Regional Steel Corp. v. Superior Court
REGIONAL STEEL CORPORATION, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; McCarthy WESTERN CONSTRUCTORS, INC., Et Al., Real Parties in Interest
- Area
- civil
- Panel
- Don R. Work (author)
Analysis
The trial court denied Regional Steel Corporation's motion for summary judgment, finding triable issues of fact regarding the degree of negligence and whether the accident resulted from Regional's sole negligence. The Court of Appeal granted the petition for a writ of mandate, holding that the parties' express indemnity agreement precluded the application of equitable indemnity principles, thereby entitling Regional to summary judgment on that theory.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of motion for summary judgment“The court denied the motion for summary judgment on January 18, 1994, stating it had “determined that there are triable issues of fact as to the degree of negligence, if any, by Regional and McCarthy.”” | de novo | error | agree with court The appellate court found the trial court erred by focusing on factual disputes regarding negligence rather than the legal effect of the express indemnity clause. The court held that because the parties had an express contract defining the scope of indemnity, the independent doctrine of equitable indemnity was inapplicable, making the entitlement to summary judgment on that theory a matter of law. |
Authorities
- relied: Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975) 13 Cal.3d 622 — Where parties have expressly contracted with respect to the duty to indemnify, the extent of that duty must be determined from the contract and not by reliance on the independent doctrine of equitable indemnity.
- relied: E. L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497 — Rules governing express indemnity reflect its contractual nature, permitting freedom of action to the parties while subjecting the language to established rules of construction.
- relied: Alexander v. Superior Court (1993) 5 Cal.4th 1218 — A peremptory writ in the first instance is proper when the entitlement to relief is extraordinarily clear.
- relied: Ng v. Superior Court (1992) 4 Cal.4th 29 — A peremptory writ in the first instance is proper when the entitlement to relief is extraordinarily clear.
The appellate opinion: sound — The opinion correctly applies the established California rule that express indemnity contracts supersede equitable indemnity claims. It accurately identifies that the amended contract limited indemnity to damages caused 'in whole' by the subcontractor, which legally precludes the joint tortfeasor liability required for equitable indemnity.
The trial court denied subcontractor Regional Steel's motion for summary judgment on general contractor McCarthy's cross-complaint for equitable indemnity, comparative contribution and declaratory relief, finding triable issues as to the parties' comparative negligence. The Court of Appeal granted a peremptory writ of mandate in the first instance, holding that because the parties' subcontract contained an express indemnity clause (as amended, limited to damage caused in whole by Regional's negligence), McCarthy could not pursue Regional on equitable indemnity principles and Regional was entitled to summary judgment.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of Regional's motion for summary judgment on McCarthy's cross-complaint for equitable indemnity, comparative contribution and declaratory relief“The “caused in whole” indemnity clause precludes joint tortfeasor liability. By contract, McCarthy bargained away its right to pursue Regional on equitable indemnity grounds.” | unclear | error | unsure Rossmoor does state that where parties have expressly contracted about indemnity the duty is measured by the contract, not equitable indemnity, and the undisputed amended clause here limited Regional's indemnity obligation to sole-negligence situations, which supports reading the parties as having allocated shared-fault losses to McCarthy. But the court did not engage with E. L. White's actual holding that an express indemnity clause does not necessarily bar implied indemnity for circumstances the clause does not cover, and it treated the result as 'extraordinarily clear' without analyzing whether the amendment was intended to displace equitable indemnity for joint negligence rather than merely define contractual indemnity. The result is defensible but the categorical reasoning is thin. |
Finding that triable issues of fact as to the degree of negligence of Regional and McCarthy precluded summary judgment“determined that there are triable issues of fact as to the degree of negligence, if any, by Regional and McCarthy. Therefore, it has not been established that the accident was not the result of Regional’s sole negligence.” | unclear | error | agree with court The appellate court implicitly treated the comparative-fault issues as immaterial because McCarthy's cross-complaint pleaded only equitable theories, not express contractual indemnity, so whether Regional was solely negligent went to a claim not before the court. That is consistent with summary judgment principles that only material disputed facts defeat the motion, and the court expressly reserved any express indemnity claim in footnote 3. The reasoning follows if the court's premise that express indemnity displaces equitable indemnity is accepted. |
Authorities
- relied: Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975) 13 Cal.3d 622 — Indemnity may arise by express contract, by implication from contract, or from equity; where parties have expressly contracted regarding the duty to indemnify, the extent of that duty is determined from the contract and not the independent doctrine of equitable indemnity.
