C. I. Engineers & Constructors, Inc. v. Johnson & Turner Painting Co.

• Decision Date: 17 March 1983
• Citation: 189 Cal.Rptr. 824,140 Cal.App.3d 1011
• Court: California Court of Appeals Court of Appeals
• Parties: C.I. ENGINEERS & CONSTRUCTORS, INC., Defendant, Cross-complainant and Respondent, v. JOHNSON & TURNER PAINTING COMPANY, INC., Cross-defendant and Appellant. Civ. 62842.

Page 824

189 Cal.Rptr. 824

140 Cal.App.3d 1011

C.I. ENGINEERS & CONSTRUCTORS, INC., Defendant, Cross-complainant and Respondent, v. JOHNSON & TURNER PAINTING COMPANY, INC., Cross-defendant and Appellant.

Civ. 62842.

Court of Appeal, Second District, Division 5, California.

March 17, 1983.

As Modified April 14, 1983.

Haight, Dickson, Brown & Bonesteel, George C. McCarthy, Roy G. Weatherup and Christopher M. Gilman, Los Angeles, for defendant, cross-defendant and appellant.

Coyle, Marrone & Robinson and J. Alan Frederick, Los Angeles, for defendant, cross-complainant and respondent.

EAGLESON, Associate Justice. ^*

C.I. Engineers and Constructors, Inc., defendant, cross-complainant and respondent (hereinafter referred to as cross-complainant or contractor), sought contract indemnity against Johnson and Turner Painting Company Inc., cross-defendant and appellant (hereinafter referred to as cross-defendant or subcontractor). The trial court granted cross-complainant's motion for a summary judgment on the issue of liability under an indemnity clause found in a written construction contract entered into between cross-complainant and cross-defendant. Following a court trial on the issue of damages a money judgment was entered in favor of cross-complainant against cross-defendant, and this appeal follows. (The damages were those paid by cross-complainant to Davis for personal injury.)

The issue is whether in light of admitted facts the court correctly interpreted the written indemnity clause as one raising an issue of law only or whether the clause, and the right to indemnity thereunder, could be interpreted only after a determination of triable issues of fact, thus precluding summary judgment. We affirm.

FACTS

Davis, the injured party and trial court plaintiff, was a foreman for cross-defendant who was acting as a painting subcontractor on a construction job. Cross-complainant was the general contractor.

In support of a motion for summary judgment and claim for indemnity, cross-complainant submitted declarations, deposition excerpts, answers to interrogatories, requests for admissions which because they remained unanswered were deemed admitted, and a second set of requests for admissions and answers thereto. Collectively, they clearly established that Davis was negligent in respect of the incident in which he It was also conceded below that cross-complainant was negligent, but no determination was made whether its negligence was active or passive. We have then a case of co-negligence of both the indemnitor (subcontractor) and indemnitee (contractor).

was injured, that his negligence[140 Cal.App.3d 1014] was a proximate cause of his injury, and that at the time of the incident he was an employee of cross-defendant and acting in the course and scope of his employment.

The written contract provision which is the basis of the claim reads:

" 'B. INDEMNITY. All work covered by this Agreement done at the site of construction or in preparing or delivering materials to the site shall be at the risk of SUBCONTRACTOR alone. SUBCONTRACTOR agrees to save, indemnify and keep harmless CONTRACTOR against any and all liability, claims, judgments, or demands, including the obligations of CONTRACTOR on account of any similar agreement CONTRACTOR has with OWNER, including demands arising from injuries or death of persons (SUBCONTRACTOR'S employees included) and damage to property, arising directly or indirectly out of the obligations herein undertaken or out of the operations conducted by SUBCONTRACTOR, save and except claims or litigation arising through the sole negligence or sole willful misconduct of CONTRACTOR, and will make good to and reimburse CONTRACTOR for any expenditures, including reasonable attorneys' fees, CONTRACTOR may make by reason of such matters and, if requested by CONTRACTOR, will defend any such suits at the sole cost and expense of SUBCONTRACTOR.' "

DISCUSSION

The trial court found that this clause was a "Type I" provision which allows indemnity for damages arising out of any type of negligence, including active negligence of the indemnitee. If the clause is of this type, a qualitative determination that the negligence was active or passive is irrelevant.

