Altman Management Company v. Aon Risk Insurance Services West Inc ( 2016 )


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  •                           STATE OF MICHIGAN
    
                               COURT OF APPEALS
    
    
    
    ALTMAN MANAGEMENT COMPANY,                                         UNPUBLISHED
                                                                       September 20, 2016
                  Plaintiff-Appellant,
    
    v                                                                  No. 328593
                                                                       Ingham Circuit Court
    AON RISK INSURANCE SERVICES WEST,                                  LC No. 13-001106-CK
    INC.,
    
                  Defendant-Appellee.
    
    
    Before: JANSEN, P.J., and K. F. KELLY and O’BRIEN, JJ.
    
    PER CURIAM.
    
           Plaintiff-appellant, Altman Management Company (Altman), appeals 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 number of properties in several states. 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 properly handle a claim (the Otero
    lawsuit), which resulted in a default judgment against Altman.
    
            Timothy Peterson, Altman’s CFO, testified that AON was selected 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 manage Altman’s complex
    insurance needs and provide a “one-stop-shop” and one primary advocate – AON account
    executive Mike Rosenbach. Derek Lubsen was head of asset management at Altman and
    reported directly to Peterson. Like Peterson, Lubsen considered 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 receiving and submitting claims to
    Altman’s insurers. Instead, Rosenbach had designated claim consultant Diane Gerometta and
    later Wayne Brinkman to handle Altman’s needs.
    
           Altman had no written procedure in place when it came to receiving 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 assistant Marisa Crescenzi.
    Crescenzi would then put together a file and submit the matter for insurance review. All incident
    
                                                   -1-
    reports were submitted, regardless of whether a claim was forthcoming. 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 progress of lawsuits at Mann’s
    behest. For a few years Crescenzi forwarded incident reports directly to Westrope, an insurance
    wholesaler. However, after one incident report lacked the proper documentation, Westrope
    insisted that, going forward, Altman first submit the reports to AON, who would then forward
    the claim to Westrope.
    
            In January 2010 Carmen Otero was found unresponsive at an Altman property in Detroit.
    In June 2011, her estate sued Altman, claiming that Otero had suffered carbon monoxide
    poisoning. When the resident agent for Altman received the lawsuit, she forwarded it to
    Peterson. Peterson then forwarded it to Lubsen and Mann and asked that the insurer be notified.
    Lubsen immediately forwarded the matter to Rosenbach at AON with 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 and took no action on Altman’s behalf. 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 forwarded the matter to
    Brinkman, indicating, “This one fell 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 and 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 negligence. Altman
    maintained that AON’s failure to properly submit the Otero matter 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 report claims for or on behalf of
    Altman. This agreement, which covered the period in which the Otero claim was made,
    specifically disclaimed any responsibility for reporting Altman’s claims to Altman’s insurance
    carriers. Nevertheless, Altman contended that the parties modified this agreement through their
    course of conduct. Specifically, Altman alleged that AON had always 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 modified this agreement by their conduct 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 claims through Aon.” However,
    while the trial court found that the Compensation Agreement had been modified to provide that
    AON would notify Altman’s insurance carriers, the trial court further 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 particular procedure was in
    place, the trial court then had to turn its attention to another provision in the Compensation
    Agreement, which limited AON’s liability:
    
                   To the fullest extent permitted by law, [AON] shall have no liability for
           any claim or liability asserted by [Altman] for any loss arising by reason of, or
           arising out of any error or omission by [Altman] including any failure to comply
    
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           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 indemnify [AON]
           for all damages or losses arising from such error or omission.
    
    At trial, Altman argued that it committed no errors. It maintained that the Otero matter was
    properly submitted to the “point man” at AON – Mike Rosenbach and 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 omissions in its handling of the
    Otero lawsuit. The trial court rejected Altman’s claim that the errors and omissions clause did
    not require Altman to indemnify AON against AON’S own negligence. The trial court granted
    AON’s motion for involuntary dismissal. Altman now appeals as of right.
    
