Indemnity in California

Title 12 of Part 4 of Division 3 of the Civil Code deals with indemnity. Section 2772 explains that indemnity is a contract by which one engages to save another from a legal consequence of the conduct of one of the parties, or of some other person.

Section 2773.1 states that an agreement to indemnify a person against an act thereafter to be done, is void, if the act be known by such person at the time of doing it to be unlawful.

Section 2774 says that an agreement to indemnify a person against an act already done, is valid, even though the act was known to be wrongful, unless it was a felony.

Section 2775 specifies that an agreement to indemnify against the acts of a certain person, applies not only to his acts and their consequences, but also to those of his agents.

Section 2776 says that an agreement to indemnify several persons applies to each, unless a contrary intention appears.

Section 2777 explains that one who indemnifies another against an act to be done by the latter, is liable jointly with the person indemnified, and separately, to every person injured by such act.

Section 2778 sets forth seven rule for the interpretation of a contract of indemnity, unless a contrary intention appears.

Section 2779 says that where one, at the request of another, engages to answer in damages, whether liquidated or unliquidated, for any violation of duty on the part of the latter, he is entitled to be reimbursed in the same manner as a surety, for whatever he may pay.

Section 2782 explains that, with specified exceptions, provisions, clauses, covenants, or agreements contained in, collateral to, or affecting any construction contract and that purport to indemnify the promisee against liability for damages for death or bodily injury to persons, injury to property, or any other loss, damage or expense arising from the sole negligence or willful misconduct of the promisee or the promisee’s agents, servants, or independent contractors who are directly responsible to the promisee, or for defects in design furnished by those persons, are against public policy and are void and unenforceable.

Section 2782.05 states that provisions, clauses, covenants, and agreements contained in, collateral to, or affecting any construction contract and amendments thereto entered into on or after January 1, 2013, that purport to insure or indemnify, including the cost to defend, a general contractor, construction manager, or other subcontractor, by a subcontractor against liability for claims of death or bodily injury to persons, injury to property, or any other loss, damage, or expense are void and unenforceable.

The terms “construction manager,” “general contractor,” and “subcontractor” are defined. A general contractor, construction manager, or subcontractor has the right to seek equitable indemnity for any claim governed by this section.

Nothing in this section limits, restricts, or prohibits the right of a general contractor, construction manager, or subcontractor to seek equitable indemnity against any supplier, design professional, product manufacturer, or other independent contractor or subcontractor.

Section 2782.1 states that nothing prevents a contractor responsible for the performance of a construction contract from indemnifying fully a person, firm, corporation, state or other agency for whose account the construction contract is not being performed but who, as an accommodation, enters into an agreement with the contractor permitting such contractor to enter upon or adjacent to its property for the purpose of performing such construction contract for others.

Section 2782.2 specifies that nothing prevents an agreement to indemnify a professional engineer against liability for the negligence of the engineer, or the engineer’s agents or employees, in providing inspection services to plants or other facilities if all the five specified criteria are satisfied. However, this does not authorize contracts for indemnification of liability arising from willful misconduct.

Section 2782.5 explains that nothing prevents a party to a construction contract and the owner or other party for whose account the construction contract is being performed from negotiating and expressly agreeing with respect to the allocation, release, liquidation, exclusion, or limitation as between the parties of any liability for design defects, or of the promisee to the promisor arising out of or relating to the construction contract.

Section 2782.6 states that nothing prevents an agreement to indemnify a professional engineer or geologist or the agents, servants, independent contractors, subsidiaries, or employees of that engineer or geologist from liability in providing hazardous materials identification, evaluation, preliminary assessment, design, remediation services, or other services if all of the specified criteria are satisfied. The term “hazardous materials” is defined.

Section 2782.8 specifies that for all contracts for design professional services, all provisions, clauses, covenants, and agreements contained in, collateral to, or affecting any such contract, and amendments thereto, that purport to indemnify, including the duty and the cost to defend, the indemnitee by a design professional against liability for claims against the indemnitee, are unenforceable, except to the extent that the claims against the indemnitee arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the design professional. The term “design professional” is defined.

Section 2782.9 states that all contracts, provisions, clauses, amendments, or agreements for a residential construction project on which a wrap-up insurance policy, or other consolidated insurance program, is applicable, that require an enrolled and participating subcontractor or other participant to indemnify, hold harmless, or defend another for any claim or action covered by that program, arising out of that project are unenforceable.

Section 2782.95 specifies that, for any wrap-up insurance policy or other consolidated insurance program that insures a private residential work of improvement that first commences construction after January 1, 2009, the specified rules apply.

Section 2782.96 states that, if an owner, builder, or general contractor obtains a wrap-up insurance policy or other consolidated insurance program for a public work or any other project other than residential construction, the specified rules apply.

Section 2783 defined the term “construction contract.”

Section 2784 defines the term “design defect.”

Section 2784.5 explains that any provision, promise, agreement, clause, or covenant contained in, collateral to, or affecting any hauling, trucking, or cartage contract or agreement is against public policy, void and unenforceable if it purports to indemnify the promisee against liability for any of the following damages which are caused by the sole negligence or willful misconduct of the promisee, agents, servants, or the independent contractors directly responsible to the promisee, except when the agents, servants, or independent contractors are under the direct supervision and control of the promisor, the.