California Civil Jury Instructions (CACI)
3801. Implied Contractual Indemnity
[Name of indemnitee] claims that [he/she] [is/was] required to pay [describe liability, e.g., "a court judgment in favor of [name of plaintiff]"] because of [name of indemnitor]'s failure to use reasonable care in performing work under an agreement with [name of indemnitee]. In order for [name of indemnitee] to recover from [name of indemnitor], [name of indemnitee] must prove both of the following:
1. That [name of indemnitor] failed to use reasonable care in [performing the work/[describe work or services]] under an agreement with [name of indemnitee]; and
2. That [name of indemnitor]'s failure contributed as a substantial factor in causing [name of plaintiff]'s harm.
[[Name of indemnitor] claims that [name of indemnitee] [and] [insert identification of others] contributed as [a] substantial factor[s] in causing [name of plaintiff]'s harm. To succeed, [name of indemnitor] must prove both of the following:
1. That [name of indemnitee] [and] [insert identification of others] [was/were] [negligent/[other basis of responsibility]]; and
2. That [name of indemnitee] [and] [insert identification of others] contributed as [a] substantial factor[s] in causing [name of plaintiff]'s harm.
You will be asked to determine the percentages of responsibility of [name of indemnitee], [name of indemnitor] [, and all other persons responsible] for [name of plaintiff]'s harm.]
Directions for Use
A special finding that an agreement existed may create a need for instructions, but it is a question of law whether an agreement implies a duty to indemnify. Read the last bracketed portion when the indemnitor claims he or she was not the sole cause.
Sources and Authority
"The right to implied contractual indemnity is predicated upon the indemnitor's breach of contract, 'the rationale . . . being that a contract under which the indemnitor undertook to do work or perform services necessarily implied an obligation to do the work involved in a proper manner and to discharge foreseeable damages resulting from improper performance absent any participation by the indemnitee in the wrongful act precluding recovery.' . . . 'An action for implied contractual indemnity is not a claim for contribution from a joint tortfeasor; it is not founded upon a tort or upon any duty which the indemnitor owes to the injured third party. It is grounded upon the indemnitor's breach of duty owing to the indemnitee to properly perform its contractual duties.' " (West v. Superior Court (1994) 27 Cal.App.4th 1625, 1633 [34 Cal.Rptr.2d 409], internal citations omitted, italics in original.)
"When parties have not entered into an express indemnification agreement specifying that one party will bear all of the liability for a loss for which both parties may be partially responsible, the principles of American Motorcycle support an apportionment of the loss under comparative indemnity principles." (Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1029, fn. 10 [269 Cal.Rptr. 720, 791 P.2d 290].)
"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. Where . . . the 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. (1975) 13 Cal.3d 622, 628 [119 Cal.Rptr. 449, 523 P.2d 97], internal citations omitted.)
"[U]nder [Code of Civil Procedure] section 877.6, subsection (c), . . . an [implied contractual] indemnity claim, like other equitable indemnity claims, may not be pursued against a party who has entered into a good faith settlement." (Bay Development, Ltd., supra, 50 Cal.3d at p. 1031.)
5 Witkin, Summary of California Law (2002 supp.) Torts, § 98B, p. 88
5 Levy et al., California Torts, Ch. 74, Comparative Negligence, § 74.03 (Matthew Bender)
32 California Forms of Pleading and Practice, Ch. 362, Mental Suffering and Emotional Distress (Matthew Bender)
15 California Points and Authorities, Ch. 153, Mental Suffering and Emotional Distress (Matthew Bender)
1 Bancroft-Whitney's California Civil Practice: Torts (1992) Indemnity, Contribution, and Setoff, § 4:13, p. 17
(New September 2003)