Solano Concrete Co. v. Lund Construction Co.

In a wrongful death action, defendant Solano Concrete Company, Inc. (hereinafter “Solano”), filed a cross-complaint requesting a declaration of its asserted right to indemnity from the decedent’s employer, Lund Construction Company (hereinafter “Lund”). The court sustained a demurrer to the cross-complaint without leave to amend on the theory that under Labor Code section 3864 there was no written agreement to indemnify executed prior to the death and that Lund had not waived the benefit of section 3864 by executing a written agreement (hereinafter the “subcontract”) with Solano after the death. Judgment of dismissal was entered, and Solano appealed.

The cross-complaint alleges that on June 30, 1973, a subcontract was prepared, but not signed, between Solano as general contractor and Lund as subcontractor. Lund was to furnish all labor and materials to construct the sanitary sewers, storm sewers, and water system for a subdivision known as Fairmont # 13. Lund was also to indemnify and hold Solano harmless from any and all liability, claims, and damages caused or claimed to be caused by the independent or concurrent negligence of Solano and Lund.

The work commenced on…