Cross-defendant contends that the indemnity agreement was of a "Type II" or "general indemnity" variety precluding summary judgment because ultimate liability can be allocated only if the indemnitee cross-complainant (contractor) is factually found to be passively and not actively negligent, and since no such finding was made, summary judgment is improper.

The rubrics "Type I" and "Type II" stem from a classification model articulated by this court in MacDonald & Kruse, Inc. v. San Jose Steel Co., Inc. (1972) 29 Cal.App.3d 413, 105 Cal.Rptr. 725. But since the legal principles governing written express indemnity reflect its contractual nature the inquiry should be focused on what the parties intended in the circumstances of their own agreement.

"Past cases have held that an indemnity agreement may provide for indemnification against an indemnitee's own negligence, but such an agreement must be clear and explicit and is strictly construed against the indemnitee. (Citation.) If an indemnity clause does not address itself to the issue of an indemnitee's negligence, it is referred to as a "general" indemnity clause. (Citations.) While such clauses may be construed to provide indemnity for a loss resulting in part from an indemnitee's passive negligence, they will not be interpreted to provide indemnity if an indemnitee has been actively negligent. (Citation.) Provisions purporting to hold an owner harmless "in any suit at law" (citation), "from all claims for damages to persons" (citation), and "from any cause whatsoever" (citation), without expressly mentioning an indemnitee's negligence, have been deemed to be "general clauses." (Guy F. Atkinson Co. v. Schatz (1980) 102 Cal.App.3d 351, 356-357, 161 Cal.Rptr. 436.)

The indemnity clause here does address itself to the issue of indemnitee's negligence and is not therefore a "general" indemnity clause. Cross-complainant contractor sought indemnity against any and all liability, claims, judgments or demands, which was further refined to include "demands arising from injuries or death of persons (SUBCONTRACTOR'S employees included) ... arising directly or indirectly out of the obligations herein undertaken or out of the operations conducted by SUBCONTRACTOR," (obviously the job site activities of Davis, subcontractor's agent, acting in the course and scope of his employment at the time of his injury), "save and except claims or litigation arising through the sole negligence or sole willful misconduct of CONTRACTOR ...." (Emphasis added.) If we assume that the all encompassing phrase "any and all" is unclear or not explicit it becomes unambiguous when highlighted against the contractual limitation later alluded to in the indemnity clause, that is, that the contractor was not to be indemnified for claims or litigation arising through its sole negligence or sole willful misconduct.

It is true that Civil Code section 2782 renders void as against public policy any provision in a construction contract which seeks to provide indemnity against the "sole negligence or willful misconduct of the promisee," but it does not follow, as suggested by appellant, that the inclusion of that phrase in the indemnity clause is simply an effort to comply with the statute.

"[T]he laws which subsist at the time and place of the making of a contract ... enter into and form a part of it, as if they were expressly referred to or incorporated in its terms." (United States Trust Co. v. New Jersey (1976) 431 U.S. 1, 19-20, 97 S.Ct. 1505, 1516-1517, 52 L.Ed.2d 92; Home Bldg. & L. Ass'n. v. Blaisdell (1934) 290 U.S. 398, 429-430, 54 S.Ct. 231, 236-237, 78 L.Ed. 413.) In order to be afforded any meaning at all, the inclusion of this phrase in the indemnity clause must necessarily quantify the scope of cross-defendant subcontractor's responsibility, that is, to indemnify against any and all liability arising out of job related activity except that occasioned by the sole negligence or sole willful misconduct of cross-complainant.

Put differently, is there...