Marin Storage & Trucking, Inc. v. Benco Contracting & Engineering, Inc.

In this action for indemnification, the trial court found the indemnification clause in the parties’ contract to be unenforceable because there was no mutual consent of the parties and because the clause was “procedurally” unconscionable. We reverse the judgment.

Facts

The Agreement

Marin Storage & Trucking, Inc., doing business as Reliable Crane & Rigging (hereafter Reliable), is in the business of providing cranes for rendering hoisting and rigging services. Since at least 1985, Reliable has been doing business with Benco Contracting and Engineering, Inc. (hereafter Benco), entering into short-term hourly crane rental agreements.

Pursuant to their prior pattern of dealings, Benco arranged by telephone to have Reliable provide a crane and a crane operator on August 15 and 16, 1996, for an hourly rate. Benco was the general contractor on a freeway overpass construction project in Oakland, and the crane was to be provided at the construction site for the purpose of hoisting rebar and I-beams.

The standard procedure consistently used by the parties during their long business relationship, and followed on the day in question, was to have Reliable’s crane operator fill…