California Indemnity Attorney Fees
In Otis Elevator Co. v. Toda Construction (1994) 27 Cal. App. 4th 559, 564 32 Cal. Rptr. 2d 404, the court held that an indemnification agreement providing indemnity for " 'all liability, . . . losses, damages, expenses, . . . awards and judgements (including reasonable attorney's fees)' " incidental to the performance of the construction contract did not include attorney fees incurred within the action to enforce the indemnity provision of the contract.
The court relied upon the general rule that attorney fees are not recoverable unless provided for by statute or by contract. (Code Civ. Proc., 1021.)
Otis Elevator Co. noted that Civil Code section 2778 (governing indemnity contracts) had been construed by the Ninth Circuit Court of Appeals in DeWitt v. Western Pacific R. Co. (9th Cir. 1983) 719 F.2d 1448 to extend indemnification benefits to include attorneys fees incurred in prosecuting an indemnification claim.
However, the California appellate courts have not followed DeWitt and have concluded that unless an indemnity agreement specifically provides for attorney fees incurred in pursuing the indemnity claim, the indemnitee is not entitled to such fees. (Otis Elevator Co., supra, 27 Cal. App. 4th at pp. 565-566, and cases cited therein.)
Similarly, under Code of Civil Procedure section 1021.6 (attorney fees for implied indemnity), the courts have held that although the indemnitee is entitled to attorney fees in the underlying action, fees incurred in bringing the indemnification action itself are not recoverable. (Bear Creek Planning Com. v. Title Ins. & Trust Co. (1985) 164 Cal. App. 3d 1227, 1245-1246 211 Cal. Rptr. 172 (Bear Creek Planning Com.), disapproved on another point in Bay Development Ltd. v. Superior Court (1990) 50 Cal. 3d 1012, 1032, fn. 12 269 Cal. Rptr. 720, 791 P.2d 290.)
"In the indemnity action, however, the plaintiff occupies no different position than any other plaintiff seeking to recover damages proximately caused by the defendant.
As to attorney fees in the present action, plaintiff . . . is subject to the general rule of Code of Civil Procedure section 1021 that the parties bear their own fees except as provided by specific statute or express or implied agreement." (Bear Creek Planning Com., supra, at p. 1246.)