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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