fultz, agreeing that there existed no separate and distinct duty owed to the homeowner or State Farm, outside of our client’s contract with the general contractor.
5. In Osterman v. IMM, Inc., Oceana County Circuit Court, the plaintiff, an employee of Kurdziel Iron, fell through an opening in a platform adjacent to a cupola in the Kurdziel foundry in Rothbury, Michigan, suffering permanent brain and vision injuries. Suit was brought against our client who was hired to perform work on the cupola, including replacement of the adjoining decking. The trial court granted summary disposition under Fultz, agreeing that our client did not owe the plaintiff a separate and distinct duty outside of its contract with Kurdziel, that the plaintiff was not a third-party beneficiary of that contract, and that the work being performed did not create a nuisance.