I. Introduction

Metal Deck Specialists, Inc. (Metal Deck) appeals from a judgment requiring it to indemnify McCrary Construction Company (McCrary) for a judgment paid by McCrary after a jury trial in a wrongful death action arising from a construction site accident. Metal Deck contends the trial court erred in ordering full indemnity rather than indemnity based on the proportion of fault the jury attributed to Metal Deck. McCrary cross-appeals against Horizon Sheet Metal, Inc. (Horizon), which the trial court found did not owe McCrary indemnity. We reverse the judgment against Metal Deck, and affirm as to Horizon.


II. Statement of the Case and Facts


Frederick Kimbark died after falling through a hole in a metal roof at a construction site where he was working as a carpenter. McCrary was the general contractor on the project; Metal Deck was a subcontractor, responsible for furnishing and installing the metal deck system on the roof; Horizon was another subcontractor, responsible for installing heating, ventilation and air conditioning units and performing miscellaneous sheet metal work. Metal Deck's employees cut the hole through which Kimbark subsequently fell, but left the work site without covering it. A Horizon employee, Plummer, covered the hole in question at the request of McCrary's superintendent, Mark Nelson, but did not secure the covering. Kimbark fell through the hole when he lifted the plywood covering it and stepped forward, not realizing the plywood had been covering a hole. Among many disputed issues at trial were whether Metal Deck had a duty to cover the holes it cut or properly left that task to McCrary, and whether McCrary agreed to assume responsibility for covering the holes or was forced to do so by Metal Deck's refusal.

At the wrongful death trial, the jury concluded that Metal Deck, McCrary, Horizon and Kimbark himself were all negligent with respect to the accident. The jury apportioned fault 45 percent to McCrary, 30 percent to Metal Deck, and 25 percent to Kimbark. It found that Horizon's negligence did not cause Kimbark injury. McCrary satisfied its portion of the judgment with a payment of $535,194, which it described as representing its stated percentage of responsibility under the jury's verdict plus costs and interest. Metal Deck appealed the judgment.

In Kimbark v. McCrary, A097402, filed November 20, 2003, this court affirmed the $1,171,800 judgment, rejecting Metal Deck's arguments that it owed no duty to Kimbark or properly discharged its duty. We noted that although Metal Deck's subcontract with McCrary did not expressly require it to cover the holes it cut in the roof, the contract did expressly require Metal Deck to comply with applicable safety laws, rules and regulations, one of which specifically required secured and marked covers for floor, roof and skylight openings. We also held that Metal Deck had a duty to cover the holes under Rowland v. Christian (1968) 69 Cal.2d 108, 112, and that substantial evidence supported the jury's conclusion that Metal Deck did not properly discharge its duty. Metal Deck represents in this court that it has since satisfied the remainder of the wrongful death judgment, paying its 30 percent share plus interest.

While Metal Deck's appeal in the wrongful death action was pending, the trial court heard McCrary's previously bifurcated cross-complaint for breach of contract and indemnity. McCrary's first amended cross-complaint sought full indemnity under causes of action for breach of contract and express contractual indemnity, and comparative equitable indemnity under a cause of action for implied and equitable indemnity. Metal Deck's answer raised affirmative defenses, asserting that it was not liable for any indemnity as well as that, under the doctrine of comparative indemnity, McCrary should be barred from recovery of damages directly attributable to its proportionate share of fault. Horizon raised affirmative defenses, asserting the cross-complaint was barred for reasons including McCrary's comparative fault and denying its own liability for any damages.

The indemnity provision in Metal Deck's and Horizon's subcontracts with McCrary provided: â€