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Employers Mutual Liability Insurance Co. v. Tutor-Saliba11/27/1996
California Court of Appeals
No. B094170
51 Cal.App.4th 384, 59 Cal.Rptr.2d 92, 1996.ca.7
November 27, 1996
EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN, PLAINTIFF AND RESPONDENT,
v.
TUTOR-SALIBA, DEFENDANT AND APPELLANT.
Appeal from a judgment of the Superior Court of Los Angeles County. Super. Ct. No. SOC 096588. Hon. Robert L. LaFont, Judge.
Review Granted March 26, 1997 (S058283),
Jeniffer Wilder and Bradford T. Child, Millard, Pilchowski, Holweger & Child, for Defendant and Appellant.
Robert T. Moulton for Plaintiff and Respondent.
Hastings, J.; Vogel (c.s.), P.j., and Baron, J., Concurring.
The opinion of the court was delivered by: Hastings
HASTINGS, J.:
This appeal is from an order denying attorneys fees to a general contractor after trial on a complaint-in-intervention brought by a workers' compensation insurance carrier for recovery of payments made on behalf of an injured worker . The issue is whether or not an express provision for attorneys fees in a written contract between the general contractor and the subcontracting employer of the injured worker can be applied to the intervenor. We conclude that it cannot and we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant Tutor-Saliba was the general contractor of a high-rise office building. PDM Strocal (PDM) and Cowelco, Inc. (Cowelco) were two of the subcontractors involved in the project.
In February 1989, George Staehling (Staehling), an employee of PDM, fell down stairs which had been installed by Cowelco. Staehling filed a personal injury lawsuit against Cowelco and appellant, alleging that Cowelco had not properly barricaded the stairs and that appellant had negligently supervised its subcontractors, Cowelco and PDM.
Appellant cross-complained against Cowelco and PDM based upon an express agreement for indemnity contained in the written sub-contracts it had with each. The cross-complaint also alleged causes of action for partial indemnity, concurrent negligence and declaratory relief. Appellant's claim against PDM included a request for attorneys fees based upon an attorneys fees provision in the subcontract: "All other claims and disputes between the parties shall be decided by the appropriate California State Court in the County of Los Angeles. The prevailing party, shall be entitled to recover its attorneys' fees, witness fees and other expenses related to preparation and presentation of its case in a reasonable amount."
Respondent, Employers Mutual Liability Insurance Company of Wisconsin, PDM's workers' compensation insurance carrier, intervened in the lawsuit pursuant to Labor Code section 3852, seeking recovery of workers' compensation benefits it had paid to Staehling.
The personal injury action by Staehling and the related cross-complaint by appellant were settled and dismissed, resolving all claims except for the outstanding claim by respondent to recover the workers' compensation benefits.
The intervention action proceeded to trial before a jury. Evidence was presented relating to negligence of all parties and the total amount of damages suffered by Staehling. The jury placed a value of $1,491,000 on the damages suffered by Staehling and apportioned negligence as follows: 20 percent to Staehling, 20 percent to PDM, 50 percent to Cow
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