Aluma Sys. Concrete Constr. of Cal. v. Nibbi Bros., Inc., 2 Cal. App. 5th 620 (2016)

Aluma (the “Contractor”) was sued by employees of Nibbi Bros. (the “Employer”) for injuries sustained on the job. Contractor sued Employer for indemnification based on the parties’ contract. The trial court sustained the Employer’s demurrer to the complaint on the ground that the employees’ lawsuit set forth claims only against the Contractor and not against the Employer. The Court of Appeal reversed, holding that under Proposition 51 the Employer could be liable for its proportionate share of comparative fault, regardless of what was alleged in the complaint. The Court further held that the duty to defend is different from the duty to indemnify – while the former may depend on the framing of the third party’s complaint because the duty is triggered by a claim, the latter does not arise until liability is actually proven.