Herman Christensen & Sons, Inc. v. Paris Plastering Co.

• Decision Date: 18 August 1976
• Citation: 132 Cal.Rptr. 86,61 Cal.App.3d 237
• Court: California Court of Appeals Court of Appeals
• Parties: HERMAN CHRISTENSEN & SONS, INC., Cross-Complainant, Respondent and Appellant, v. PARIS PLASTERING CO., Cross-Defendant, Appellant, and Respondent, Bay Area Scaffolding, Inc., a corporation, Cross-Defendant and Respondent. Civ. 36204.

Page 86

132 Cal.Rptr. 86

61 Cal.App.3d 237

HERMAN CHRISTENSEN & SONS, INC., Cross-Complainant, Respondent and Appellant, v. PARIS PLASTERING CO., Cross-Defendant, Appellant, and Respondent Bay Area Scaffolding, Inc., a corporation, Cross-Defendant and Respondent.

Civ. 36204.

Court of Appeal, First District, Division 1, California.

Aug. 18, 1976.

Hearing Denied Oct. 14, 1976.

Rankin, Sproat, Archer & Rankin, Joseph F. Rankin, Oakland, for appellant and cross-complainant; Richard G. Logan, Oakland, of counsel.

Bruce D. Starkey, San Francisco, for respondent and cross-defendant.

SIMS, Acting Presiding Justice.

Cross-defendant, a subcontractor, has appealed from a judgment awarding cross-complainant, a general contractor, indemnity after the latter had suffered a verdict and judgment in an action brought by the subcontractor's employee for injuries suffered in a fall from a scaffold furnished by the general contractor. ¹ The subcontractor contends that the indemnity clause in the contract between it and the general contractor fails to comply with the provisions of section 3864 of the Labor Code, and on its face does not relieve the general contractor from liability for its own negligence. It also asserts that the court erred in finding that the general contractor was only passively negligent, and that the subcontractor was actively negligent. Those contentions are examined and found wanting. The judgment must be affirmed.

A cross-appeal, in which the general contractor sought review of an order of the court that denied its tardy motion to amend its complaint to show that the subcontractor breached its agreement to furnish the general contractor with liability insurance, is dismissed as moot.

The injured employee, Oxner, was employed as a hod carrier for the subcontractor for this particular job. He had worked with various construction firms as a hod carrier for approximately 14 years. On March 15, 1971, at about 9 a.m., Oxner, while working on the scaffolding, leaned against the guard rail with his right hand whereupon the rail gave way. As a result, he fell to the ground sustaining serious injuries.

The pertinent testimony adduced at trial indicates the following:

According to Melvin Portue, owner of the scaffolding company, who was at the scene of the accident minutes after it occurred, the guard rail had been changed since it was originally erected and was not the way it was supposed to be. On the particular part of the scaffolding from which Oxner fell, the guard rail was longer than its corresponding bay. Thus, as was the custom in the industry, the rail was originally bolted at one end and wired in two places at the other. After the accident Portue noticed the guard rail was wired where it had originally been bolted and wired differently in only one place where it had originally been wired. Additionally he testified to having noticed the original bolt had been removed in that there was no rust or crystallization where it had been attached.

There was no direct evidence as to who actually altered the fastening on the guard rail involved. However, there was considerable testimony that at different times various trades would, against orders of the superintendent of the general contractor, remove and replace guard rails in order to move in materials. As to this particular guard rail, Joseph Houston, acting superintendent for the contractor, testified he had been on the scaffolding the previous week inspecting the lathers' work and that the rail was not protruding into the work area or irregularly fastened. He stated he would have noticed its irregularity had it been in that condition at that time. After the above inspection of the accident area of the scaffolding up to the day of the accident, there had been no scheduled work in that area.

Houston also testified that in order to make sure the scaffolding was maintained safely, he had to inspect it constantly. Thus every morning Houston would look to see if the scaffolding was all right when he took his daily 'head count' of the different trades working on the job. He further stated he could observe the scaffolding as well from the ground as on the scaffolding and that he actually mounted the scaffolding only when there was some particular work he wanted to inspect. (Melvin Portue also stated he could get a better view from the ground than from the air regarding the condition of the scaffolding.) On the morning of the accident, Houston had looked up at the area of the scaffolding from which Oxner later fell and had seen nothing wrong. According to Houston, if he had seen the guard rail the way it was just before the accident, he would have corrected it.

