In Crawford v. Weather Shield Mrg., Inc.  2006 SOS 508, the California Court of Appeal, Fourth District, issued an extensive opinion affirming the trial court’s decision that an indemnitor’s duty to defend (absent language to the contrary) does not require a finding of fault. 

The Crawford case involved a construction defect action filed by homeowners against a developer.  Pursuant to an agreement between the window manufacturer, as subcontractor, and the developer, the developer tendered the defense of the matter to the window manufacturer.

The agreement entered into between the window manufacturer and the developer required the window manufacturer to “defend” actions brought against the developer “founded on claims growing out of the execution” of the window manufacturer’s work. The homeowners asserted claims involving leaking and fogging windows.

The window manufacturer denied the tender of defense by the developer.  The developer settled with the homeowners and proceeded to trial against the window manufacturer and window framer.  The jury ultimately found the window manufacturer was not negligent.  However, the developer sought to recover attorney fees and costs for defending the lawsuit from the window manufacturer.  The Trial court judge determined that the window manufacturer and window framer each owed developer one half of the attorney fees and costs incurred in the lawsuit which were properly attributable to the homeowner’s claims for leaking and fogging windows.

The appellate court affirmed the award of costs to the developer for defending the window claims.  The court determined that the homeowners alleged claims for leaking and fogging windows and that such claims were “founded upon a claim” growing out of the work of the window manufacturer. In so rendering its decision, the Court stated:

“In sum, the subcontract agreement between the developer and the window manufacturer in this case, even narrowly construed, plainly and unambiguously called for the window manufacturer to provide a defense, i.e., pay for an attorney or attorneys to conduct that defense, of the homeowner’s suit, at least to the degree the suit was “founded upon” claims of the window problems, independent of whether the window manufacturer was itself ever held to be responsible for those window problems. The claim, after all, was “founded upon” a claim of damage for those alleged window problems.”

The Court was clear that the defense, and associated costs, were limited to only those related to the homeowners’ window claims:

“Accordingly, we most certainly do not say a subcontractor is necessarily responsible for providing a “complete defense” to an action founded upon a claims growing out of a subcontractor’s work.  We only say that this subcontract obligated this window manufacturer to pay for its half share of defense costs reasonably attributable to the homeowners’ window claims, i.e., clearly “growing out” of the subcontractor’s own work. No one should assert that this opinion stands for any proposition broader than that.”

Crawford holds that where a subcontractor enters into an agreement with a developer whereby the subcontractor agrees to “defend” the developer for any claims “growing out” of the subcontractors” “work,” the subcontractor will be required to provide a defense for the developer even though the subcontractor may ultimately be found to not to have been negligent.