Just as an indemnitee is not limited by a claimant’s proof in the underlying action, so too the indemnitee is not limited by the claimant’s pleadings in the underlying action in seeking indemnity under an express contractual indemnity clause. Here, employees of the indemnitor sued the indemnitee for injuries sustained on a construction job. The employees’ complaint naturally alleged negligence only by the indemnitee since the indemnitee’s liability for the employees’ non-economic damages was reduced to the extent their injuries were caused by their employer/indemnitor’s negligence. The indemnitee’s right to indemnity cannot be limited by the employees’ self-interested allegations, even if their allegations might determine their employer’s duty to defend under the indemnity agreement. Nor did the fact that the indemnitee could assert an offset for workers comp. benefits the employer/indemnitor paid preclude the right to indemnity since economic damages (for which the indemnitee would be 100% liable if only 1% at fault) could easily exceed the offset.
California Court of Appeal, First District, Division 5 (Simons, Acting P.J.); August 16, 2016; 2016 WL 4379322