Harvey Machine Co. v. Hatzel

WHITE, J. The defendants, construction contractors, appeal from a judgment declaring that they are obligated to indemnify the plaintiffs by virtue of a hold harmless and indemnification clause contained in an agreement whereby the defendants, with other contractors, undertook to construct a new industrial plant in its entirety for the plaintiff Harvey Machine Company, Inc. The plaintiff Pacific Indemnity Company is Harvey’s insurer against “liability imposed by law.”

The cause as framed by the pleadings was submitted to the trial court on an agreed statement of facts. It appears therefrom that, pursuant to the terms of a written agreement, the defendants undertook to make certain electrical installations in Harvey’s plant then under construction. While the defendants and other construction contractors were thus engaged, Sam Mann, an employee of the defendants while engaged in his duties on the premises, fell into an open elevator pit. The pit and elevator comprised a part of the overall installation on which Mann was employed. He sustained injuries for which he recovered a workmen’s compensation award pursuant to his status as an employee of the defendants. He thereafter commenced an action against Harvey as an alleged tort feasor, in which he seeks to recover $75,000 general damages and other unspecified sums for loss of earnings and medical expenses incurred as a result of his fall.

Harvey, upon commencement of the action by Mann, made demand on the defendants to defend the action under the aforesaid hold harmless and indemnity provisions of the agreement. The defendants refused on the ground, apparently, that those provisions do not provide protection for the indemnitee against its own acts of negligence. This action in declaratory relief was then commenced for a declaration that the defendants are required to indemnify and hold the plaintiffs harmless from Mann’s claims. By its judgment the trial court declared that the defendants were “to pay any and all costs and expenses of” Harvey in the Mann action, “and any judgment that may be rendered against” Harvey in that action. It may [447]be assumed for purposes of this proceeding that Mann’s fall into the pit was a consequence of some breach of duty owed to Mann on the part of Harvey.

The particular provisions of the agreement with which we are concerned read as follows:

“Accident Prevention :

“(a) In order to provide safety controls for protection to the life and health of employees and other persons; for prevention of damage to property, materials, supplies and equipment ; and for avoidance of work interruptions in the performance of this contract; the . . . [defendants] shall comply with all pertinent provisions and Safety Requirements of Federal and State Laws building codes and regulations in effect during the course of the work, and will also take or cause to be taken such additional measures as . . . [Harvey] may determine to be reasonably necessary for the purpose.