“The elements of a cause of action for indemnity are
(1) a showing of fault on the part of the indemnitor and
(2) resulting damages to the indemnitee for which the indemnitor is contractually or equitably responsible.”
Expressions at Rancho Niguel Assn. v. Ahmanson Developments, Inc., 86 Cal. App. 4th 1135, 1139 (2001); see Cal. Civ. Code § 1432 (“Except as provided in Section 877 of the Code of Civil Procedure [relating to release, dismissal, or covenant not to sue or enforce judgment], a party to a joint, or joint and several obligation, who satisfies more than his share of the claim against all, may require a proportionate contribution from all the parties joined with him.”) & Chapter __ herein (Contribution).
But see Continental Heller Corp. v. Amtech Mechanical Services, Inc., 53 Cal. App. 4th 500, 505 (1997) (suggesting that the term “fault” is a misnomer as “courts will enforce indemnity agreements even for losses caused by acts over which the indemnitor had no control”).
“[I]ndemnity refers to ‘the obligation resting on one party to make good a loss or damage another party has incurred.’” Prince v. Pac. Gas & Elec. Co., 45 Cal. 4th 1151, 1157 (2009).
Under California law “there are only two basic types of indemnity: express indemnity and equitable indemnity.” Prince v. Pac. Gas & Elec. Co., 45 Cal. 4th 1151, 1157 (2009) (holding that “implied contractual indemnity” is a form of equitable indemnity).
“Express indemnity refers to an obligation that arises ‘“by virtue of express contractual language establishing a duty in one party to save another harmless upon the occurrence of specified circumstances.”’” Prince v. Pac. Gas & Elec. Co., 45 Cal. 4th 1151, 1158 (2009).
“[T]raditional equitable indemnity requires no contractual relationship between an indemnitor and an indemnitee. Such indemnity ‘is premised on a joint legal obligation to another for damages,’ but it ‘does not invariably follow fault.’” Prince v. Pac. Gas & Elec. Co., 45 Cal. 4th 1151, 1158 (2009).
CALIFORNIA STATE COURTS
Supreme Court of California: Prince v. Pac. Gas & Elec. Co., 45 Cal. 4th 1151, 1157-59 (2009).
California 1st Dist.: Bailey v. Safeway, Inc., 199 Cal. App. 4th 206, 217 (2011).
California 2d Dist.: Continental Heller Corp. v. Amtech Mechanical Services, Inc., 53 Cal. App. 4th 500, 505 (1997) (discussing contractual indemnity).
California 3d Dist.: Bush v. Superior Court, 10 Cal. App. 4th 1374, 1380 (1992).
California 4th Dist.: Great W. Drywall, Inc. v. Interstate Fire & Cas. Co., 161 Cal. App. 4th 1033, 1041 (2008).
California 5th Dist.: None.
California 6th Dist.: None.
CALIFORNIA FEDERAL COURTS
United States Court of Appeal for the 9th Circuit: Nikko Materials USA, Inc. v. Navcom Def. Elecs., Inc., 291 Fed. Appx. 67, 69 (9th Cir. 2008).
Central District: Crusader Ins. Co. v. Cingular Wireless, LLC, No. CV 09-2141 GAF (PLAx), 2011 U.S. Dist. LEXIS 2330, at *10 (C.D. Cal. Jan. 10, 2011).
Eastern District: Allied Prop. & Cas. Ins. Co. v. Dick Harris, Inc., No. CIV. 2:13-00325 WBS DAD, 2013 U.S. Dist. LEXIS 69395, at *20-21 (E.D. Cal. May 14, 2013).
Northern District: Georgia-Pacific v. Officemax Inc., No. 12-cv-02797-WHO, 2013 U.S. Dist. LEXIS 133657, at *41-42 (N.D. Cal. Sept. 18, 2013).
Southern District: Harmsen v. Smith, Nos. 73-460-E; 74-345-E, 1975 U.S. Dist. LEXIS 11257, at *4-5 (S.D. Cal. July 28, 1975).