At the time just before the accident three of the subcontractor's employees, Joe Solis (a plasterer), Bill Ward (the foreman), and Oxner testified that the guard rail protruded into the working area, so much so, the workers either had to duck under it or squeeze between the rail and the wing wall. The foreman Ward testified he had assembled scaffolds for smaller jobs, and also that he had noticed there was an 'unusual position of wiring on the guard rail' which later gave way. However, he had felt it did not look unsafe and thus there was no reason to check further or to change it.

The indemnity clause reads as follows: '(h) to indemnify the 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 any acts or omissions of the subcontractor or any of his officers, employees or servants.'

Other facts appear below.

I

Section 3864 of the Labor Code provides: 'If an action as provided in this chapter prosecuted by the employee, the employer, or both jointly against the third person results in judgment against such third person, or settlement by such third person, the employer shall have no liability to reimburse or hold such third person harmless on such judgment or settlement in absence of a written agreement so to do executed prior to the injury.'

The history behind the enactment of this section, and its purpose recently have been expostulated as follows: 'Prior to 1959, an employer of an employee, injured as the result of the joint negligence of the employer and a third party, was subject to the doctrine of implied indemnity and, like any other joint tortfeasor, was required to indemnify the third party for any judgment recovered by the employee against the third party when the negligence of the employer was active and the negligence of the third party was passive. (Citations.) However, in 1959 the California Legislature, to eliminate the dual insurance burden imposed upon the employers of this state by the workers' compensation law and the implied indemnity doctrine, enacted section 3864 of the California Labor Code. (Citations.)

'Under this section the employer of an employee who is injured as the result of the joint negligence of the employer and a third party is no longer required to indemnify the third party in the absence of an express indemnification agreement. (Citations.) As the appellate court explained in City of Sacramento v. Superior Court (1962) 205 Cal.App.2d 398, 405, 23 Cal.Rptr. 43, 47: '. . . the Legislature met in 1959 and it is the theory of the authors of the article quoted above (Conley & Sayre, Rights of Indemnity (1961) 13 Hastings L.J. 214, 219--220, fn. 29) that 'The California legislature felt that this double burden placed upon the employer was in contravention of the exclusive remedy theory of the (workers') compensation statutes' and that the 1959 addition to the Labor Code under discussion was the result and that its effect was only to abolish 'the right of indemnity by the third person against the injured employee's employer on the theory of implied contract. In order to recover in indemnity the third party must now rely on an Express contract. . . .' We join in this belief. " (E.B. Wills Co. v. Superior Court (1976) 56 Cal.App.3d 650, 653--654, 128 Cal.Rptr. 541, 543. See also De Cruz v. Reid (1968) 69 Cal.2d 217, 226, fn. 6, 70 Cal.Rptr. 550, 444 P.2d 342; Val's Painting & Drywall, Inc. v. Allstate Ins. Co. (1975) 53 Cal.App.3d 576, 584, 126 Cal.Rptr. 267; Pacific Gas & Elec. Co. v. Morse (1970) 6 Cal.App.3d 707, 712--713, 86 Cal.Rptr. 7; and Western Gulf Oil Co. Oilwell Service Co. (1963) 219 Cal.App.2d 235, 241, 33 Cal.Rptr. 20.)

In Morgan v. Stubblefield (1972) 6 Cal.3d 606, 100 Cal.Rptr. 1, 493 P.2d 465, the subcontractor agreed to hold the general contractor harmless 'from all claims for damages to persons . . . caused by subcontractor or which result from subcontractor's operation or defective work . . .' (6 Cal.3d at p. 626, 100 Cal.Rptr. at p. 15, 493 P.2d at p. 479.) The court reversed a judgment, which indemnified the contractor for damages awarded against it for injuries suffered by the subcontractor's employee on a jury verdict which impliedly found that the contractor had been guilty only of passive negligence, because the evidence showed that the contractor was guilty of active negligence as a matter of law (6 Cal.3d at pp. 626--627, 100 Cal.Rptr. 1, 493 P.2d 465). In Vinnell Co. v. Pacific Elec. Ry. Co. (1959) 52 Cal.2d 411, 340 P.2d 604, the court found that the language of the agreement, although broader that that used here, fell short of expressing the indemnitee's intention to exculpate itself from its own sole negligence. (52 Cal.2d at pp. 415 and 416, 340 P.2d 604.)

In reliance on the foregoing precedents, the subcontractor here urges that since the language 'any and all claims, suits or liability for . . . injuries to persons' does not cover liability arising from the active and co-existing negligence or the sole negligence of the contractor, it may properly be limited to exclude liability to reimburse the contractor for its liability to the employee of the subcontractor unless...