                                             II. ANALYSIS
    
            The trial court granted AON’s motion for involuntary dismissal pursuant to MCR
    2.504(B)(2). “Unlike the motion for directed verdict, . . . a motion for involuntary dismissal
    calls upon the trial judge to exercise his function as trier of fact, weigh the evidence, pass upon
    the credibility of witnesses and select between conflicting inferences.” 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 facing a motion for involuntary dismissal “is not given the advantage
    of the most favorable interpretation of the evidence.” Id.
    
            “This Court reviews a decision to grant or deny a motion for involuntary 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 are 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 quotation
    marks omitted).
    
            Plaintiff’s arguments on appeal also call into question the trial court’s interpretation of
    the parties’ Compensation Agreement. Contract interpretation presents 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 trial court erred when it concluded that Altman made multiple
    errors and omissions in its handling of the Otero matter. We disagree.
    
           The trial court found:
    
                  The Court finds that Altman made multiple errors and omissions in the
           handling of the Otero lawsuit from 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 lawsuit, Lubsen never followed through when
           Rosenbach did not respond. The errors and omissions are not Lubsen’s alone.
           Mann was cc’d on the e-mail to Rosenbach. 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 further status of the lawsuit.
    
                                                    -3-
                   The efforts to answer the interrogatories appear to have been dropped after
           the June 23 e-mails. Had anyone followed through with having the 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 Compensation Agreement
    when Lubsen forwarded the lawsuit to AON account executive Mike Rosenbach and that the trial
    court erred when it concluded that Altman had any obligation beyond 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 divine the parties’ reasonable expectations
           and then rewrite the contract accordingly, is contrary to the bedrock 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 highly unusual
           circumstance, such as a contract in violation of law or public policy. This Court
           has recently discussed, and reinforced, its fidelity to this understanding 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 that courts will enforce those agreements, is ancient
           and irrefutable. It draws strength from common-law roots and can be seen in our
           fundamental charter, the United States Constitution, where government is
           forbidden from impairing the contracts of citizens, art. I, § 10, 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 ineradicable part of the
           legal fabric of our society. Few have expressed the force of this venerable axiom
           better than the late Professor Arthur Corbin, of Yale Law School, who wrote on
           this topic in his definitive study of contract law, Corbin on Contracts, as follows:
    
                   One does not have “liberty of contract” unless organized society both
                   forbears and enforces, forbears to penalize him for making his bargain and
                   enforces it for him after it is made. [15 Corbin, Contracts (Interim 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 specifically 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 whose coverages may apply to any
    circumstances, occurrences, claims, suits, demands and losses in 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 that it had no obligation to submit
    claims on Altman’s behalf. Still, Altman successfully demonstrated that the parties, through
    their actions, had modified the Compensation Agreement. This is 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 into 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
    
                                                    -4-
    has been modified through affirmative conduct, there must be “clear and convincing evidence
    that a contracting party, relying on the terms of the prior contract, knowingly waived
    enforcement of those terms,” satisfying the principle of mutual asset. Id. at 373. It is possible
    “the parties’ past practice is so widely acknowledged and mutually 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 parties, through their affirmative conduct, modified the
    terms of the Compensation Agreement and that AON waived its right to enforce the provision
    disclaiming its obligation to report claims to Altman’s insurers. 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 complained 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 claims to Altman’s insurers. Even
    Rosenbach testified that AON’s obligations to Altman included facilitating contact between
    Altman and Altman’s’ insurers and that “the process was to report 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 had no obligation under the
    modified Compensation Agreement to do anything but get the Otero claim in the hands of an
    AON employee. Altman cites no provision in the Compensation Agreement to support this
    claim, likely because under the plain terms of the contract, there 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 claims to AON or how AON was to receive those claims.
    
