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Ericksen Arbuthnot’s Appellate Practice Group Wins Summary Judgment in Express Indemnity Case

Ericksen Arbuthnot’s Appellate Practice Group has prevailed in another significant case. In a recent ruling from the Sacramento County Superior Court, the judge entered summary judgment in favor of Ericksen Arbuthnot’s client.

This case arose from the alleged wrongful death of a prisoner at the Sacramento County Jail. The prisoner died while under the care of physicians employed by the County of Sacramento (“the County”). The decedent’s surviving relative sued the County and its employees for wrongful death. The County settled the underlying case for $1.45 million.

Following its settlement of the underlying case, the County brought an express indemnity action against a contractor (“the Contractor”) that had provided personnel to work at the jail. The County asserted that a nurse provided by the Contractor had caused the prisoner’s death by failing to inform the County physicians of the severity of the prisoner’s condition. In its indemnity action, the County sought to recover $1.45 million in settlement proceeds, as well as $497,000 in attorney fees it incurred in defending the underlying action. The County based its express indemnity action against the Contractor solely on the following indemnity provision:

CONTRACTOR shall indemnify, defend, and hold harmless COUNTY, its Board of Supervisors, officers, directors, agents, employees, and volunteers from and against any and all claims, demands, actions, losses, liabilities, damages and costs, including reasonable attorney’s fees, arising out of or resulting from the performance of this Agreement, regardless of whether caused in part by a party indemnified hereunder.

Ericksen Arbuthnot filed a motion for summary judgment or in the alternative summary adjudication of issues on behalf of the Contractor, arguing that Paragraph XVI was a general indemnity provision that did not obligate the Contractor to indemnify the County for its “active negligence.” (See Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975) 13 Cal.3d 622 (“Rossmoor”).)

As Ericksen Arbuthnot argued, Paragraph XVI did not clearly and explicitly indemnify the County for its active negligence, even while another provision in the contract did use such “active negligence” language, demonstrating the parties’ intent that the Contractor was not obligated to indemnify the County for its active negligence under Paragraph XVI.

Ericksen Arbuthnot further argued that the evidence demonstrated, as a matter of law, that the County was actively negligent, even though such a determination is ordinarily a question for the trier of fact. (Rossmoor, supra, 13 Cal.3d at 629 [“Whether conduct constitutes active or passive negligence . . . is ordinarily a question for the trier of fact; active negligence may be determined as a matter of law, however, when the evidence is so clear and undisputed that reasonable persons could not disagree.”].) In its opposition, the County asserted that the active/passive dichotomy was “overly simplistic” and that more recent California decisions had “rejected the formalistic analysis advanced by Rossmoor.”

The superior court judge agreed with Ericksen Arbuthnot on both counts, finding that: (1) Paragraph XVI was a general indemnity clause, as a matter of law, and (2) the County was actively negligent in its treatment of the decedent, as a matter of law. Having summarily adjudicated both of these two issues in the Contractor’s favor, the Court entered judgment for the Contractor. The County has filed an appeal in the Third Appellate District, so this case is not yet final. As this case demonstrates, however, Rossmoor continues to be good law and may be used to defend claims based on unclear indemnity provisions.

Gregory Mase and Mark Tratten worked on this case to its conclusion in the trial court. Mr. Mase is the Chair of Ericksen Arbuthnot’s Appellate Practice Group, and frequently handles dispositive motions at the trial court level, as in this case. He can be reached at 510.367.2953 or . Mr. Tratten was the lead trial attorney on this case and can be reached at 916.483.5181 or .