Judge: John C. Gastelum, Case: 20-01162723, Date: 2023-01-09 Tentative Ruling
Motion for Summary Judgment and/or SAI
Tentative Ruling: Defendant and Cross-Complainant, PMC Contractors, Inc.’s Motion for Summary Adjudication as to the 4th COA in the Cross-Complaint for declaratory relief re duty to defend is DENIED. The Subcontractor Agreement does not contain a duty to defend.
PMC Contractors, Inc. directs the court to Paragraphs 1 and 18 of the Subcontractor Agreement in support of its argument that Perry has an obligation to defend PMC in the present action.
Paragraph 1 of the Subcontractor Agreement states:
The SUBCONTRACTOR shall provide all labor, materials, supplies, tools, implements, equipment, scaffolding, fees, etc., necessary to perform and complete, in strict accordance with the plans and specifications above referred to, the following portion of the aforementioned original contract, including all work incident thereto . . .”
Paragraph 18 of the Subcontractor Agreements states:
The SUBCONTRACTOR shall indemnify and save harmless the contractor from and against any and all suits, claims, actions, losses, costs, penalties and damages of whatsoever kind or nature including attorney’s fees, whether or not awarded by a court, arising out of, in connection with or incident to the SUBCONTRACTOR’S performance of the Subcontract Agreement.
Neither of these paragraphs expressly states Perry has a duty to defend PMC. As PMC states in its moving papers, the duty to defend is different from the duty to indemnify.
“The duty to indemnify is distinct from the duty to defend: the former ‘require[s] one party to indemnify the other, under specified circumstances, for moneys paid or expenses incurred ... as a result of” a third party claim, while the latter ‘assign[s] one party ... responsibility for the other’s legal defense when a third party claim is made.’” (Aluma Systems Concrete Construction of California v. Nibbi Bros. Inc. (2016) 2 Cal.App.5th 620, 627 [emphasis in original] [citing Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541, 551].)
“Depending on the contractual language, a duty to defend may exist even if no duty to indemnify is ultimately found.” (Aluma Systems Concrete Construction of California v. Nibbi Bros. Inc. (2016) 2 Cal.App.5th 620, 627 [citing Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541, 561 [under contractual language, “even if the indemnity obligation is triggered only by an ultimate finding of the indemnitor’s fault, the defense obligation applies before, and thus regardless of, any finding to be made in the course of the litigation for which a defense is owed”]; UDC–Universal Development, L.P. v. CH2M Hill (2010) 181 Cal.App.4th 10, 21–22 [rejecting indemnitor’s argument that “the jury’s eventual ‘no negligence’ finding rendered the entire indemnity clause, including the defense provision, inapplicable”]].)
“The duty to defend necessarily arises as soon as the specified claims are made against the promisee” and therefore “may depend on the framing of the third party’s complaint. (Aluma Systems Concrete Construction of California v. Nibbi Bros. Inc. (2016) 2 Cal.App.5th 620, 627 [citations omitted].)
“Unlike the duty to defend, however, the duty to indemnify does not arise until liability is proven. (Aluma Systems Concrete Construction of California v. Nibbi Bros. Inc. (2016) 2 Cal.App.5th 620, 627 [citing Crawford, supra, at p. 559 [“One can only indemnify against ‘claims for damages’ that have been resolved against the indemnitee, i.e., those as to which the indemnitee has actually sustained liability or paid damages.”]; see also ibid. [duty to defend “was not dependent on whether the very litigation to be defended later established [the indemnitor’s] obligation to pay indemnity”].)
PMC relies heavily on Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541 to argue Perry must defend PMC against the third party’s complaint. Importantly, the language in Crawford giving rise to the duty to defend is as follows:
“In the contract, Weather Shield promised (1) ‘to indemnify and save [JMP] harmless against all claims for damages ... loss, ... and/or theft ... growing out of the execution of [Weather Shield’s] work,’ and (2) ‘at [its] own expense to defend any suit or action brought against [JMP] founded upon the claim of such damage[,] ... loss or theft.’” (Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541, 547–548 [emphasis added].)
PMC also relies heavily on Centex Homes v. R-Help Construction Co., Inc. (2019) 32 Cal.App.5th 1230. In Centex “the contract required R-Help to defend and indemnify Centex for all claims ‘to the extent such Claim(s) in whole or in part arise out of or relate to’ R-Help’s work.” (Ibid. [emphasis added].)
Notably, in both cases, the language of the contract expressly stated that the subcontractor was to defend and indemnify. The contract at issue in this action, however, does not include the express language that Perry must defend PMC – the contract only states that Perry must indemnify and save harmless. Thus, the Subcontractor Agreement does not contain an express duty to defend.
As such, the motion is DENIED.
Prevailing party to give notice.