Indemnity Loss Was Fatal And Contract Had No Separate Duty To Defend Obligation Independently Triggering Reimbursement Rights.
Children play on inflatable water slide. Dallas, Texas. 2014. Carol M. Highsmith, photographer. Library of Congress.
In Grandpa’s Jumps v. Archdiocese of Los Angeles, Case No. B276894 (2d Dist., Div. 1 Oct. 31, 2017) (unpublished), Grandpa Jumps provided a 16-foot tall inflatable slide for an Archdiocese “Fiesta” high school fundraiser, with a minor falling from the slide and fracturing his skull and with both parties settling the minor’s subsequent suit for the injuries. Grandpa’s Jumps cross-claimed against Archdiocese based on a contractual indemnity clause, but the cross-claim was unsuccessful because Grandpa Jumps was found to have been actively negligent. However, Grandpa Jumps later moved to recoup $168,577.50 in attorney’s fees and $29,074.16 in costs based on the theory that Archdiocese had an independent duty to absorb its costs of defense as part of the indemnity rights. The trial judge denied the fees/costs motion.
The Second District, Division 1 agreed. The problem for Grandpa Jumps was that it lost the indemnity claim, which usually embraces the costs of defense rights also. Nothing in the indemnity clause triggered an independent duty to reimburse its defense costs no matter the result on the indemnity claim such that the motion denial was proper. (Civ. Code, § 2778, subd. (3).)