Opinion
C096486
11-28-2023
FLATIRON WEST, INC., Cross-complainant and Appellant, v. RMA GROUP, Cross-defendant and Respondent.
NOT TO BE PUBLISHED
Super. Ct. No. 34-2018-00230936-CU-PO-GDS
DUARTE, J.
Cross-complainant and appellant Flatiron West, Inc. (Flatiron) and crossdefendant and respondent RMA Group (RMA) entered into a subcontract wherein RMA agreed to provide quality inspection services for a project for which Flatiron was the general contractor. The subcontract included a defense and indemnity provision requiring RMA to indemnify and defend Flatiron from claims under certain circumstances.
RMA's employee Dean Robbins was injured at the project site. He sued Flatiron, among others, alleging claims against it for negligence and respondeat superior. Pursuant to the subcontract, Flatiron tendered the defense of Robbins's claims to RMA, but RMA denied the tender. Flatiron sued RMA for breach of contract, express indemnity, and declaratory relief. Both parties moved for summary judgment; the trial court granted RMA's motion and denied Flatiron's as moot.
Flatiron appeals. It contends there are disputed issues of material fact as to the applicability of the subcontract's indemnity provision, and that RMA had the duty to defend it against Robbins's claims irrespective of the applicability of the indemnity provision. We disagree and affirm.
FACTS AND PROCEEDINGS
The Subcontract
Flatiron was the general contractor of the EchoWater Nitrifying Sidestream Treatment Project (the project), which was owned by the Sacramento Regional County Sanitation District. In May 2016, Flatiron and RMA entered into a subcontract in which RMA agreed to provide inspection services for the project, defined in the subcontract as "services for Quality Control." The subcontract included the following indemnity provision: "Service Contractor [RMA] shall indemnify, defend and hold Contractor [Flatiron] harmless from and against any and all liabilities, losses, damages, expenses (including attorneys' fees, court costs, and other expenses of litigation), claims, penalties or fines (collectively referred to as 'Claims')[,] damages of property including loss of use thereof, injuries to persons, including death, on account of Service Contractor's, or any of its . . . employees . . ., negligent acts or omissions in the performance of this Agreement." (Italics added.)
The subcontract's cover page included special terms and conditions regarding "general charges," specifying that "[i]nspection charges start at the scheduled show up time at the job site." The "general charges" provision continued: "All inspection hours will be billed in the following increments: [¶] There will be a minimum two (2) hour charge for any Subcontractor employee presence on site. [¶] Any time less than four (4) hours of work will be billed as six (4) [sic] hours. [¶] Four (4) to eight (8) hours will be billed as eight (8) hours." (Bullet points omitted.) In its "standard contract for services terms and conditions" that was attached to the subcontract, Flatiron agreed "to pay the Service Contractor [RMA] for the performance of Services as described in the Cover Page of this Agreement."
The subcontract did not define the term "job site," but the "Project Address" was listed as "Intersection of Dwight Road &Sims Road[¶] 8541 Sims Road[¶] Elk Grove, CA 95758."
Robbins's Injury
Robbins was employed by RMA as a welding inspector. On May 8, 2017, he was scheduled to inspect welding at the project site. He arrived at the project site, reported to Flatiron's office, and checked in with Flatiron personnel. He left the office and drove his truck toward the area where he was directed to perform his inspection. However, a truck owned by A Teichert &Son Inc. (Teichert), another subcontractor working at the project site, was parked in the middle of the road, preventing Robbins from driving to the inspection site. Robbins parked his truck and walked through the area where Teichert was excavating toward the inspection site. On the way, he stepped into an uncovered hole and sprained his ankle.
Robbins completed an incident report with a Flatiron representative. The report stated as follows: "RMA welding inspector was crossing through Teicherts [sic] job site to get to our job site where he would be working when he stepped into a hole with his left leg that was just uncovered by a Teichert employee and sprained his right ankle."
Robbins acknowledged that he had toured the area where Teichert was excavating three days before the accident, knew the area was an active construction site with mounds and berms of dirt, knew there were holes throughout the area because it was an active job site and "[e]verywhere is a place that could be excavated," saw warning flags, cones, and boards with "Hole" written on them, and knew to be cautious around boards labeled "hole." Robbins testified that he walked around two boards labeled "Hole," and was looking at a third board labeled "Hole" when he stepped into a hole he did not see. It was daybreak at the time of his injury, and although "the sun wasn't all the way up," he could see.
