VOID CONSTRUCTION CONTRACTS
Act 165 of 1966
691.991 Building construction or design; certain provisions for indemnification void; contractor defined; "public entity" defined; application of MCL 691.1401 to 691.1419.
Sec. 1.
(1) In a contract for the design, construction, alteration, repair, or maintenance of a building, a structure, an appurtenance, an appliance, a highway, road, bridge, water line, sewer line, or other infrastructure, or any other improvement to real property, including moving, demolition, and excavating connected therewith, a provision purporting to indemnify the promisee against liability for damages arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of the promisee or indemnitee, his agents or employees, is against public policy and is void and unenforceable.
(2) When entering into a contract with a Michigan-licensed architect, professional engineer, landscape architect, or professional surveyor for the design of a building, a structure, an appurtenance, an appliance, a highway, road, bridge, water line, sewer line, or other infrastructure, or any other improvement to real property, or a contract with a contractor for the construction, alteration, repair, or maintenance of any such improvement, including moving, demolition, and excavating connected therewith, a public entity shall not require the Michigan-licensed architect, professional engineer, landscape architect, or professional surveyor or the contractor to defend the public entity or any other party from claims, or to assume any liability or indemnify the public entity or any other party for any amount greater than the degree of fault of the Michigan-licensed architect, professional engineer, landscape architect, or professional surveyor, or the contractor and that of his or her respective subconsultants or subcontractors. A contract provision executed in violation of this section is against public policy and is void and unenforceable.
(3) For the purposes of this section, a contractor may be an individual, sole proprietorship, partnership, corporation, limited liability company, joint venture, construction manager, or other business arrangement.
(4) As used in this section, "public entity" means this state and all agencies thereof, any public body corporate within this state and all agencies thereof, and any nonincorporated public body within this state of whatever nature and all agencies thereof; including, but not limited to, cities, villages, townships, counties, school districts, intermediate school districts, authorities, and community and junior colleges as provided for in section 7 of article VIII of the state constitution of 1963, and their employees and agents, including, but not limited to, construction managers or other business arrangements retained by or contracting with the public entity to manage or administer the contract for the public entity. However, public entity does not include institutions of higher education as described or provided for in section 4 or 6 of article VIII of the state constitution of 1963, or their employees or agents.
(5) Nothing in this act affects the application of 1964 PA 170, MCL 691.1401 to 691.1419.
History: 1966, Act 165, Eff. Mar. 10, 1967 ;-- Am. 2012, Act 468, Eff. Mar. 1, 2013
Notes of Decisions
Est. of Koch v. A. Z. Shmina, Inc. (In Re Est. of Koch), 912 N.W.2d 205 (Mich. Ct. App. 2017).
· cites it 31× “At an April 22, 2015 motion hearing, the trial court asked counsel if they were familiar with MCL 691.991, also known as the indemnity-invalidating act (the act), which no party had cited.”
Fischbach-Natkin Co. v. Power Process Piping, Inc., 403 N.W.2d 569 (Mich. Ct. App. 1987).
· cites it 7× “The Court first noted that the indemnification provision expressly provided that the indemnitee would not be protected if the injury or damage was caused by its sole negligence in order to avoid a violation of MCL 691.991; MSA 26.1146(1). The Paquin Court concluded that this…”
Peeples v. City of Detroit, 297 N.W.2d 839 (Mich. Ct. App. 1980).
· cites it 4× “A covenant, promise, agreement or understanding in, or in connection with or collateral to, a contract or agreement relative to the construction, alteration, repair or maintenance of a building, structure, appurtenance and appliance, including moving, demolition and excavating…”
Allen v. Michigan Bell Tel. Co., 171 N.W.2d 689 (Mich. Ct. App. 1969).
· cites it 4× “" This indicates that he was aware of the unequal bargaining power argument but does not disclose what considerations or facts moved him to reject it out-of-hand We must conclude, therefore, that the factor of unequal bargaining power between the parties to the contract has…”
Chrysler Corp. v. Skyline Indus. Servs., Inc., 528 N.W.2d 698 (Mich. 1995).
· cites it 2× “[MCL 691.991; MSA 26.1146(1).] 3 See n 2. 4 The relevant portions are: Seller shall protect, defend, hold harmless, and indemnify Purchaser from and against any and all loss, cost, damage, expense, claims, or legal actions, whether groundless or not, arising out of the bodily…”
Redfern v. R E Dailey & Co., 379 N.W.2d 451 (Mich. Ct. App. 1985).
· cites it 5× “The motion was denied, as was Midwest’s motion for summary judgment claiming that the indemnification agreement was void pursuant to MCL 691.991; MSA 26.1146(1). Trial came on before the court, and a judgment of no cause of action was entered in favor of Midwest.”
Bosak v. Hutchinson, 375 N.W.2d 333 (Mich. 1985).
· cites it 2× “MCL 691.991; MSA 26.1146(1); Ford v Clark Equipment Co, 87 Mich App 270 ; 274 NW2d 33 (1978).”
Sentry Ins. Co. v. Nat'l Steel Corp., 382 N.W.2d 753 (Mich. Ct. App. 1985).
· cites it 7× “Although defendant *219 raised a number of affirmative defenses to Sentry's complaint, including that it was not solely negligent, both sides agreed for purposes of the summary judgment motions that, assuming defendant was soley negligent, the only issue before the court was…”
Sherman v. DeMaria Bldg. Co., 513 N.W.2d 187 (Mich. Ct. App. 1994).
· cites it 3× “Next, Glaseo argues that DeMaria is improperly seeking indemnification for damages caused by its sole negligence in violation of MCL 691.991; MSA 26.1146(1), which provides: A covenant, promise, agreement or understanding in, or in connection with or collateral to, a contract or…”
Ford v. Clark Equip. Co., 274 N.W.2d 33 (Mich. Ct. App. 1978).
· cites it 2× “The important questions in these consolidated cases relate to the effect of MCL 691.991; MSA 26.1146(1) on the indemnity contract between third-party plaintiff, Clark Equipment Company (Clark) and third-party defendant, B.”
— Mich. Comp. Laws § 691.991(1) — 3 cases
Est. of Koch v. A. Z. Shmina, Inc. (In Re Est. of Koch), 912 N.W.2d 205 (Mich. Ct. App. 2017).
“At an April 22, 2015 motion hearing, the trial court asked counsel if they were familiar with MCL 691.991, also known as the indemnity-invalidating act (the act), which no party had cited.”
— Mich. Comp. Laws § 691.991(2) — 2 cases
Est. of Koch v. A. Z. Shmina, Inc. (In Re Est. of Koch), 912 N.W.2d 205 (Mich. Ct. App. 2017).
“At an April 22, 2015 motion hearing, the trial court asked counsel if they were familiar with MCL 691.991, also known as the indemnity-invalidating act (the act), which no party had cited.”
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