Opinion
Docket No. 10551.
Decided November 26, 1971.
Appeal from Wayne, George T. Martin, J. Submitted Division 1 October 7, 1971, at Detroit. (Docket No. 10551.) Decided November 26, 1971.
Complaint by Dale Elby, for himself and as representative of all persons having an interest in Livernois Engineering Company Profit Sharing Trust, against Livernois Engineering Company for a determination of eligibility under the trust. Summary judgment for plaintiff. Defendant appeals.
Affirmed.
Rothe, Marston, Mazey, Sachs, O'Connell, Nunn Freid, P.C., for plaintiff.
Oglesby Oglesby ( MacLean Proppe, of counsel), for defendant.
This is an appeal from a summary judgment for plaintiff; the case was tried on an agreed statement of facts. It involves the status of 16 of defendant's former employees under a profit-sharing trust agreement. The employees involved were employed by defendant for a portion of 1968; the question is whether or not they are entitled to benefits under the trust agreement for the year 1968. The trial court ruled that they were so entitled; defendant appeals.
The trial court ruled that the agreement did not require plaintiff to seek a determination of his status from the "advisory board" established by the agreement and therefore defendant's argument that plaintiff failed to exhaust his administrative remedies was without merit. We agree that that argument is without merit, but for a different reason. The trust agreement did provide that the advisory committee would determine "all doubtful cases of eligibility to participate in this Plan and Trust". However, defendant had refused participation under the trust to plaintiff for the year in question. The advisory board was defendant's creature and seeking a determination from that board would have been futile. Plaintiff was therefore not required to seek such a ruling before commencing legal proceedings. Welfare Employees Union v. Civil Service Commission (1970), 28 Mich. App. 343.
The Trust Agreement, Article VI, paragraph 1 provides:
"The Board of Directors of Livernois Engineering Co. shall appoint a committee of not less than three to be known as the `Advisory Committee' (hereinafter sometimes referred to as the `Committee') who shall serve at the pleasure of the board of said company. Vacancies in the Committee arising by resignation, death, removal or otherwise, shall be filled by the board."
The remaining arguments in this case revolve around the trial court's reading of the contract and interpretation thereof. We agree with his rulings, and affirm them, but add an additional basis. The best that can be said of defendant's arguments is that they make out a case for the ambiguity of the contract. In such circumstances the ambiguity will be construed against the drafter.
Affirmed.