Robbins received workers' compensation benefits through RMA's workers' compensation carrier for the injuries he sustained.
Robbins's Complaint
In April 2018, Robbins filed a lawsuit for personal injuries, naming the County of Sacramento, Sacramento Regional Sanitation District, Flatiron, and Teichert as defendants, but not RMA. As against Flatiron, the complaint alleged causes of action for negligence/dangerous condition of property, negligence per se, and respondeat superior. The complaint did not allege that RMA contributed to the accident or that the accident occurred in a location controlled by RMA or mention Robbins's employment with RMA.
Pursuant to the indemnity provision in the subcontract, Flatiron tendered its defense to RMA's insurer, Travelers. In January 2019, Travelers denied the tender because the hole into which Robbins fell was created by another subcontractor, and the injury occurred before Robbins began working.
Flatiron's Cross-Complaint
Flatiron filed a cross-complaint against RMA for breach of contract, express indemnity, and declaratory relief. It alleged that Robbins's claimed damages arose out of the work performed, materials furnished, or services provided by RMA or its employees pursuant to the subcontract. The first cause of action for breach of contract alleged that RMA breached the subcontract by failing to defend, indemnify, and hold Flatiron harmless for Robbins's claims against it because Robbins's complaint alleged he was injured as a result of RMA's performance. The second cause of action asserted that the subcontract obligated RMA to defend Flatiron against Robbins's claims and to indemnify it from any costs, expenses, fees, or judgments incurred related to those claims. The third cause of action for declaratory relief sought a declaration of the parties' rights and obligations under the subcontract.
RMA's Motion for Summary Judgment
Both Flatiron and RMA moved for summary judgment on the cross-complaint.RMA's motion argued the subcontract's indemnity provision did not apply because the undisputed facts showed that Robbins was injured before he began his work, and thus not in the performance of the subcontract, Robbins's complaint did not allege any negligent act or omission of RMA, and Robbins was injured due to the negligent acts or omissions of Flatiron and/or Teichert.
As we will discuss, post, the trial court granted RMA's motion and denied Flatiron's as moot. Therefore, we focus on RMA's motion.
Flatiron opposed RMA's motion for summary judgment. It argued that RMA was required to indemnify and defend it against Robbins's claims because Robbins's injuries were caused by RMA's and Robbins's negligent acts or omissions, pointing to the undisputed facts that RMA failed to comply with its contractual obligation to require Robbins to participate in drug testing, safety training, or orientation, and that despite his experience and knowledge regarding excavation sites and boards labeled "hole," Robbins was not looking where he was going when he stepped into the hole. Flatiron acknowledged that Robbins had not asserted a negligent act or omission of RMA, but argued Robbins was prohibited from doing so because, as an RMA employee, his sole remedy against RMA was a workers' compensation claim. Flatiron also contended that Robbins's injury occurred during the performance of the subcontract because, at the time of the injury, Robbins was scheduled to work, had arrived at the project site, had checked in with Flatiron personnel, was at the project site only to perform work under the subcontract, and would not have been at the site if not for the subcontract. It further argued that Robbins had successfully obtained workers' compensation benefits, which were available to him only if his injury had arisen out of and had been in the course of his employment. Finally, Flatiron asserted that RMA's duty to defend arose at the time Robbins's claims were asserted against it, even if those claims were ultimately unsuccessful.
RMA argued in reply that whether Robbins was on site for the purpose of performing work under the subcontract was irrelevant because the subcontract did not require it to defend and indemnify Flatiron "upon the mere presence of an [RMA] employee at the project site." Instead, because Robbins was injured on his way to perform inspection work, and did not actually perform any inspection tasks, Robbins was not injured in the performance of the subcontract. Accordingly, it argued, even if it or Robbins had been negligent (which it did not concede), there was no dispute of material fact because that negligence was not in the performance of the subcontract, and thus did not trigger the subcontract's defense and indemnity provision.
