Solano Concrete Co. v. Lund Construction Co.

Opinion

PARAS, J.

In a wrongful death action, defendant Solano Concrete Company, Inc. (hereinafter “Solano”), filed a cross-complaint requesting a declaration of its asserted right to indemnity from the decedent’s

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employer, Lund Construction Company (hereinafter “Lund”). The court sustained a demurrer to the cross-complaint without leave to amend on the theory that under Labor Code section 3864 there was no written agreement to indemnify executed prior to the death and that Lund had not waived the benefit of section 3864 by executing a written agreement (hereinafter the “subcontract”) with Solano

after

the death. Judgment of dismissal was entered, and Solano appealed.

The cross-complaint alleges that on June 30, 1973, a subcontract was prepared, but not signed, between Solano as general contractor and Lund as subcontractor. Lund was to furnish all labor and materials to construct the sanitary sewers, storm sewers, and water system for a subdivision known as Fairmont # 13. Lund was also to indemnify and hold Solano harmless from any and all liability, claims, and damages caused or claimed to be caused by the independent or concurrent negligence of Solano and Lund.

The work commenced on the subdivision even though the subcontract remained unsigned. Solano dug the trenches that would eventually contain the sewer and water lines. On August 16, 1973, Peter Ygnatowiz, art employee of Lund, descended into one of the trenches and was killed when its walls collapsed. A wrongful death action was filed against several defendants, including Solano.

1

Almost two years later, Solano and Lund signed the subcontract.

Subsequently Solano filed the cross-complaint in question against Lund. In addition to the foregoing, it alleged in a first cause of action that by the terms of the unsigned subcontract, Solano was entitled to a defense and indemnification with regard to the wrongful death action. A second cause of action alleged that the subcontract was executed after Ygnatowiz’s death, and that Lund had thereby waived any right to assert, invoke, or rely upon section 3864; estoppel was also asserted.