United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT [#42]
GERSHWIN A. DRAIN, UNITED STATES DISTRICT COURT JUDGE
August 21, 2018, Plaintiffs Moonbeam Capital Investments, LLC
and The Travelers Indemnity Company (together, the
“Plaintiffs”) filed the instant negligence and
contractual indemnity claims against Defendant Integrated
Construction Solutions, Inc. (“Defendant”). ECF
before the Court is Defendant's Motion for Summary
Judgment, filed on August 30, 2019. ECF No. 42. Plaintiffs
filed a Response on September 20, 2019. ECF No. 47. Defendant
filed its Reply on October 3, 2019. ECF No. 51. A hearing on
Defendant's Motion was scheduled for January 16, 2020.
After reviewing the parties' briefs, the Court finds that
no hearing on the Motion is necessary. See E.D.
Mich. LR 7.1(f)(2). For the reasons that follow, the Court
will DENY Defendant's Motion for Summary
claims stem from an accident at the Radisson Hotel on
February 16, 2017. ECF No. 1, PageID.3. On that date, a
mirror in the bathroom of Room 239 allegedly fell and landed
on a capped water line. ECF No. 47, PageID.1501. This
accident purportedly caused “severe water damage
throughout the hotel, ” including personal property and
business income losses. ECF No. 1, PageID.4.
allege that Defendant was negligent in using a damaged cleat
to install the mirror in Room 239; failing to properly seat
the mirror on the cleat; failing to allow adequate clearance
between the lighting fixtures and the mirror; failing to
properly inspect the work performed to ensure that the mirror
was properly seated to prevent it from falling over the
exposed water line; amongst other things. ECF No. 1, PageID.
The Remodeling Project
Moonbeam (“Moonbeam”)-the hotel owner-undertook a
remodeling project and therefore hired Defendant to perform
certain construction services, including renovating certain
bathrooms. Id. at PageID.3. Moonbeam handled the
furniture component of the project-specifically the
purchasing and assembling of the guestrooms' new pieces.
ECF No. 42, PageID.1117, 1118. According to Lacey Ramsey, the
hotel's engineer responsible for training his staff on
how to assemble the furniture, his team was charged with
building each room's luggage rack/bench, television
stand, headboard, and bathroom vanity. ECF No. 47,
PageID.1498. The vanities had to be assembled in the
bathrooms due to their large size. See Id. at
PageID.1499; see also ECF No. 42, PageID.1118
was tasked with removing and reinstalling the guestroom's
bathroom mirrors once new lighting fixtures and wallpaper
were situated. ECF No. 47, PageID.1498. Defendant allegedly
installed the mirrors back on the wall before it would
install the light fixtures. ECF No. 42, PageID.1122.
According to Defendant, Moonbeam remained “in control
of what rooms were worked in and when [Defendant] got the
rooms to work in.” Id. at PageID.1117.
Specifically, Moonbeam allegedly entered the work area
regularly, especially in the evenings when Defendant left for
the day. Id. Defendant purports that it thus
“never had exclusive control of the hotel rooms.”
The Accident in Room 239
morning of February 16, 2017, an exposed water line in Room
239's bathroom was severed, causing the release of water
that ultimately damaged 3 floors of the hotel's
south-wing. ECF No. 47, PageID.1495. None of the rooms in the
south-wing were occupied at the time of the accident.
Id. at PageID.1502.
asserts that Mick Hartman, a vinyl contractor, first
discovered the claimed water loss and traced it to Room 239.
ECF No. 42, PageID.1123. He allegedly noticed that there was
no mirror hanging from the wall. Id. In its
Response, though, Plaintiffs argue that Moonbeam employee
Ndiame Diop first discovered the claimed water loss. ECF No.