Trial Court Ruling
Following a hearing, the trial court affirmed its tentative ruling granting RMA's motion and denying Flatiron's motion as moot. Turning first to the duty to indemnify, the court set out the undisputed facts that Robbins was scheduled to work at the project site, checked in with Flatiron personnel, began driving his truck to the inspection site until his progress was impeded by the Teichert truck, had to get out of his truck and began walking to the inspection site on foot, and stepped into an uncovered hole while walking through the Teichert job site. The court then quoted the incident report we quoted ante. Based on those undisputed facts, the court concluded that RMA had satisfied its burden to demonstrate that no triable issue of fact existed, thus shifting the burden to Flatiron to demonstrate a triable issue of fact.
The trial court noted the parties' agreement that the indemnity provision applied only when the injury occurred "in the performance of this Agreement," and it concluded that the injury did not occur in the performance of the agreement because Robbins was not performing a welding inspection at the time he was injured. It further concluded that no triable issue of fact was created by Robbins's receipt of workers' compensation benefits. The trial court did not consider Flatiron's arguments with respect to RMA's or Robbins's negligence.
Regarding the duty to defend, the trial court observed that RMA's duty to defend arose if Robbins's action was a" 'matter embraced by the indemnity,'" quoting Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541 (Crawford). Recognizing that Robbins's complaint "does not assert any negligence by RMA and does not name RMA as a defendant," and reiterating that Robbins was not injured in the performance of the subcontract, it concluded that Robbins's action was not a" 'matter embraced by the indemnity'" that would give rise to a duty to defend.
Judgment on the order granting RMA's motion for summary judgment was entered. Flatiron timely appealed the judgment. The case was fully briefed and assigned to the current panel in August 2023.
DISCUSSION
I
Standard of Review
"The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) A moving party meets its burden of showing that a cause of action has no merit if it shows that one or more of the elements of the cause of action cannot be established, or that there is a complete defense. (Id., subd. (p)(2).) Once the moving party meets that burden, the burden shifts to the nonmoving party to show the existence of a triable issue of material fact. (Ibid.)
We review the trial court's grant of summary judgment de novo. (State of California v. Allstate Ins. Co. (2009) 45 Cal.4th 1008, 1017-1018.) We consider all the evidence offered in connection with the motion, except that which the trial court properly excluded, and the uncontradicted inferences the evidence reasonably supports. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) In conducting our de novo review, we view the evidence in a light favorable to the nonmoving party, liberally construing its evidentiary submission while strictly scrutinizing the moving party's showing, and resolving any evidentiary doubts or ambiguities in the nonmoving party's favor. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)
In reviewing the grant of summary judgment, we employ the same three-step analysis as the trial court."' "First, we identify the issues raised by the pleadings, since it is these allegations to which the motion must respond; secondly, we determine whether the moving party's showing has established facts which negate the opponent's claims and justify a judgment in movant's favor; when a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue." '" (Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224, 229.)
"On review of a summary judgment, the appellant has the burden of showing error, even if he did not bear the burden in the trial court. [Citation.] 'The fact that we review de novo a grant of summary judgment does not mean that the trial court is a potted plant in that process.' [Citation.] '[D]e novo review does not obligate us to cull the record for the benefit of the appellant in order to attempt to uncover the requisite triable issues. As with an appeal from any judgment, it is the appellant's responsibility to affirmatively demonstrate error and, therefore, to point out the triable issues the appellant claims are present by citation to the record and any supporting authority. In other words, review is limited to issues which have been adequately raised and briefed.'" (Claudio v. Regents of the University of California, supra, 134 Cal.App.4th at p. 230.)
II
Duty to Indemnify
Flatiron contends there are triable issues of material fact regarding whether RMA breached its contractual duty to indemnify. It argues that the trial court failed to consider each of the provisions of the subcontract and therefore misconstrued its meaning, and that there are triable issues of fact as to whether Robbins was injured within the performance of the subcontract. But as we will explain, we agree with the trial court's interpretation of the subcontract, and therefore we reject Flatiron's claim. Accordingly, we need not and do not address Flatiron's additional argument that there are triable issues of fact as to whether Robbins's injury occurred due to his own negligent acts or omissions or due to RMA's.
