Colich & Sons v. Pacific Bell

This is an appeal by Colich & Sons et. al (Colich) from the dismissal of a cross-complaint against Pacific Bell (Pac Bell) for indemnity, comparative contribution and declaratory relief following the sustaining of a demurrer without leave to amend.

We hold that a defendant, such as Colich, consistent with the policy that limitation of liability provisions in a tariff are binding on the public generally, is barred from seeking equitable indemnity for ordinary negligence from a concurrently negligent telephone utility, even though the defendant is not a customer of the telephone utility but instead is a stranger. Nonetheless, we shall reverse the judgment in the instant case, because Colich may be able to amend its cross-complaint to seek recovery up to the allowed $10,000 on the ground of gross negligence, one of the express exceptions to the tariff.

On June 25, 1984, while excavating under a public intersection in El Segundo, Colich, the excavation subcontractor, allegedly struck and damaged Pac Bell’s underground telephone cable resulting in an interruption of service to some Pac Bell customers, including United Air Lines (UAL). UAL sued Colich on negligence grounds…