McCrary Const. v. Metal Deck Specialists

• Decision Date: 14 November 2005
• Docket Number: No. A105392.,A105392.
• Citation: 133 Cal.App.4th 1528,35 Cal.Rptr.3d 624
• Court: California Court of Appeals Court of Appeals
• Parties: McCRARY CONSTRUCTION COMPANY, Cross-complainant and Respondent, v. METAL DECK SPECIALISTS, INC., Cross-defendant and Appellant. McCrary Construction Company, Cross-complainant and Appellant, v. Horizon Sheet Metal, Inc., Cross-defendant and Respondent.

35 Cal.Rptr.3d 624

133 Cal.App.4th 1528

McCRARY CONSTRUCTION COMPANY, Cross-complainant and Respondent, v. METAL DECK SPECIALISTS, INC., Cross-defendant and Appellant.

McCrary Construction Company, Cross-complainant and Appellant, v. Horizon Sheet Metal, Inc., Cross-defendant and Respondent.

No. A105392.

Court of Appeal, First District, Division Two.

November 14, 2005.

Robert F. Curotto, Oakland, Curotto Law Offices, for Cross-complainant, Respondent

and Appellant, McCrary Construction Company.

James C. Nielsen, Jennifer S. Cohn, San Francisco, Nielsen, Haley & Abbott. LLP, for Cross-defendant and Appellant, Metal Deck Specialists, Inc.

William S. Ginsburg, Law Offices, William J. Diffenderfer, for Cross-defendant and Respondent, Horizon Sheet Metal, Inc.

KLINE, P.J.

I. Introduction

Metal Deck Specialists, Inc. (Metal Deck) appeals from a judgment requiring it to indemnify McCrary Construction Company (McCrary) for a judgment paid by McCrary after a jury trial in a wrongful death action arising from a construction site accident. Metal Deck contends the trial court erred in ordering full indemnity rather than indemnity based on the proportion of fault the jury attributed to Metal Deck. McCrary cross-appeals against Horizon Sheet Metal, Inc. (Horizon), which the trial court found did not owe McCrary indemnity. We reverse the judgment against Metal Deck, and affirm as to Horizon.

II. Statement of the Case and Facts

Frederick Kimbark died after falling through a hole in a metal roof at a construction site where he was working as a carpenter. McCrary was the general contractor on the project; Metal Deck was a subcontractor, responsible for furnishing and installing the metal deck system on the roof; Horizon was another subcontractor, responsible for installing heating, ventilation and air conditioning units and performing miscellaneous sheet metal work. Metal Deck's employees cut the hole through which Kimbark subsequently fell, but left the work site without covering it. A Horizon employee, Plummer, covered the hole in question at the request of McCrary's superintendent, Mark Nelson, but did not secure the covering. Kimbark fell through the hole when he lifted the plywood covering it and stepped forward, not realizing the plywood had been covering a hole. Among many disputed issues at trial were whether Metal Deck had a duty to cover the holes it cut or properly left that task to McCrary, and whether McCrary agreed to assume responsibility for covering the holes or was forced to do so by Metal Deck's refusal.

At the wrongful death trial, the jury concluded that Metal Deck, McCrary, Horizon and Kimbark himself were all negligent with respect to the accident. The jury apportioned fault 45 percent to McCrary, 30 percent to Metal Deck, and 25 percent to Kimbark. It found that Horizon's negligence did not cause Kimbark injury. McCrary satisfied its portion of the judgment with a payment of $535,194, which it described as representing its stated percentage of responsibility under the jury's verdict plus costs and interest. Metal Deck appealed the judgment.

In Kimbark v. [Metal Deck] McCrary, A097402, 2003 WL 22725741, filed November 20, 2003, this court affirmed the $1,171,800 judgment, rejecting Metal Deck's arguments that it owed no duty to Kimbark or properly discharged its duty. We noted that although Metal Deck's subcontract with McCrary did not expressly require it to cover the holes it cut in the roof, the contract did expressly require Metal Deck to comply with applicable safety laws, rules and regulations, one of which specifically required secured and marked covers for floor, roof and skylight openings. We also held that Metal Deck had a duty to cover the holes under Rowland v. Christian (1968) 69 Cal.2d 108, 112, 70 Cal.Rptr. 97, 443 P.2d 561, and that substantial evidence supported the jury's conclusion that Metal Deck did not properly discharge its duty. Metal Deck represents in this court that it has since satisfied the remainder of the wrongful death judgment, paying its 30 percent share plus interest.¹

While Metal Deck's appeal in the wrongful death action was pending, the trial court heard McCrary's previously bifurcated cross-complaint for breach of contract and indemnity. McCrary's first amended cross-complaint sought full indemnity under causes of action for breach of contract and express contractual indemnity, and comparative equitable indemnity under a cause of action for implied and equitable indemnity. Metal Deck's answer raised affirmative defenses, asserting that it was not liable for any indemnity as well as that, under the doctrine of comparative indemnity, McCrary should be barred from recovery of damages directly attributable to its proportionate share of fault. Horizon raised affirmative defenses, asserting the cross-complaint was barred for reasons including McCrary's comparative fault and denying its own liability for any damages.