RMA contends Flatiron abandoned its claim related to the duty to indemnify by failing to raise it in its opening brief. (See Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6 ["Issues not raised in an appellant's brief are deemed waived or abandoned"].) But as we have just summarized, Flatiron argues the trial court erred when it granted RMA's motion for summary judgment regarding its indemnity claim because there is a triable issue of fact as to whether Robbins was acting within the performance of the subcontract, and whether Robbins's injuries were caused by his or RMA's negligent acts or omissions. Flatiron did not abandon its indemnity claim.
A. Applicable Law
"Indemnity is a contract by which one engages to save another from a legal consequence of the conduct of one of the parties, or of some other person." (Civ. Code, § 2772.)" '[T]he question whether an indemnity agreement covers a given case turns primarily on contractual interpretation, and it is the intent of the parties as expressed in the agreement that should control. When the parties knowingly bargain for the protection at issue, the protection should be afforded. This requires an inquiry into the circumstances of the damage or injury and the language of the contract; of necessity, each case will turn on its own facts.'" (St. Paul Fire &Marine Ins. Co. v. American Dynasty Surplus Lines Ins. Co. (2002) 101 Cal.App.4th 1038, 1049 (St. Paul); see Myers Building Industries, Ltd. v. Interface Technology, Inc. (1993) 13 Cal.App.4th 949, 968-969 [extent of duty to indemnify is determined from the contract, which is construed under the same rules governing other contracts with a view to determining the actual intent of the parties].)
"California recognizes the objective theory of contracts [citation], under which '[i]t is the objective intent, as evidenced by the words of the contract, rather than the subjective intent of one of the parties, that controls interpretation' [citation]. The parties' undisclosed intent or understanding is irrelevant to contract interpretation." (Founding Members of the Newport Beach Country Club v. Newport Beach Country Club, Inc. (2003) 109 Cal.App.4th 944, 956.)" 'In interpreting an unambiguous contractual provision[,] we are bound to give effect to the plain and ordinary meaning of the language used by the parties.' [Citation.] Thus, where' "contract language is clear and explicit and does not lead to absurd results, we ascertain intent from the written terms and go no further." '" (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2003) 107 Cal.App.4th 516, 524; see Powerine Oil Co., Inc. v. Superior Court (2005) 37 Cal.4th 377, 390 ["' "If contractual language is clear and explicit, it governs"' "]; Crawford, supra, 44 Cal.4th at p. 552 ["Unless the parties have indicated a special meaning, the contract's words are to be understood in their ordinary and popular sense"].) If possible, we must give effect to every provision and word of a contract and avoid an interpretation that renders a word or part of the contract surplusage, inoperative, or meaningless. (In re Tobacco Cases I (2010) 186 Cal.App.4th 42, 49; National City Police Officers' Assn. v. City of National City (2001) 87 Cal.App.4th 1274, 1279; City of Atascadero v. Merrill Lynch, Pierce, Fenner &Smith, Inc. (1998) 68 Cal.App.4th 445, 473.)
The proper interpretation of a contract is a judicial function when, as here, it does not turn upon the credibility of extrinsic evidence. (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 866; Garcia v. Truck Ins. Exchange (1984) 36 Cal.3d 426, 439.)
B. Performance of the Subcontract
In the trial court, Flatiron argued that Robbins's injuries occurred in the performance of the subcontract because he was scheduled to work, had arrived at the project site, had checked in with Flatiron personnel, was only at the project site in order to perform inspections contemplated by the subcontract, and had obtained workers' compensation benefits. Its argument has changed on appeal. For the first time, Flatiron argues that Robbins was acting in "the performance of this Agreement" because the "general charges" provision of the subcontract provided that "[i]nspection charges start at the scheduled show up time at the job site," not when Robbins actually began performing inspections. Accordingly, per Flatiron, "the performance of this Agreement" began at the time Flatiron was required to begin paying inspection charges. Flatiron adds that it would be unfair and unreasonable to conclude that RMA had a right to payment under the subcontract at the time Robbins was injured, but Flatiron did not have a right to defense and indemnification at that time.
At the outset, RMA argues that we should not consider the" 'on the clock' theory" Flatiron raises on appeal because it did not raise that theory in the trial court. Flatiron responds that the" 'on the clock' theory" is simply a slight rephrasing of the argument it raised at the trial court. We agree with RMA that Flatiron's argument on appeal contends for the first time that the scope of the term "performance" in the indemnity provision is affected by another provision of the subcontract, which Flatiron did not reference at all in the summary judgment proceedings in the trial court. However, this lack of reference in the trial court does not mean we are precluded from considering the new argument on appeal.