           Lubsen, Mann and Crescenzi admitted that Altman had no written procedures 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 report, as happened here.
    Additionally, while Crescenzi kept a log of incidents and claims, both she and Mann testified
    that Crescenzi was generally uninvolved with lawsuits. Lubsen, Mann and Crescenzi
    acknowledged that Gerometta and Brinkman were their claims consultants and that most claims
    went through them. However, Rosenbach was also copied on the claims.
    
            The trial court did not clearly err in concluding that there was 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 and 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 Agreement 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 agreement to one established
    procedure.”
    
           Altman seems to read this to mean that, because there was no established procedure, its
    only obligation was to see to it that someone at AON received the Otero claim. There is no
    
                                                    -5-
    dispute that Lubsen forwarded the lawsuit to Rosenbach and Rosenbach 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 and omissions,” not to recreate any
    provision of the parties’ agreement, but in the context of the liability and indemnification
    provision of the parties’ Compensation Agreement:
    
           To the fullest extent permitted by law, [AON] shall have no liability for any claim
           or liability asserted by [Altman] for any loss arising by reason of, or arising out of
           any error or omission by [Altman] including any failure to comply 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 indemnify [AON]
           for all damages or losses arising from such error or omission.
    
    Therefore, the trial court was looking at a broader issue than simply whether Altman had, in fact,
    forwarded the Otero matter to AON; it had to consider whether Altman committed any errors or
    omissions that would trigger the 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 were 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 that Wayne Brinkman was
    the AON claims consultant. And, even though Lubsen specifically 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 incident 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 incident report, Crescenzi did not
    create a file and had nothing to submit. It was not until after Mann received notice of the lawsuit
    that Crescenzi created a file, but Crescenzi’s involvement with lawsuits was limited. She had no
    reason to submit the matter to Brinkman, thinking it was already being handled by Mann. Mann
    and French then attempted to answer interrogatories instead of ensuring that an attorney had been
    appointed and would handle such discovery going forward. In fact, 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 Altman fails to see that the trial
    court found more than just a mere failure to follow up – the trial court also considered Altman’s
    failure to have proper procedures in place and its failure to follow its own loosely-held informal
    procedure. Therefore, while Altman may have submitted the claim to AON and AON was
    admittedly negligent in failing to take action, Altman’s own errors and omissions remained
    relevant for purposes of the hold harm/indemnity provision of the parties’ Compensation
    Agreement.
    
          Altman next argues that the trial court erred by applying the limitation of liability and
    indemnity clauses in the Compensation Agreement to bar the lawsuit. We disagree.
    
    
                                                    -6-
           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 indemnity clause has no application because indemnity
    clauses only apply to claims by third parties and not between the parties, citing Ray D Baker
    Contractor, Inc v Chris 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 indemnification based on contract
    performance. “Michigan law provides contracting parties with broad 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, contract for indemnification
    liability beyond that arising from third-party claims when they use 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 between the parties, AON is not
    entitled to indemnification for all damages or losses and indemnification is limited to only
    damages or losses arising from “such” error by Altman. It argues 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 reviewing indemnity clauses:
    
                   As with any other contract, our primary task in construing a contract for
           indemnification is to give effect to the parties’ intention at the time they entered
           into the contract. We determine the parties’ intent by examining the language of
           the contract according to its plain and ordinary meaning. In doing so, we avoid an
           interpretation that would render any portion of the contract nugatory. We assess
           the threshold question whether a contract’s indemnity clause applies to a set of
           facts by a “straightforward analysis of the facts and the contract terms.”
    
