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TRW11/19/2002
Plaintiff TRW, Inc. and its insurers, Continental Casualty Company and Steadfast Insurance Company (collectively TRW), appeal from a judgment entered in favor of cross-defendant Coletel Fab & Weld Inc. (Coletel) and defendant American Monorail of California (AMC) in consolidated actions for implied and express indemnity which arose from the settlement of a wrongful death action. TRW contends the trial court erred by instructing the jury hearing the express indemnity claim that plaintiffs had the burden of proving AMC or its agents were negligent and this negligence was a substantial factor in causing the victim's death. It also attacks two of the court's evidentiary rulings at trial and the denial of its motion for judgment notwithstanding the verdict. We find no error and affirm the judgment.
FACTS
TRW contracted with T. G. Construction to modify a building it owns and uses for laser optics testing. The work included installing an electrically-powered overhead bridge crane on the ceiling. T. G. Construction subcontracted the design, manufacture, and installation of the crane to AMC. In turn, AMC contracted with Coletel to assemble and install the crane.
The subcontract between T. G. Construction and AMC required the latter "to lay out and perform said work in the best workmanlike manner by qualified, careful and efficient workers and to use materials satisfactory for the purpose for which they are supplied." AMC also agreed to "indemnify and hold Owner and General Contractor and their agents and employees harmless from and against all liability, liens, claims, damages, costs, and expenses, including attorney's fees, arising out of or resulting from the performance of the work, provided that any such liability, lien claim, damage, cost or expense (a) is attributable to bodily injury , sickness, disease or death, . . . or to injury to or destruction of property including the loss of use resulting therefrom, and (b) is caused in whole or in part by any act or omission of , or of subcontractors of any lower tier, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by a party indemnified hereunder."
The bridge crane operates by electricity conveyed through three metal bars described as buss bars. To protect against electrocution, each buss bar is sheathed in plastic insulation with plastic end caps covering its exposed ends. The buss bars's manufacturer issued a modification to Step No. 6 of its installation instructions, which recommended cutting each bar so that its ends were flush with the plastic sheathing before inserting the end caps. The Coletel employees who installed the crane in TRW's building admitted they did not cut off a one-inch exposed section at the end of each buss bar before installing the end caps. They claimed they never received or knew about the modification to Step No. 6 when installing TRW's bridge crane. At trial, TRW presented evidence the end caps could be removed with less force than would be required if the buss bars were cut as recommended in the Step No. 6 modification.
Upon completion of the building modification, TRW contracted with Guy Roberts to clean the building. While standing on a ladder wiping down an area near the crane with a wet cloth, Roberts was electrocuted and fell over 20 feet to the ground. He died from electrical shock and injuries suffered in the fall. A post-accident investigation found the end cap of one buss bar on the ground.
Roberts's heirs sued TRW and others for wrongful death. TRW cross-complained against Coletel for implied indemnity. During trial of the wrongful death
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