While we recognize that we are not obliged to consider arguments or theories not advanced by Flatiron in the trial court (DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 676), "[w]e may consider legal issues on appeal not raised before the trial court presented on undisputed facts" (U.S. Bank National Assn. v. Yashouafar (2014) 232 Cal.App.4th 639, 645, fn. 4; see People v. Rosas (2010) 191 Cal.App.4th 107, 115 ["[A]ppellate courts regularly use their discretion to entertain issues not raised at the trial level when those issues involve only questions of law based on undisputed facts" (italics omitted)]; Air Machine Com SRL v. Superior Court (2010) 186 Cal.App.4th 414, 421, fn. 7 ["Although appellate courts ordinarily will not consider a matter raised for the first time on appeal, whether to apply that rule is largely a question of the appellate court's discretion"]; Wisner v. Dignity Health (2022) 85 Cal.App.5th 35, 44-45; Souza v. Westlands Water Dist. (2006) 135 Cal.App.4th 879, 898-899). Here, Flatiron's argument raises a legal question--the proper interpretation of the subcontract--that we review de novo. (St. Paul, supra, 101 Cal.App.4th at p. 1048.) Because there is no extrinsic evidence concerning its interpretation, we are not bound by the trial court's interpretation of the contract. (Department of Forestry &Fire Protection v. Lawrence Livermore National Security, LLC (2015) 239 Cal.App.4th 1060, 1066.)
RMA argues that had Flatiron raised the" 'on the clock' theory" in the trial court, that court could not have properly considered it, because evidence in opposition to a motion for summary judgment must be directed to issues raised by the pleadings (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382), and Flatiron's cross-complaint claimed only that RMA breached the indemnification provision. But Flatiron's argument is that the scope of the indemnification provision is affected by another contractual provision that the court did not consider. In ascertaining the meaning of a contractual provision, courts must consider a contract as a whole and give effect to every provision within it. (See Civ. Code, § 1641; Bear Creek Planning Committee v. Ferwerda (2011) 193 Cal.App.4th 1178, 1183 ["A cardinal principal of document construction is that the document must be 'construed as a whole' so as 'to give effect to every part thereof'"]; Crawford, supra, 44 Cal.4th at p. 558 [rules of contract interpretation apply to contracts for indemnity].) Accordingly, because Flatiron's argument regarding its new theory raises a legal question on undisputed facts, and because its argument regarding the scope of the indemnity provision was directed to issues raised by the pleadings, we will consider Flatiron's argument on appeal, post.
We have set forth the relevant undisputed facts and provisions of the subcontract, ante. In relevant part, the indemnity provision required RMA to indemnify Flatiron for claims existing "on account of [RMA's], or any of its . . . employees . . ., negligent acts or omissions in the performance of this Agreement." Thus, RMA was not required to indemnify Flatiron unless Robbins's claims were (1) on account of RMA's or its employees' negligent acts or omissions, and (2) in the performance of the subcontract.
In interpreting the language of the indemnity provision to ascertain the mutual intent of the parties, we initially observe that the indemnity provision does not include the broad language found in many such clauses. As examples, appellate courts have interpreted indemnity provisions applying where the loss, damage, etc. is "in any way connected with" (Continental Heller Corp. v. Amtech Mechanical Services, Inc. (1997) 53 Cal.App.4th 500, 508), "arising out of" (Carr Business Enterprises, Inc. v. City of Chowchilla (2008) 166 Cal.App.4th 14, 19; St. Paul, supra, 101 Cal.App.4th at p. 1049; Fireman's Fund Insurance Companies v. Atlantic Richfield Company (2001) 94 Cal.App.4th 842, 845-846, 849; Acceptance Ins. Co. v. Syufy Enterprises (1999) 69 Cal.App.4th 321, 328-329), or "resulting in any way from" (Alki Partners, LP v. DB Fund Services, LLC (2016) 4 Cal.App.5th 574, 602) the indemnitor's performance." 'California courts have consistently given a broad interpretation to the terms "arising out of" or "arising from" in various kinds of insurance provisions. It is settled that this language does not import any particular standard of causation or theory of liability into an insurance policy. Rather, it broadly links a factual situation with the event creating liability, and connotes only a minimal causal connection or incidental relationship.'" (Fireman's Fund Insurance Company, at p. 849; see St. Paul, at p. 1050 [these terms are given "consistently broad interpretation" by California courts].)
