Free Mandate of 9th Circuit - District Court of Arizona - Arizona

UNITED STATES COURT OF APPEALS L E D
FOR THE NINTH CIRCUIT APR 24 2008
MOLLYC.DWYER.CLERK OF COURT
U.S. COURT OF APPEALS
GENERAL MOTORS CORPORATION; N0. 06-15422
ASSSOCIATED AVIATION, D.C. No. CV-02-02132-PGR
Plaintiffs - Appellees 1
v. MANDATE
MARITZ INC, a Missouri corporation;
MARITZ TRAVEL COMPANY,
Defendants - Appellants
The judgment ofthis Court, entered 2/14/08, takes effect this date.
This constitutes the formal mandate of this Court issued pursuant to Rule
4l(a) ofthe Federal Rules of Appellate Procedure.
FOR THE COURT:
Molly C. Dwyer
Clerk of Court
y By: Synitha Fuller
Deputy Clerk
Case 2:O2—cv—O2132—PGR Document 99 Filed 05/O1/2008 Page1 of4

Nor Fon PUBLICATION FEB 14 2000
I CATHY A. CAWERSON. CLERK
UNITED STATES COURT OF APPEALS 0-0- 000**** 0F APPEALS
FOR THE NINTH CIRCUIT
GENERAL MOTORS CORPORATION; No. 06-15422
et al.,
D.C. No. CV—02—O2l32—PGR
Plaintiffs - Appellees,
v. MEMORANDUM *
MARITZ, INC., a Missouri corporation;
et al.,
Defendants - Appellants.
Appeal from the United States District Court ·
for the District of Arizona
Paul G. Rosenblatt, District Judge, Presiding
Argued and Submitted January 16, 2008
San Francisco, California
Before: HUG, SCHROEDER, and CLIFTON, Circuit Judges.
Maritz, Inc. appeals the summary judgment entered by the district court in
favor of General Motors. We reverse.
i This disposition is not appropriate for publication and is not precedent
- except as provided by 9m Cir. R. 36-3.
Case 2:O2—cv—O2132—PGR Document 99 Filed 05/O1/2008 Page 2 of 4

Under Michigan law, which the parties agree applies, we must interpret the
indemnity provision "according to the plain and ordinary meaning of the words."
DaimlerChrysler Corp. v. G-Tech Prof Smfing Inc., 678 N.W.2d 647, 649 (Mich.
Ct. App. 2004).
We agree with Maritz that the injuries suffered as a result of the hot air
balloon accident did not "aris[e] from or in connection with" the use by Maritz of
GM’s intellectual property. The connection between the injuries and Maritz’s use
of GM’s property was simply too attenuated. To trigger the indemnification
obligation, there must be some logical connection or association between the
injuries and the use of GM property, see DaimlerChrysler Corp., 678 N.W.2d at
650, something more than mere coexistence, and there was no such connection
here. GM does not contend that the hot air balloon accident itself arose from the
use by Maritz of GM’s property. Nor can the presence of the victims be attributed
to that use. They were there because they won the sales contest. GM may have
wanted to promote its brand name and trademarks, but it has not alleged nor would
it be logical to conclude that the victims were drawn to the event or boarded the
balloon because of Maritz’s use of GM’s intellectual property.
Under GM’s interpretation ofthe contract, Maritz would effectively be
required to indemnify GM against any claim or liability that occurred during the
2
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course of the event weekend not caused by GM’s sole negligence, something that
could have been stated directly in the contract but was not. We therefore conclude
that Maritz is not required, under the terms of the purchase order agreement, to
indemnify GM for the damages from the hot air balloon accident.
REVERSED.
A TRUE COPY
CATHY A. CATTERSON
Clerk of Court
ATTEST
3 APR 2 '• 2008
( I rf,
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