Ralph M. Parsons Co. v. Combustion Equipment Associates, Inc.

• Decision Date: 17 September 1985
• Citation: 172 Cal.App.3d 211,218 Cal.Rptr. 170
• Court: California Court of Appeals Court of Appeals
• Parties: RALPH M. PARSONS COMPANY, Cross-Complainant and Respondent, v. COMBUSTION EQUIPMENT ASSOCIATES, INC., Cross-Defendant, Cross-Complainant and Appellant. Dudick Corrosion Proof Manufacturing, Inc., Cross-Defendant and Respondent. Civ. 29805, E000448.

Page 170

218 Cal.Rptr. 170

172 Cal.App.3d 211

RALPH M. PARSONS COMPANY, Cross-Complainant and Respondent, v. COMBUSTION EQUIPMENT ASSOCIATES, INC., Cross-Defendant, Cross-Complainant and Appellant Dudick Corrosion Proof Manufacturing, Inc., Cross-Defendant and Respondent.

Civ. 29805, E000448.

Court of Appeal, Fourth District, Division 2, California.

Sept. 17, 1985.

[172 Cal.App.3d 215] Wilson, Borror, Dunn & Scott and James R. Dunn, San Bernardino, for cross-complainant and respondent.

Kinkle, Rodiger & Spriggs and James L. Price, San Diego, for cross-defendant, cross-complainant and appellant.

Bruggeman, Smith & Peckham, Richard C. Gibson and Charles A. Peckham, San Bernardino, for cross-defendant and respondent.

OPINION

KAUFMAN, Associate Justice.

Appellant Combustion Equipment Associates, Inc. (hereafter Combustion) appeals from judgments of the superior court denying its claim for express indemnity against Dudick Corrosion Proof Manufacturing, Inc. (Dudick) and holding Combustion liable under an express indemnity agreement to Ralph M. Parsons Company (Parsons) ¹ for injuries suffered by Joseph H. Miranda who was the plaintiff in the action.

Introductory Facts

Parsons was the contractor on a multi-million dollar construction project for the Kerr-McGee Chemical Corporation (Kerr-McGee) in Trona, California, involving thousands of workers. Combustion entered into a subcontract with Parsons to do a part of the job. Combustion in turn subcontracted a part of its work to Dudick.

Plaintiff Joseph Miranda was an employee of Dudick. He was injured at the jobsite on February 1, 1977, when he was struck by a falling board that was being used to bridge between two scaffolds.

The facts relating to the injury will be set forth separately and the facts relating to the agreements between Parsons and Combustion and between Combustion and Dudick will be developed separately in connection with the discussion of each agreement.

Procedural History

Plaintiff filed his complaint for personal injury on January 31, 1978, against Parsons and Does 1 through 20. Parsons filed its answer on March 22, 1978, and on March 7, 1979, filed its cross-complaint against Combustion for express and implied indemnity, partial contribution and declaratory relief. Combustion filed its answer to Parsons' cross-complaint on April 11, 1979, and also cross-complained against Dudick for indemnity, contribution and declaratory relief in October 1979.

Dudick demurred to Combustion's cross-complaint, and Combustion filed a first amended cross-complaint on or about March 6, 1980. Dudick again demurred to the first amended cross-complaint of Combustion, and the demurrer was sustained as to the second (implied indemnity) and third (equitable indemnity and/or contribution) causes of action without leave to amend. The ground stated for sustaining the demurrer was Labor Code section 3864. ² On June 19, 1981, Dudick filed its answer to the remaining causes of action (express indemnity and declaratory relief) of Combustion's cross-complaint.

At a settlement conference on May 12, 1981, plaintiff Miranda's attorney apparently realized for the first time that Combustion had not been named or served as a defendant in the personal injury action. Plaintiff amended his complaint to substitute Combustion for defendant Doe I and served Combustion in approximately July 1981, and Combustion answered on August 14, 1981.

Dudick moved to bifurcate the trial to try the cross-action between Combustion and Dudick before trial on the main action. The motion was granted over Combustion's objection. Parsons made a similar motion to bifurcate the trial on its cross-complaint, but Parsons' motion was denied.

Trial to the court on Combustion's cross-complaint for indemnity against Dudick ensued and resulted in a determination in favor of Dudick.

Before trial on the main action and Parsons' cross-complaint for indemnity, Parsons entered into a settlement agreement with plaintiff Miranda for $100,000, which the trial court approved as a good faith settlement. Jury trial on the complaint ensued. The jury fixed plaintiff's damages at $300,000 and by special verdicts found Combustion 50 percent negligent, Dudick 40 percent negligent and plaintiff Miranda 10 percent negligent. The jury did not consider or fix the percentage of negligence attributable to Parsons but at the court's request rendered an advisory verdict that Parsons' negligence was "active" and Combustion's negligence was "passive."