The indemnity provision at issue here is comparatively narrower. It applies only to losses, damages, claims, etc. "on account of" RMA's or its employees' negligent acts or omissions in the "performance of this Agreement." Black's Law Dictionary defines "performance" as "[t]he successful completion of a contractual duty, [usually] resulting in the performer's release from any past or future liability." (Black's Law Dict. (11th ed. 2019).) Based on that definition and in the absence of any broadening terms, we construe the "performance" of the subcontract to refer to those acts that are directly related to a contractual duty.
This construction of the contract captures the parties' intent in entering into an indemnity provision, which was to require RMA to indemnify Flatiron where the loss, damage, claim, etc. existed due to the negligent act or omission of RMA or its employees while they were performing the tasks they were contracted to perform. The provision requiring that the negligent act or omission must have occurred "in the performance of this Agreement," without any broadening term, can have no other meaning or purpose than to limit the scope of RMA's indemnity to injuries occurring while RMA was performing the tasks it was contracted to perform.
In the trial court, Flatiron argued that Robbins was acting in performance of the subcontract at the time of his injury because he was scheduled to work, had arrived at the job site, had checked in with Flatiron personnel, had begun driving from the Flatiron office to the inspection site, and was traveling to the inspection site on foot at the time of his injury. But under the subcontract as we have construed it, because Robbins was not injured while performing inspection services, which was the task that he/RMA contracted to perform, these acts fall well short of establishing a dispute of material fact. At the time of his injury, Robbins was traversing the job site of another subcontractor, which is not a task RMA contracted to perform. Indeed, it is not disputed that Robbins did not perform any act called for by the subcontract on the date he was injured. While traveling from Flatiron's office to his inspection site might be considered an activity "in any way connected with," "arising out of," or "resulting in any way from" the performance of the subcontract, that is not the contractual provision before us.
As we set forth ante, Flatiron argues for the first time on appeal that we should construe the "performance" of the subcontract in context with the contractual provision requiring Flatiron to begin paying RMA for its inspection services at the "scheduled show up time at the job site." Flatiron contends: "The only way that provision makes sense is if the parties intended for RMA's 'performance of th[is] Agreement' to begin when [Robbins] arrived at the [project site]." We disagree.
First, Flatiron's obligation to pay RMA beginning at the "scheduled show up time at the job site" reflects the scope of Flatiron's performance under the subcontract, not RMA's. Flatiron points us to no contractual provision suggesting that RMA was required to perform under the subcontract at each moment it was being paid by Flatiron. Indeed, the subcontract expressly provides that Flatiron was required to pay RMA during times that RMA employees were not even at the job site. For example, the "general charges" provision, upon which Flatiron relies, also required Flatiron to pay RMA for eight hours of work if an RMA employee only worked five hours on a given day. Flatiron does not suggest, nor, in our view, could it, that RMA was performing under the subcontract at all times Flatiron was required to pay for RMA's services, when the subcontract expressly stated that Flatiron would be required to pay RMA during times no RMA employee was even required to be at the project site.
Rather than tethering RMA's performance of the subcontract to Flatiron's payment schedule, Flatiron's standard terms and conditions required RMA and its employees to "perform the Services described in Cover Page of this Agreement in a professional, competent, efficient and satisfactory manner. Services are described in terms of expected results. The manner and means of performance of the Services shall be determined solely by the Service Contractor." (Italics added.) In other words, the subcontract required Flatiron to begin paying RMA for its services at the scheduled show up time at the project site, and to continue paying RMA for its services consistent with the payment schedule. In return, RMA was authorized to determine the manner and means of its performance, provided it performed its services in a professional, competent, efficient, and satisfactory manner. Contrary to Flatiron's argument, nothing in the subcontract compelled RMA to begin performing under the subcontract at the time Flatiron began paying for RMA's services.