The indemnity provision in Metal Deck's and Horizon's subcontracts with McCrary provided: "Subcontractor agrees to defend and indemnify Contractor against, and save him harmless from, any and all claims, suits or liability for injuries to property, injuries to persons, including death, and from any other claims, suits or liability on account of, or related to, any act or omission, or alleged act or omission of the Subcontractor, or any of his officers, agents, employees or servants. Subcontractor shall be liable to Contractor for all expenses, including court costs and attorney's fee incurred by Contractor in connection with any such claims, suits or liability, and/or in connection with any claim by Contractor against Subcontractor arising out of the provisions of this article."

Metal Deck's trial brief argued that McCrary was not entitled to indemnity under theories of express or implied indemnity because McCrary was actively negligent with respect to the accident, Metal Deck was not negligent, and McCrary failed to perform its obligations under its contract with Metal Deck. Horizon's brief denied liability for indemnity on the basis that the jury had determined its conduct did not cause the underlying injury. McCrary's trial brief argued as to Metal Deck that language of the contract required full indemnity regardless of McCrary's own negligence and that Metal Deck was negligent. As to Horizon, McCrary argued that the language of the indemnity clause was broad enough to impose liability based on Horizon's negligence despite the jury's finding that Horizon's conduct was not a "`substantial factor' in causing the fatal accident."

The matter was tried to the court on February 18, 2003, and the court's statement of decision was filed on March 14, 2003. The court concurred with the jury's allocation of fault as to Kimbark (25 percent), McCrary (45 percent) and Metal Deck (30 percent), as well as its finding that Horizon was negligent, but disagreed that Horizon's negligence was not a proximate cause of the accident. The court found that after Metal Deck refused to cover the holes it had cut on the deck, "Nelson obtained a commitment from Horizon to cover the holes." The court stated: "The record is quite clear that Horizon agreed to cover the holes in question and obviously failed to either secure or appropriately label same according to [Occupational Safety and Health Act (OSHA)] standards and general negligence standards. The record clearly establishes that the defendant raised an unsecured piece of plywood obviously unaware that there was a hole beneath as he stepped forward to his death. This Court concludes that Horizon's negligence clearly was a substantial factor in causing plaintiff's fatal injury." The court also found Metal Deck was negligent and its negligence was a substantial factor in causing Kimbark's death. It cited evidence that Metal Deck refused to cover the holes, forcing Nelson to find a third party on short notice to do so.

The court rejected the argument that because the indemnity clause in the subcontracts did not state what effect McCrary's negligence would have on Metal Deck's and Horizon's indemnity obligations, McCrary would not be entitled to indemnity if it was deemed actively negligent. With respect to Metal Deck, the court first found that the parties negotiated Metal Deck's obligation to cover the holes it cut, then found McCrary's conduct should not preclude indemnity because, quoting Morton Thiokol, Inc. v. Metal Building Alteration Co. (1987) 193 Cal.App.3d 1025, 1029, 238 Cal.Rptr. 722 (Morton Thiokol), "`indemnity should be afforded under any circumstances where to do so furthers the manifest intent of the parties to the contract and where the loss sustained would not have occurred without the indemnitor's negligence.'"

The court reached a contrary result regarding Horizon's obligation to provide indemnity. Citing the rule of Continental Heller Corp. v. Amtech Mechanical Services, Inc. (1997) 53 Cal.App.4th 500, 61 Cal.Rptr.2d 668, that indemnity is required where the indemnitor was "in some way connected to a specific act or omission," the court found Horizon was connected to a "far greater degree" than the indemnitor in Continental Heller. The court found, however, that Horizon was not responsible for covering the holes because its subcontract contained no provisions regarding covering of the holes, there was no evidence of relevant discussions pertaining to the indemnification clause and, but for Plummer's "volunteering" to cover the holes, the jury could not have found Horizon negligent. Accordingly, the court believed the indemnity question turned on whether McCrary's negligence was active or passive. The court found McCrary's negligence was active because, as general contractor, it was responsible for supervision of the construction, it was aware of the hazard presented by the uncovered holes and "took control," albeit with "little choice," by directing Horizon's employee to cover the holes, it had...