Case Number: YC068685 Hearing Date: May 15, 2014 Dept: 91

The Motion by Cross-Complainant, Hollywood Park Racing Association, LLC for Summary Adjudication [against Cross-Defendant, ThyssenKrupp Elevator Corporation], filed on 1/23/14, is GRANTED. Cross-Complainant has met its burden of showing it is entitled to an immediate duty to defend based on the undisputed material facts proffered. Cal Code Civ Procedure § 437c(p)(2).

The issue of ThyssenKrupp Elevator Corporation (“TKE”) owed a duty to defend is an issue that can be summarily adjudicated. CCP § 437c(f)(1).

TKE’s objections #1 -6, #8 are overruled.
Objection #7 is sustained as Mr. Wyatt’s opinion on the legal effect of the agreements at issue and whether all documents constitute an agreement between the parties is a legal conclusion.

There is no material dispute that TKE and Churchill Downs entered into a 2004 Maintenance Agreement that called for TKE to provided maintenance of Hollywood Park escalators. UF 2-3. The language of the indemnity clause is not in dispute. UF 4.

TKE has not created a triable issue by arguing that Hollywood Park is not a party to the original 2004 Maintenance Agreement. TKE also proffers the Maintenance Agreement Addendum signed on 6/16/10 by Eual Wyatt as General Manager. That 2010 addendum expressly incorporates the original 2004 contract between Churchill Downs and TKE, the 2007 Addendum Extension and the 2008 Amendment Letter.

There is no dispute that the original indemnity provision obligated TKE to defend, among other things, against all claims and suits “to the extent arising out of willful or negligent acts or omissions of TK.” UF 4. Contrary to TKE’s argument, demonstrates its entitlement to the indemnity provision as Hollywood Park signed the 2010 Addendum incorporating existing agreements originally made between TK and Churchill Downs.

TKE’s construction of the scope of the indemnity provision is not supported.TKE highlights language in the indemnity provision that it argues limits the duty to defend [“… to the extent arising out of willful or negligent acts or omissions of Company [TKE].” TKE construes this to mean that the duty to defend operates prospectively, that it is not triggered until there has been a finding that Plaintiff’s injuries arose out of willful or negligent acts or omissions of TKE. TKE does not cite any authority for this construction. This argument is contrary to Civ Code § 2778, which triggers the duty to defend actions “on request of the person indemnified.”

“4. The person indemnifying is bound, on request of the person indemnified, to defend actions or proceedings brought against the latter in respect to the matters embraced by the indemnity, but the person indemnified has the right to conduct such defenses, if he chooses to do so;” Cal Civ Code § 2778

The duty is arises at the request of the indemnitee.

“However, as we have explained, the duty to defend upon the indemnitee’s request, as set forth in subdivision 4 of section 2778, is distinct from, and broader than, the duty expressed in subdivision 3 of the statute to reimburse an indemnitee’s defense costs as part of any indemnity otherwise owed.” Crawford v. Weather Shield Mfg., Inc., 44 Cal. 4th 541, 564 (Cal. 2008).

Crawford v. Weather Shield Mfg., Inc., 44 Cal. 4th 541, 564-567 (Cal. 2008), cited by Hollywood Park’s is instructive. The duty to defend is immediate, not prospective. TKE’s argument was rejected by the CA Supreme Court which reversed the court of appeal on the same issue. The duty to defend arises upon request because the language of the provision imposed an obligation to defend “against suits raising claims” that fell within the scope of the provision. Crawford v. Weather Shield Mfg., Inc., 44 Cal. 4th 541, 564-567 (Cal. 2008) . The indemnity provision here also imposed a duty to defend “any and all claims, demands, losses, damages, causes of action, suits, and liabilities of every kind.” Hollywood Park’s Ex. A.

Plaintiff’s complaint falls within the scope of the indemnity provision as Plaintiff alleges negligence against TKE among others. UF 1, Hollywood Park’s Ex. A.

As there is no material dispute as to what the provision states, or that Hollywood Park adopted the terms and conditions of the original maintenance agreement by virtue of its 2010 Addendum, the motion is GRANTED.