PROASSURANCE CORPORATION v. Nefcy

739 N.W.2d 870 (2007) PROASSURANCE CORPORATION, a/k/a Pronational Insurance Corporation, f/k/a Picom, as Subrogee and Assignee of Universal Imaging, Inc., Plaintiff-Appellant, v. Dr. Peter NEFCY, M.D., Defendant-Appellee. Docket No. 134568. COA No. 272963. Supreme Court of Michigan. October 24, 2007. On order of the Court, the application for leave to appeal the April 26, 2007 judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals that the plaintiff failed to prove it was free from active negligence and that, for this reason, it may not seek indemnification from the defendant. Courts primarily look to the plaintiff's complaint in the underlying lawsuit to determine whether a prospective indemnitee was actively negligent. Hill v. Sullivan Equipment Co., 86 Mich. App. 693, 696-697, 273 N.W.2d 527 (1978). The Court of Appeals erred in concluding that the underlying complaint alleged both active and passive negligence against the defendant. At all stages of the underlying litigation, the plaintiff alleged that the defendant was vicariously liable for the acts *871 of its agent, not its own active negligence. We REMAND this case to the Court of Appeals to consider the trial court's other grounds for denying summary disposition to the plaintiff and granting summary disposition to the defendant. We do not retain jurisdiction.