Because we conclude that RMA was required to indemnify Flatiron only for claims that occurred while RMA was performing tasks it was contracted to perform, and the undisputed facts show that Robbins was not performing any task under the subcontract at the time of his injury, there is not a triable issue of fact as to whether the indemnity provision applies here. The trial court did not err when it granted summary judgment in favor of RMA.
III
Duty to Defend
Flatiron contends that RMA owed it a duty to defend regardless of whether the indemnity provision applies. We are not persuaded.
A. Applicable Law
RMA sought summary adjudication as to both its duty to defend and its duty to indemnify. These duties are not identical; the duty to defend is broader than the duty to indemnify. (Regan Roofing Co. v. Superior Court (1994) 24 Cal.App.4th 425, 435, disapproved on another point in Crawford, supra, 44 Cal.4th at p. 565.) An indemnity against claims includes the costs of defense against such claims incurred in good faith. (Civ. Code, § 2778, subd. 3.)
A duty to defend is created at the time of tender, well before a duty to indemnify can be determined, where the underlying claims allege facts that would give rise to a duty to indemnify. (Crawford, supra, 44 Cal.4th at p. 558.) Thus, "where the plaintiff's complaint alleges facts embraced by the indemnity agreement, the indemnitor has a duty to defend throughout the underlying tort action unless it can conclusively show by undisputed facts that plaintiff's action is not covered by the agreement." (Centex Homes v. R-Help Construction, Co, Inc. (2019) 32 Cal.App.5th 1230, 1237 (Centex Homes).) A duty to defend may be discontinued if, "during the progress of the third party proceeding against the indemnitee, all claims potentially subject to the contractual indemnity obligation were eliminated, or if the promisor otherwise conclusively established that the claims were not among those 'embraced by the indemnity.'" (Crawford, at p. 558, fn. 7; see Scottsdale Ins. Co. v. MV Transportation (2005) 36 Cal.4th 643, 655 ["The defense duty arises upon tender of a potentially covered claim and lasts until the underlying lawsuit is concluded, or until it has been shown that there is no potential for coverage. [Citation.] When the duty, having arisen, is extinguished by a showing that no claim can in fact be covered, 'it is extinguished only prospectively and not retroactively' "].)
B. Analysis
Flatiron contends RMA's duty to defend arose at the time Flatiron tendered the defense because Robbins's complaint alleged facts that were potentially embraced by the indemnity agreement, thus triggering the duty. (See Crawford, supra, 44 Cal.4th at p. 558; Centex Homes, supra, 32 Cal.App.5th at p. 1237.) It further argues that RMA's duty to defend continued until the trial court entered its order granting summary judgment in favor of RMA.
However, the complaint does not allege facts embraced by the indemnity agreement. Although we recognize that Robbins was at the project site to perform work as an RMA employee at the time he was injured, the complaint lacks essential factual allegations that would trigger the duty to defend. Specifically, Robbins's complaint does not allege that he was acting in performance of the subcontract at the time of his injury, that he was located at a site controlled by RMA at the time of his injury, or that any negligent act or omission by RMA or an RMA employee caused or contributed to his injuries.
Instead, Robbins's complaint alleged that Flatiron and Teichert negligently caused his injuries by creating a dangerous condition and failing to warn him or make it safe. Robbins further alleged that Flatiron was negligent per se by violating a statute requiring certain safety measures where there are floor holes into which a person could accidentally walk. (Cal. Code Regs., tit. 8, § 1632.) Finally, the complaint alleged that Flatiron should be held liable for the actions of its employees. The complaint did not allege any facts that could be read as suggesting that Robbins was injured in the performance of the subcontract. Therefore, RMA's duty to defend was not triggered by Robbins's complaint.
Flatiron correctly observes that Robbins was not required to name RMA as a defendant to trigger the duty to defend, and that Robbins's only recourse against RMA was to pursue a workers' compensation claim, and therefore he was prohibited from alleging that RMA negligently caused his injuries. But those arguments miss the point. The issue before us is whether Robbins's complaint alleged facts embraced by the indemnity agreement. (Centex Homes, supra, 32 Cal.App.5th at p. 1237.) Because it did not, the duty to defend was not triggered.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
We concur: Hull, Acting P. J., Keithley, J. [*]
[*]Judge of the Butte County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.