47, PageID.1501. Mr. Diop testified that when he entered Room
239 shortly after 7:00 a.m. on the morning of the accident,
he saw the bathroom mirror resting on the exposed, severed
line. Id.; see also ECF No. 47-18,
239's mirror was purportedly on the wall for
approximately ten days before the accident. ECF No. 42,
PageID.1123. During this time, construction work continued in
the hotel, which Defendant argues caused the rooms' walls
to vibrate, including Room 239. Id. Defendant
further denotes that Moonbeam was assembling
furniture-including new, bulky vanity sets for the
bathrooms-in the second-floor standard rooms during this
time. Id. at PageID.1118. According to Mr. Sabbagh,
Moonbeam would “take control of the rooms and work in
them to assemble the furniture” once Defendant left for
the day. ECF No. 42-3, PageID.1159.
afternoon of the accident, the mirror was allegedly moved
from Room 239 to the hotel manager Mr. Gary Sabbagh's
office. ECF No. 47, PageID.1502. Defendant then hired an
independent adjuster, John Burke to inspect and photograph
both Room 239 and the fallen mirror. Id.
also retained investigator Paul Izzo. ECF No. 47,
PageID.1502. Mr. Izzo inspected Room 239, the mirror, and the
cleats on February 28, 2017. Id. He denoted that the
mirror cleats showed “no evidence of damage or
distress.” ECF No. 47-21, PageID.1813. After Mr.
Izzo's inspection, the mirror was moved to an evidence
storage unit in Connecticut. ECF No. 47, PageID.1503.
discovery, Plaintiffs retained expert witness Mr. Brian J.
Tognetti. Plaintiffs and Mr. Tognetti posit that the mirror
was not properly installed, thus allowing it to fall onto the
exposed water line. ECF No. 47, PageID.1496. Mr. Tognetti
examined the evidence in Connecticut and inspected the
bathroom in Room 239, along with its lighting fixture.
Id. at PageID.1496. While in the room, Mr. Tognetti
purportedly “documented scrapes and gashes on the
mirror and the wallpaper in Room 239 that are consistent with
the mirror falling.” Id. Based on the physical
evidence and his own inspections, Mr. Tognetti opined that
Defendant's poor workmanship and violations of the
Michigan Rehabilitation Code for Existing Buildings
(“MRCEB”) caused the mirror to fall onto the
exposed water line. Id.
Defendant's Present Motion for Summary Judgment
now moves for summary judgment in this matter. First,
Defendant asserts that Plaintiffs' negligence claim is
based solely on speculation and conjecture and thus they
cannot prove causation. ECF No. 42, PageID.1136. Second,
Defendant argues that Plaintiffs cannot show that they are
entitled to indemnity. Id. at PageID.1140.
opposed Defendant's Motion on September 20, 2019, arguing
that the physical evidence, witness testimony, and their
expert's opinion establish that its lawsuit is not
speculative nor based on conjecture. ECF No. 47, PageID.1495.
Further, Plaintiffs purport that there are “multiple
issues of material fact that also prevent summary
judgment” for the negligence and indemnity.
Id. Defendant filed its Reply on October 3, 2019.
ECF No. 51.
Rule of Civil Procedure 56(a) empowers the court to render
summary judgment forthwith “if the pleadings,
depositions, answers to interrogatories and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of
law." See Redding v. St. Eward, 241 F.3d 530,
532 (6th Cir. 2001). The Supreme Court has affirmed the
court's use of summary judgment as an integral part of
the fair and efficient administration of justice. The
procedure is not a disfavored procedural shortcut.
Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986);
see also Cox v. Kentucky Dept. of Transp., 53 F.3d
146, 149 (6th Cir. 1995).
standard for determining whether summary judgment is
appropriate is "'whether the evidence presents a
sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a
matter of law.'" Amway Distributors Benefits
Ass'n v. Northfield Ins. Co.,323 F.3d 386, 390 (6th
Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251-52 (1986)). The evidence and all reasonable
inferences must be construed in the light most favorable to
the non-moving party. Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
Redding, 241 F.3d at 532 (6th Cir. 2001).
"[T]he mere existence of some alleged factual
dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the
requirement is that there be no genuine ...