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Crouse v. Brobeck11/25/1998
ns. Co. v. National Union Fire Ins. Co. (1980) 107 Cal.App.3d 456, 468; Orosco v. Sun-Diamond Corp. (1997) 51 Cal.App.4th 1659, 1670.) Because the right to seek indemnity from the former partner would be hollow if its pursuit exposed the partnership to damages for breach of fiduciary duty, we are convinced that pursuit of the indemnity action does not violate any fiduciary obligation BPH owed to Boatwright.
G. The Statutory Indemnification Boatwright Sought Against BPH Is Duplicative of His Claims for Indemnity Under AMA Principles
Boatwright's cross-complaint against BPH asserted a claim for indemnity under Corporations Code section 15018, subdivision (b), which provides:
"The partnership must . . . indemnify every partner in respect of payments made and personal liabilities reasonably incurred by him in the ordinary and proper conduct of its business . . . ."
That section obligates the partnership to reimburse the paying partner to the extent he "has paid more than his share of partnership obligations . . . ." (Kazanjian v. Rancho Estates, Ltd. (1991) 235 Cal.App.3d 1621, 1627, italics added.) However, because the partnership is entitled to indemnity from a negligent partner for partnership liabilities attributable to his negligence (United States Fire Ins. Co. v. National Union Fire Ins. Co., supra, 107 Cal.App.3d at p. 468), here Boatwright will not pay more than "his share" of the partnership obligations unless a jury holds him liable for the injury caused by the pre-1990 negligence and attributes some portion of the comparative fault for that injury to BPH employees or partners other than Boatwright. Although Boatwright would be entitled under those circumstances to indemnity from BPH pursuant to Corporations Code section 15018, subdivision (b), those same circumstances would also entitle Boatwright to partial equitable indemnity from BPH under AMA principles.
Because we have concluded that Boatwright's claim for indemnity under AMA principles for pre-1990 activities remains viable, and the statutory right appears indistinguishable from the rights conferred by AMA, we conclude the trial court erroneously granted summary adjudication against Boatwright's statutory claim.
DISPOSITION
The summary judgment in favor of Boatwright and Page against Crouse is reversed. Crouse is entitled to costs on appeal in appeal No. D026136. The summary judgment in favor of BPH against Crouse is affirmed. The order granting summary adjudication in favor of BPH on Boatwright's cause of action against BPH for breach of fiduciary duty is affirmed. The summary judgment in favor of BPH on Page's cause of action for equitable indemnity and the orders granting summary adjudication in favor of BPH on Boatwright's causes of action for equitable indemnity, breach of implied contractual duty and statutory indemnity are reversed, and those causes of action are remanded for further proceedings consistent with this opinion. BPH shall recover costs on appeal against Crouse in appeal No. D025143, and Boatwright and Page shall recover costs on appeal against BPH in appeal No. D025143.
CERTIFIED FOR PUBLICATION
WE CONCUR: KREMER, P.J. & McINTYRE, J.
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