CACI No. 3801. Implied Contractual Indemnity

Judicial Council of California Civil Jury Instructions (2023 edition)

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3801.Implied Contractual Indemnity
[Name of indemnitee] claims that [he/she/nonbinary pronoun] [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 following:
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, May 2020, November 2020
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 indemnitors
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 the indemnitor 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. This
instruction should be given only in cases in which the court has determined that the
alleged indemnitor and the indemnitee have “a joint legal obligation to the injured
party.” (Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1160 [90
Cal.Rptr.3d 732, 202 P.3d 1115].)
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,
supra, 45 Cal.4th at p. 1157, internal citations omitted.)
“The right to implied contractual indemnity is predicated upon the indemnitors
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 indemnitors
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
“[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 indemnitors]
breach of warranty was the product of [indemnitors] 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 (11th ed. 2017) Torts, §§ 224, 229
Haning et al., California Practice Guide: Personal Injury, Ch. 4-D, Techniques Where
Settlement Not Forthcoming, 4:784 (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)
California Civil Practice: Torts § 4:14 (Thomson Reuters)
3802-3899. Reserved for Future Use

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