Carr Business Enterprises, Inc. v. City of Chowchilla

In Carr Business Enterprises, Inc. v. City of Chowchilla (2008) 166 Cal.App.4th 14, a city entered into two separate contracts with a contractor to do: (1) street improvements and; (2) airport improvements. (166 Cal.App.4th at p. 17.) Both contracts contained the same relevant provisions. Under the heading "Hold Harmless and Indemnification Agreement," the first provision read: "The contractor shall indemnify and hold harmless the city . . . and its officers, officials, employees, agents of the above from and against all claims, damages, losses and expenses including attorney fees arising out of the performance of the work described herein, caused in whole or in part by any negligent act or omission of the contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, except where caused by the active negligence, sole negligence, or willful misconduct of the city." (Id. at p. 19) Under the heading "Indemnity Agreement," the second provision read: "The contractor agrees to indemnify and save harmless the city . . . their agents and employees, for and against all loss or expense (including costs and attorney fees) on account of injury or death of persons employed by the contractor, or his subcontractors, his or their agents or employees; injury to or death of any other person; or injury to, damage or destruction of property, real or personal, including loss of use thereof. Upon demand, the contractor shall defend any suits or actions covered by the terms of this agreement." (Id. at pp. 19-20.) The court in Carr observed that, "at first glance" the italicized language in the first provision seemed to extend beyond third party claims, but after surveying the relevant authorities, concluded that it did not. The court reasoned that the language more closely paralleled that in the Campbell line of cases than that in the Baldwin line. (Id. at p. 23.)