Low, Ball & Lynch’s
WEEKLY LAW RESUME
November
24, 2005 Issue By: Mark
Hazelwood
Contracts – Indemnity Agreement
McCrary Construction Co. v. Metal
Deck Specialists, Inc.
Court of Appeal, First District
(November 14, 2025)
The rules regarding indemnity agreement interpretation have evolved over the
years. This case concerns whether an actively negligent contractor was
entitled to indemnity under the terms of an indemnity agreement with a
subcontractor.
Frederick Kimbark died after falling through a hole in a metal roof at a construction
site where he was working as a carpenter. McCrary Construction Company
was the general contractor on the project, and Metal Deck Specialists, Inc. was
the subcontractor responsible for furnishing and installing the metal deck
system on the roof. Horizon Sheet Metal, Inc. was a subcontractor, and
was responsible for installing the heating, ventilation, and air conditioning
units as well as performing miscellaneous sheet metal work. Metal Deck
Specialists’ employees cut the hole in the roof through which Kimbark fell, and
left the site without covering it. A Horizon employee covered the hole at
the request of McCrary, but did not secure the covering. Mr. Kimbark fell
when he lifted the covering and stepped forward, not realizing the plywood had
covered a hole.
At trial, a jury concluded that Metal Deck Specialists, Inc., McCrary
Construction Company, Horizon Sheet Metal, Inc., and Frederick Kimbark were all
negligent, but concluded that Horizon’s negligence did not proximately cause
the death. McCrary Construction Company satisfied its portion of the
judgment. Metal Deck Specialists, Inc. appealed. A Court of Appeal
affirmed the judgment as to Metal Deck Specialists, Inc.
McCrary Construction Company sought indemnity under a written indemnity
agreement. The contract with Metal Deck Specialists, Inc. and Horizon
Sheet Metal, Inc. provided for indemnity arising out of any act or omission of
the subcontractor. The Court found that McCrary’s negligence was
active. It found that Horizon was not obligated to indemnify McCrary
Construction Company, and that Metal Deck Specialists, Inc. was obligated
because indemnity was provided, even though McCrary was actively
negligent.
The Court of Appeal reversed as to Metal Deck Specialists, Inc., and affirmed
as to Horizon Sheet Metal, Inc. The Court found that McCrary Construction
Company was not entitled to be indemnified by Metal Deck Specialists,
Inc. The Court described the indemnification agreement between
McCrary and Metal Deck as a general indemnity clause. Such a clause
provides indemnity for a loss resulting from passive negligence, but does not
provide indemnity for active negligence. The Court found no reason to
deviate from those rules. In this case, both Metal Deck Specialists, Inc.
and McCrary Construction Company were actively engaged in the construction of
the roof. Both had duties to provide for safety on the site. The
language of the indemnity agreement did not purport to require indemnity from
Metal Deck Specialists, Inc. for McCrary’s own negligence, and the Court found
no factual evidence to support a conclusion that the parties intended to
provide indemnity under these circumstances. The Court therefore found no
reason to depart from the general rule that an actively negligent indemnitee
cannot recover under a general indemnity contract.
As to Horizon Sheet Metal, Inc., the Court of Appeal found no reason to
reverse the trial court finding that McCrary Construction Company was not
entitled to indemnity. Horizon Sheet Metal, Inc. was performing work
outside the scope of its subcontract at the request of McCrary Construction
Company. There was no showing that the contractual language required
Horizon Sheet Metal, Inc. to indemnify McCrary Construction Company for McCrary’s
own negligence. The Court therefore affirmed the judgment as to Horizon
Sheet Metal, Inc.
COMMENT
This case discusses all of the cases that have developed the rules regarding
indemnity agreements. It thus provides a good summary of the law in this
regard.
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