Jimenez

Statement of the Case

Gregorio Jimenez was killed, and Virgil Sinclair was injured, while working for respondent, Batchelor Construction Company, Inc. (Batchelor), when a trench wall collapsed. The heirs of Gregorio Jimenez filed a complaint for wrongful death against appellant, Pacific Western Construction Company, Inc. (Pacific). Virgil Sinclair also filed a complaint for personal injuries against Pacific.

Pacific answered the complaints and filed cross-complaints for express indemnity against Batchelor. The cross-complaints incorporated the language of a contract between Pacific and Batchelor which provided for a general right of indemnity in favor of Pacific. The contract also provided for payment of reasonable costs and attorney’s fees to Pacific should suit be filed to enforce the contract and should Batchelor be found at fault.

Batchelor then filed a cross-complaint against Pacific in each action seeking indemnity from Pacific for costs of suit and attorney’s fees and alleging that Pacific was actively negligent and therefore barred from any recovery from Batchelor.

By stipulation and order of the court, the complaints and cross-complaints were consolidated for…