- relied: E. L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497 — Express indemnity is governed by its contractual nature and established rules of construction; the opinion cites it for this general point but does not address its holding that an express indemnity clause not covering the circumstances at issue does not bar implied indemnity.
- relied: Alexander v. Superior Court (1993) 5 Cal.4th 1218 — A peremptory writ in the first instance is proper where the petitioner's entitlement to relief is clear.
- relied: Ng v. Superior Court (1992) 4 Cal.4th 29 — Peremptory writ in the first instance is appropriate under Code of Civil Procedure section 1088 in appropriate cases where the right to relief is clear.
The appellate opinion: sound with gaps — The opinion correctly identifies Rossmoor's rule that an express indemnity contract governs the parties' indemnity relationship and reasonably reads the amended 'caused in whole' clause as an allocation that excludes shared-fault indemnity. It skips, however, the qualification recognized in E. L. White (which it cites for another point) that an express clause does not automatically bar implied indemnity for matters outside its scope, and offers no contract-interpretation analysis of the parties' intent beyond the clause's text, which leaves the categorical holding thinly supported.
Opinion — Work
Opinion
WORK, Acting P. J.Regional Steel Corporation (Regional) petitions for a writ of mandate after the court denied its motion for summary judgment in *527 this action arising from injuries to an ironworker. Regional, a subcontractor, was named in a cross-complaint for equitable indemnity, comparative contribution and declaratory relief by the general contractor after the ironworker sued the general contractor. Regional contends it was entitled to summary judgment because principles of equitable or comparative indemnity are inapplicable when parties have an express indemnity agreement. We agree and grant the petition.
Factual and Procedural Background
McCarthy Western Constructors, Inc. (McCarthy) was the general contractor in a project to build a science building on the University of California, San Diego campus. Under a subcontract with McCarthy dated April 24, 1991, Regional agreed to supply and install reinforcing bar in the project. The “Insurance and Indemnity” section of the subcontract originally provided in part: “5.6 To the fullest extent permitted by law, Subcontractor agrees to indemnify and hold harmless McCarthy, the Owner, the Architect and all of their agents, officers and employees from and against all claims, damages, losses and expenses, including but not limited to attorney’s fees and court costs, arising out of or resulting from the performance, or failure in performance, of Subcontractor’s Work and obligations as provided in the Contract Documents, including any extra Work, and from any claim, damage, loss or expense which (1) is attributable to bodily injury, sickness, disease, death, injury to or destruction of tangible property (other than the Work itself) including the loss of use resulting therefrom, and (2) is caused in whole or in part by any acts, omissions or negligence of Subcontractor or anyone directly or indirectly employed by Subcontractor or anyone for whose acts Subcontractor may be liable regardless of whether it is caused in part by the acts, omissions or negligence of a party indemnified hereunder. Such obligations shall not be constituted to negate, abridge, or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any party or person described in this Paragraph 5.6.” The parties later amended their agreement to provide: “Article 5.6: Regional Steel Corporation will indemnify others only to the extent that damage is caused in whole by any negligent act or omission by anyone directly employed by or under the control of Regional Steel Corporation.”
On August 5, 1992, Michael DeLaura (DeLaura) filed a complaint for negligence against McCarthy and others, 1 alleging he was injured after being knocked from a truck by McCarthy’s crane while unloading rebar. McCarthy *528 cross-complained against Regional for equitable indemnity, comparative contribution and declaratory relief on December 18, 1992. 2
Regional moved for summary judgment (Code Civ. Proc., § 437c) on the grounds it was not a joint tortfeasor and thus could not be subject to a claim for comparative equitable indemnity. Regional lodged a copy of the subcontract and amendment with its motion. McCarthy opposed the motion, arguing triable issues exist whether Regional properly supervised the work, whether Regional properly bundled, loaded and transported the rebar and whether Regional failed to conduct a required safety program.
