MacDonald & Kruse, Inc. v. San Jose Steel Co.
| Decision Date | 14 December 1972 |
| Citation | 29 Cal.App.3d 413,105 Cal.Rptr. 725 |
| Court | California Court of Appeals Court of Appeals |
| Parties | MacDONALD & KRUSE, INC., a corporation, Cross-Complainant and Respondent, v. SAN JOSE STEEL COMPANY, INC., a corporation, Cross-Defendant and Appellant. SAN JOSE STEEL COMPANY, INC., a corporation, Cross-Complainant and Respondent, v. CALIFORNIA ERECTORS, INC., a corporation, Cross-Defendant and Appellant. The PEOPLE, Acting By and Through the DEPARTMENT OF PUBLIC WORKS, Cross-Complainant and Respondent, v. MacDONALD & KRUSE, INC., a corporation, Cross-Defendant and Appellant. Civ. 37924. |
Brill, Hunt, DeBuys & Burby, by Edward A. DeBuys, and Horvitz & Minikes, by Ellis J. Horvitz, Los Angeles, for cross-complainant, respondent, cross- defendant, and appellant MacDonald & Kruse, Inc.
Veatch, Carlson, Dorsey & Quimby, by Frederick C. Quimby, Jr., and Henry F. Walker, Los Angeles, for cross-defendant, appellant, cross-complainant, and respondent San Jose Steel Co., Inc.
Wyman, Bautzer, Rothman & Kuchel, by Charles L. Fonarow, Beverly Hills, for cross-defendant and appellant California Erectors, Inc.
Harry S. Fenton, Chief Counsel, Sacramento, Joseph A. Montoya, Robert L. Meyer, Hugh R. Williams, and Christopher C. Foley, Los Angeles, for cross-complainant and respondent People of the State of California.
This appeal arises out of indemnity litigation involving the State of California, a general construction contractor, and certain subcontractors. In brief, the state contracted with MacDonald & Kruse, Inc. (MacDonald) to have widened an existing overpass of the Long Beach freeway. MacDonald, as the general contractor, subcontracted with San Jose Steel Company, Inc. (San Jose) for the fabrication and erection of the steel that was to be used on the project, and San Jose, in turn, subcontracted the erection of the steel to California Erectors, Inc. (Erectors). During the course of the construction, an employee of Erectors (hereinafter, the employee) suffered physical injuries as a result of his falling from the overpass to the ground, a distance of some 32 feet. The employee instituted an action for personal injuries against the state, MacDonald, and San Jose, and was awarded judgment in the amount of $294,140 against the state and MacDonald, but not San Jose. Through cross-complaints, the state sought contractual indemnification from MacDonald; MacDonald sought contractual indemnification from San Jose; San Jose sought contractual indemnification from Erectors. The trial court found that the negligence of the state and MacDonald was not active, but that the negligence of Erectors was active. The trial court found that Erectors was San Jose's agent. Each cross-complainant prevailed, and MacDonald, San Jose, and Erectors appeal.
The indemnification judgment in favor of MacDonald and against San Jose must be reversed.
The contract between MacDonald and San Jose provided in part that San Jose 'shall hold (MacDonald) free and harmless from any and all damage to said work caused in the performance of said Subcontract and also from any and all liability, costs and charges arising out of injuries or damages to any and all persons, employees and/or property in any way caused by (San Jose), its agents or employees.' (Markley v. Beagle, 66 Cal.2d 951, 961, 59 Cal.Rptr. 809, 816, 429 P.2d 129, 136.)
San Jose contends that it is not liable to MacDonald under this provision because San Jose did not 'cause' MacDonald's liability. Specifically, San Jose argues as follows: the jury found that the employee's injuries were caused by the negligence of the state, MacDonald, and Erectors; the jury found that San Jose had not acted negligently toward the employee; San Jose was liable to indemnify MacDonald only for MacDonald's liabilities that were caused by San Jose, San Jose's agents, or San Jose's employees; Erectors was San Jose's independent subcontractor, and the trial court erred in treating Erectors as San Jose's agent; therefore, MacDonald's liability was caused by persons who were neither San Jose, nor San Jose's agents, nor San Jose's employees.
