Oltmans Construction Co. v. Bayside Interiors, Inc.

A subcontractor need not indemnify a general contractor for liability arising from the general contractor’s own active negligence but must indemnify for added liability the general contractor incurs in the same action as a joint tortfeasor for injury caused by other tortfeasors’ acts.  Under Civ. Code 2782.05, an indemnity provision in a contract between a subcontractor and a general contractor may not require the subcontractor to indemnify the general contractor “to the extent that the claims arise out of, pertain to or relate to the active negligence or willful misconduct of the general contractor.”  The indemnity clause in the contract between the parties to this suit mimicked those words.  This decision holds that under the statute and the contract, when an injury is caused by wrongful acts of several defendants, including the general contractor (which is found guilty of active negligence), the general contractor may recover indemnity from the subcontractor for any liability the general contractor incurs as a joint tortfeasor due to other tortfeasor’s wrongful acts—but it may not obtain indemnity to the extent the general contractor is liable due to its own active negligence.

California Court of Appeal, First District, Division 3 (Pollak, J.); March 30, 3017; 2017 WL 1179391


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