In reply, Regional argued it was also entitled to summary judgment because McCarthy did not dispute the existence of the subcontract or the existence of the express indemnity clause, which precluded McCarthy from seeking liability on principles of equitable indemnity. McCarthy in turn responded it could pursue Regional under either or both theories of equitable and contractual indemnity and it had not yet been determined if the express indemnity clause applied to DeLaura’s claim.
The court denied the motion for summary judgment on January 18, 1994, stating it had “determined that there are triable issues of fact as to the degree of negligence, if any, by Regional and McCarthy. Therefore, it has not been established that the accident was not the result of Regional’s sole negligence. As a result, it has not been established as a matter of law that Regional has no liability for indemnity under its contract or otherwise.” Regional petitioned to this court. Following McCarthy’s response, we stayed the trial set for May 13.
Discussion
“Indemnity may be defined as the obligation resting on one party to make good a loss or damage another party has incurred. . . . This obligation may be expressly provided for by contract . . . , it may be implied from a contract not specifically mentioning indemnity, or it may arise from the equities of particular circumstances.” (Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975) 13 Cal.3d 622, 628 [119 Cal.Rptr. 449, 532 P.2d 97], citations omitted.) Express indemnity and implied indemnity are subject to their own distinctive legal rules and limitations. “Those [rules] governing so-called ‘express’ indemnity reflect its contractual nature, permitting great freedom of action to the parties in the establishment of the indemnity *529 arrangements while at the same time subjecting the resulting contractual language to established rules of construction.” (Fn. omitted.) (E. L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497, 507 [146 Cal.Rptr. 614, 579 P.2d 505].) “Where . . . parties have expressly contracted with respect to the duty to indemnify, the extent of that duty must be determined from the contract and not by reliance on the independent doctrine of equitable indemnity.” (Rossmoor Sanitation, Inc. v. Pylon, Inc., supra, 13 Cal.3d, 622, 628.)
Here, the April 24, 1991, subcontract between McCarthy and Regional contained an express indemnity clause requiring Regional to indemnify McCarthy and others where the loss or damage was “caused in whole or in part” by Regional, its employees, or certain others under Regional’s control. McCarthy and Regional later made several “Clarifications to Subcontract” including changing the indemnity clause to provide Regional would indemnify others “only to the extent that damage is caused in whole by any negligent act or omission by anyone directly employed by or under the control” of Regional. (Italics added.) The “caused in whole” indemnity clause precludes joint tortfeasor liability. By contract, McCarthy bargained away its right to pursue Regional on equitable indemnity grounds. Because Regional’s duty is limited by contract and McCarthy did not sue on the contract, Regional was entitled to summary judgment. 3
As Regional’s entitlement to relief is extraordinarily clear, a peremptory writ in the first instance is proper. (Code Civ. Proc., § 1088; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222 [23 Cal.Rptr.2d 397, 859 P.2d 96]; Ng v. Superior Court (1992) 4 Cal.4th 29, 35 [13 Cal.Rptr.2d 856, 840 P.2d 961].)
Disposition
The petition is granted. The stay issued on April 7, 1994, is vacated upon issuance of the remittitur.
Todd, J., and Nares, J., concurred.
DeLaura also named McCarthy Crane Company and Allan L. Rondo, the alleged crane operator. We omit the other named defendants as unnecessary to our discussion.
McCarthy also cross-complained against another entity, Reinforcing Post Tensioning Services, Inc., for express indemnity and breach of contract. Because Reinforcing Post Tensioning Services, Inc. is not a party to this petition, we omit its procedural history.
We do not comment on a possible claim by McCarthy for express contractual indemnity.
Cites, in this corpus
- Alexander v. Superior Court S026431 · 1993-10-14
- Ng v. Superior Court S025119 · 1992-12-03
- E. L. White, Inc. v. City of Huntington Beach L.A. 30866 · 1978-05-31
- Rossmoor Sanitation, Inc. v. Pylon, Inc. L.A. 30356 · 1975-02-28
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