In opposition, however, MacDonald cites the case of Baldwin Contracting Co. v. Winston, 236 Cal.App.2d 565, 576, 46 Cal.Rptr. 421, 428 for the proposition that we may 'interpret the term 'agent' . . . to cover more than the technical employees and hold that (the indemnitor) cannot avoid its indemnity obligation to (the indemnitee) by subcontracting its work out to other independent contractors (citations).' In addition, MacDonald argues that San Jose did cause MacDonald's liability. MacDonald reasons as follows: the contract between MacDonald and San Jose provided that 'all rights and remedies reserved to (the state) under the general contract shall apply to and be possessed by (MacDonald) in its dealings with (San Jose)'; the contract between the state and MacDonald provided that MacDonald was to provide all safety equipment, and that '(n)o subcontractor will be recognized as such, and all persons engaged in the work of construction will be considered as employees of (MacDonald) and he will be held responsible for their work. . . .'; therefore, San Jose was under a duty to provide safety equipment, could not 'delegate to Erectors the duty to provide safety nets,' and, as a consequence, 'caused' MacDonald's liability.
We need not resolve this conflict, for even if we assume arguendo that San Jose did cause MacDonald's liability, MacDonald cannot prevail. 1
In general, all contractual indemnity provisions fall within one of three classifications: The first type of provision is that which provides 'expressly and unequivocally' that the indemnitor is to indemnify the indemnitee for, among other things, the negligence of the indemnitee. Under this type of provision, the indemnitee is indemnified whether his liability has arisen as the result of his negligence alone (Vinell Co. v. Pacific Elec. Ry. Co., 52 Cal.2d 411, 340 P.2d 604), or whether his liability has arisen as the result of his co-negligence with the indemnitor (Markley v. Beagle, supra.)
The second type of provision is that which provides that the indemnitor is to indemnify the indemnitee for the indemnitee's liability 'howsoever same may be caused' (Vinnell Co. v. Pacific Elec. Ry. Co., supra) or 'regardless of responsibility for negligence' (Goldman v. Ecco-Phoenix Elec. Corp., 62 Cal.2d 40, 41 Cal.Rptr. 73, 396 P.2d 377), or 'arising from the use of the premises, facilities or services of (the indemnitee)' (Harvey Machine Co. v. Hatzel & Buehler, Inc., 54 Cal.2d 445, 6 Cal.Rptr. 284, 353 P.2d 924), or "which might arise in connection with the agreed work" (Markley, supra), or "caused by or happening in connection with the equipment or the condition, maintenance, possession, operation or use thereof" (Price v. Shell Oil Co., 2 Cal.3d 245, 85 Cal.Rptr. 178, 466 P.2d 722), or 'from any and all claims for damages to any person or property by reason of the use of said leased property' (Morgan v. Stubblefield, 6 Cal.3d 606, 100 Cal.Rptr. 1, 493 P.2d 465). Under this type of indemnity provision, the indemnitee is indemnified from his own acts of passive negligence that solely or contributorily cause his liability, but is not indemnified for his own acts of active negligence that solely or contributorily cause his liability. Our Supreme Court explains that an actively negligent indemnitee will not be indemnified under this type of provision because '(t)he indemnification agreement resembles an insurance agreement' (Goldman, supra, 62 Cal.2d at p. 48, 41 Cal.Rptr. at p. 78, 396 P.2d at p. 382) and an 'indemnitor . . . (will not) be made responsible for the (actively) negligent acts of an indemnitee over whose conduct it has no control, (unless) the language imposing such liability should do so expressly and unequivocally so that the (indemnitor) is advised in definite terms of the liability to which it is exposed' (Vinnell, supra, 52 Cal.2d at pp. 416--417, 340 P.2d at p. 608). A passively negligent indemnitee will be indemnified under this type of provision, however, because such provisions 'manifest that it is the intent of the parties' that the indemnitee's passive negligence 'was one (of the risks), if not the most obvious risk, against which (the indemnitee) sought to be covered.' (Harvey, supra, 54 Cal.2d at pp. 449, 448, 6 Cal.Rptr. at p. 287, 353 P.2d at p. 927.) Most of our Supreme Court's work in the law of contractual indemnity has been with this type of provision and with the indemnitee who has himself been either solely or contributorily responsible for his liabilities. In these cases, 2 the determinative issue is whether the indemnitee's negligence was active or passive.
The third type of contractual provision is that which provides that the indemnitor is to indemnify the indemnitee for the indemnitee's liabilities caused by the indemnitor, but which does not provide that the indemnitor is to indemnify the indemnitee for the indemnitee's liabilities that were caused by other than the indemnitor. Under this type of provision, any negligence on the part of the indemnitee, either active or passive, will bar indemnification against the indemnitor irrespective of whether the indemnitor may have also been a cause of the indemnitee's liability. (Goldman, supra, 62 Cal.2d at p. 49, 41 Cal.Rptr. 73, 396 P.2d 377.) 'In view of the general rule that an . . . indemnity does not reach to protect the indemnitee from a loss to which his negligence has contributed, we must look at least for an express undertaking in the document...
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