                  Where parties have expressly contracted for indemnification, the 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 agreement provided:
    
                   You [Ahrens] as Subcontractor/Supplier agree to defend, hold harmless
           and indemnify Miller–Davis Company ... from and against all claims, damages,
           losses, demands, liens, payments, suits, actions, recoveries, judgments and
           expenses including attorney’s fees, interest, sanctions, and court costs which are
           made, brought, or recovered against Miller–Davis Company, by reasons of or
           resulting from, but not limited to, any injury, damage, loss, or occurrence arising
           out of or resulting from the performance or execution of this Purchase Order and
           caused, in whole or in part, by any act, omission, fault, negligence, or breach of
           the conditions of this Purchase Order by the Subcontractor/Supplier, its agents,
           employees, and subcontractors regardless of whether or not caused in whole or in
           part by any act, omission, fault, breach of contract, or negligence of Miller–Davis
    
                                                   -7-
           Company. The Subcontractor/Supplier shall not, however, be obligated to
           indemnify Miller–Davis Company for any damage or injuries caused 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 performed 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, finding 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,” they also trigger
           liability more broadly, when “damages, losses, demands,” or “expenses,” result
           from “any act, omission, fault, negligence, or breach....” Furthermore, 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 agreement 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 the 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 interpretation that Altman suggests.
    
           “Arise” is defined as “to result; spring or issue.” Random House Webster’s
           College Dictionary (1997).
    
                                                   ***
    
                  In interpreting an insurance contract containing the language “arising out
           of,” we held that such language requires a causal connection that is more than
           incidental. Similarly, in interpreting a workers’ compensation statute, MCL
           418.301, containing the language “arising 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” does not mean proximate cause in the
    strict legal sense” and that “almost any causal connection or relationship 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 origin 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 Issue I, its numerous errors and
    omissions played a part in the Otero default judgment. There was a causal connection between
    Altman’s errors and omissions and the default judgment that was more than incidental.
    
    
    
                                                   -8-
            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 parties 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 by reason of, or arising out of any
    error or omission by [Altman] including any failure to comply with Your duty of disclosure.”
    The second provision provides: “Should any claim or action be brought against [AON] due to an
    error or omission by [Altman], [Altman] shall indemnify [AON] for all damages or losses arising
    from such error or omission.” Thus, whereas indemnity as between the two parties was not
    specifically provided for in the indemnity agreement in Badiee, indemnity between the two
    parties was clearly contemplated and provided for in the case at 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 possible terms. Aon has
           no liability for any claim made against Aon by Altman for any loss arising out of
           any error or omission by Altman.
    
                  Beyond the broad nature of the language is the fact that it covers any claim
           by Altman against Aon. Unlike clauses that cover third party liability but are
           silent with respect to claims between indemnitor and indemnitee, this clause
           focuses only on claims made by Altman against Aon. This language conclusively
           shows that the parties contemplated some claim by Altman against Aon, such as
           breach of contract or negligence, and that Altman agreed to indemnify Aon even
           if Aon was negligent. Only in the face of Aon’s sole negligence would the
           indemnification clause not apply. Aon is not solely negligent.
    
                   Altman asks this Court to assist it in obtaining justice. Altman 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 egregious error and
           cause its own client such enormous consequences. However, Altman freely
           contracted with Aon to indemnify Aon for Altman’s own errors and omissions.
           When Altman did that, it took on the risk that it, too, would mishandle something
           as important as a multi-million dollar lawsuit. Despite the risk, Altman made no
           standard internal procedures for handling claims against it. What 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 agreement, Aon is not
           liable.
    
          The trial court did not err in concluding that the parties’ Compensation Agreement barred
    Altman’s claims.
    
            Finally, Altman claims that, even if it committed any errors or omissions, such
    comparative negligence was irrelevant to its breach of contract cause of action and also did not
    act as a complete bar to its negligence action. We disagree.
    
                                                   -9-
            “As a general proposition, parties are free to enter into any contract at their will, provided
    that the particular contract does not violate the law or contravene 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 negligence.” Cudnik v William
    Beaumont Hosp, 
    207 Mich. App. 378
    , 383–384; 525 NW2d 891 (1994). It is not contrary to the
    public policy of Michigan for a party to contract against liability 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 parties with broad discretion in
    negotiating the scope of indemnity clauses.” Miller-Davis, 495 Mich at 173. The parties clearly
    contemplated their rights, duties and obligations when they freely entered into the broadly-
    worded 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 address AON’s alternative grounds
    for affirmance.
    
    
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