By stipulation Parsons' cross-complaint for indemnity was tried to the court sitting without a jury. The court gave judgment in favor of Parsons against Combustion for the amount of Parsons' settlement with plaintiff Miranda ($100,000) plus attorney's fees and costs.

Combustion's appeal is from the judgment as to each of the cross-complaints: the award to Parsons of indemnity against Combustion, and the denial to Combustion of indemnity from Dudick.

Facts Relating to the Injury

Dudick's portion of the job consisted of applying an acid resistant material to the inside surfaces of large vessels called absorbers at the jobsite. In order to perform its job, Dudick required scaffolds. Leon Hunter, a Parsons carpenter and foreman, constructed two rolling scaffolds for use by Dudick. To keep the planks from slipping off the scaffold he nailed pieces of 3/4"' plywood cut two inches long to the underside of each end of the scaffold planks. These devices are referred to as "cleats." In addition, the planks were wired down to the scaffolds. Hunter also constructed bridging between the two scaffolds. The bridging boards were nailed down and handrails of 2"' X 4"' lumber were installed between the scaffolds. When the scaffolds were completed they met all relevant safety requirements.

Parsons, as the general contractor, held weekly or biweekly safety meetings. Hunter, the Parsons carpenter/foreman, was required by Parsons to have safety meetings in his area of the jobsite. In addition, each shop steward had special meetings for their own personnel, and the shop stewards would meet together once a week. No one from Dudick attended the safety meetings. In fact, plaintiff Miranda testified he was instructed by Dudick personnel not to attend safety meetings.

Parsons employed a safety supervisor, Charles Ryden, who was responsible for the project safety program. Ryden conducted safety committee meetings once a week with members from each craft. Among the topics discussed were the required safety features on scaffolding, including toeboards, rails, cleats, and methods of securing boards to scaffolds.

Hunter, the Parsons carpenter/foreman, testified that he had complained to Ryden, the safety supervisor, before the accident about unsafe modifications Dudick had made to the scaffolds. After Hunter constructed the scaffolds, he observed that Dudick personnel had removed the handrails and some of the bridging boards between the two scaffolds. He also saw that the bridging boards were no longer nailed down. Hunter testified that Ryden told him to "back off" and that it was "none of his business." Ryden denied making such statements.

At the time he was working for Dudick, plaintiff noticed that the bridging boards between the two scaffolds were not secured. Sometimes one plank, and at other times two planks, would be used to bridge between the two scaffolds. When moving the scaffolds, the workers would remove the bridging boards, stacking them on one of the scaffolds. Then the scaffolds would be moved. The accident occurred on February 1, 1977, when some of plaintiff's fellow Dudick workers were about to move one of the scaffolds. No one checked to see if the bridging boards had been removed. The workers pushed the scaffold out from under a bridging board, which fell and struck the plaintiff. The bridging board had not been nailed down. Plaintiff was not wearing his hard hat at the time he was struck by the falling board.

Steven Griffin testified he was the supervising employee for Combustion on the job. Griffin knew it was his duty to report any unsafe practices he noticed. Griffin did not, however, attend any of the safety meetings. He testified he was responsible to supervise the safety of the Combustion portion of the job, he was on the jobsite on almost a daily basis, he would check to see if Dudick was following safety practices, and he would observe the jobsite and determine if any safety violations existed. Although Griffin often went up onto the scaffolds to inspect the work in progress, he did not see any unsecured bridging boards.

Parsons v. Combustion

The contract between Parsons and Combustion called for Combustion to design and install a "flue gas cleaning system" and to install a lining on the ducts, for a contract price of $5,367,100. The contract designated Kerr-McGee Chemical Corporation as the owner, Parsons as the contractor and Combustion as the subcontractor. Among other things the contract provided that Combustion would carry comprehensive public liability insurance covering the work, including coverage for liability assumed by contract, with bodily injury and death limits of not less than $500,000 as to any one person and $1 million as to any one occurrence. Combustion agreed that in the performance of the work it would abide by and enforce all fire and safety regulations and comply with all applicable laws, ordinances, statutes and rules and regulations, including all applicable federal, state and local laws, rules and regulations relating to safety and health. As part of the provision so providing, Combustion agreed "to hold CONTRACTOR and OWNER respectively free and harmless of and from, and defend and indemnify them against all liability, loss, damage, expense, costs (including without limitation costs and fees of litigation) of every nature arising out of any failure or alleged failure of SUBCONTRACTOR to perform and observe all of the requirements of all or any...