California Civil Jury Instructions (CACI) (2017)

3801. Implied Contractual Indemnity

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3801.Implied Contractual Indemnity
[Name of indemnitee] claims that [he/she] [is/was/may be] required to
pay [describe liability, e.g., “a court judgment in favor of plaintiff John
Jones”] because [name of indemnitor] [failed to use reasonable care in
performing work under an agreement with [name of indemnitee]/[specify
other basis of responsibility]]. In order for [name of indemnitee] to recover
from [name of indemnitor], [name of indemnitee] must prove both of the
1. That [name of indemnitor] [failed to use reasonable care in
[performing the work/[describe work or services, e.g., testing the
soil]] under an agreement with [name of indemnitee]/[specify other
basis of responsibility]]; and
2. That [name of indemnitor]’s conduct was 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/[specify 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 indemnitor][,/ and] [[name of indemnitee][, and] all other persons
responsible] for [name of plaintiff]’s harm.]
New September 2003; Revised December 2007
Directions for Use
The party identifications in this instruction assume a cross-complaint between
indemnitor and indemnitee defendants. In a direct action by the indemnitee against
the indemnitor, “name of plaintiff” will refer to the person to whom the indemnitee
has incurred liability.
Implied contractual indemnity may arise for reasons other than the indemnitor’s
negligent performance under the contract. If the basis of the claim is other than
negligence, specify the conduct involved. (See Garlock Sealing Technologies, LLC
v. NAK Sealing Technologies Corp. (2007) 148 Cal.App.4th 937, 974 [56
Cal.Rptr.3d 177] [breach of warranty].)
Read the last bracketed portion if the indemnitor claims that he or she was not the
sole cause of the indemnitee’s liability or loss. Select options depending on whether
the indemnitor alleges contributory conduct of the indemnitee, of others, or of both.
Element 1 will have to be modified if there are different contributing acts alleged
against the indemnitee and others; for example, if the indemnitee is alleged to have
been negligent and another party is alleged to be strictly liable.
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.
Sources and Authority
• “In general, indemnity refers to ‘the obligation resting on one party to make
good a loss or damage another party has incurred.’ Historically, the obligation
of indemnity took three forms: (1) indemnity expressly provided for by contract
(express indemnity); (2) indemnity implied from a contract not specifically
mentioning indemnity (implied contractual indemnity); and (3) indemnity
arising from the equities of particular circumstances (traditional equitable
indemnity). [¶ ] Although the foregoing categories of indemnity were once
regarded as distinct, we now recognize there are only two basic types of
indemnity: express indemnity and equitable indemnity. Though not
extinguished, implied contractual indemnity is now viewed simply as ‘a form of
equitable indemnity.’ ” (Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th
1151, 1157 [90 Cal.Rptr.3d 732, 202 P.3d 1115], internal citations omitted.)
• “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, original italics.)
• “[A]n implied contractual indemnity claim, like a traditional equitable
indemnity claim, is subject to the American Motorcycle rule that a party’s
liability for equitable indemnity is based on its proportional share of
responsibility for the damages to the injured party.” (Prince, supra, 45 Cal.4th
at p. 1165, original italics.)
• “[O]ur recognition that ‘a claim for implied contractual indemnity is a form of
equitable indemnity subject to the rules governing equitable indemnity claims’
corrects any misimpression that joint liability is not a component.” (Prince,
supra, 45 Cal.4th at p. 1166, internal citation 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. v. Superior Court (1990) 50 Cal.3d 1012,
1031 [269 Cal.Rptr. 720, 791 P.2d 290].)
• “We conclude the trial court erred in denying [the indemnitee’s] implied
contractual indemnity based on [indemnitee’s] failure to prove [the
indemnitor’s] breach of warranty was the product of [indemnitor’s] failure to
use reasonable care in performing its contractual duties. [Indemnitee] does not
need to prove a negligent breach of contract to be entitled to implied
contractual indemnity.” (Garlock Sealing Technologies, supra, 148 Cal.App.4th
at p. 974, internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 118, 178
Haning et al., California Practice Guide: Personal Injury, Ch. 4-D, Techniques
Where Settlement Not Forthcoming, ¶ 4:189.6a (The Rutter Group)
5 Levy et al., California Torts, Ch. 74, Resolving Multiparty Tort Litigation,
§ 74.03[6] (Matthew Bender)
25 California Forms of Pleading and Practice, Ch. 300, Contribution and
Indemnity, § 300.61[5] (Matthew Bender)
11 California Points and Authorities, Ch. 115, Indemnity and Contribution,
§ 115.91[3][a] (Matthew Bender)
1 California Civil Practice: Torts § 4:13 (Thomson Reuters West)
3802–3899. Reserved for Future Use