DeSILVA GATES CONSTRUCTION, L.P. v. M. BUMGARNER, INC. No. A122576.
DESILVA GATES CONSTRUCTION, L.P., Cross-complainant and Appellant, v. M. BUMGARNER, INC., Cross-defendant and Respondent.
Court of Appeals of California, First District, Division Two.
Filed August 2, 2010.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
DeSilva Gates Construction, L.P. (DeSilva Gates) appeals from a determination of the Alameda County Superior Court, following a jury trial, that subcontractor M. Bumgarner, Inc. (MBI) owed DeSilva Gates neither a duty to defend nor a duty to indemnify under the terms of the subcontract between the two. DeSilva Gates and others had been sued by Ramona Schlicker and other plaintiffs for personal injuries and other damages plaintiffs had sustained in two separate automobile accidents occurring in February 2003 on Interstate 580. The central question presented here is whether the trial court properly allowed the jury to determine whether the plaintiffs' claims "arose out of or in connection with MBI's operations performed under the subcontract."
DeSilva Gates contends the trial court erred in submitting the question to the jury and in refusing to rule on the issue as a question of law based solely on the plaintiffs' pleadings and the language of the subcontract. DeSilva Gates further contends that the court erred in denying its motions for judgment on the pleadings and for judgment notwithstanding the verdict (JNOV), as the evidence supported a verdict in its favor as a matter of law, and in denying its motion in limine to exclude causation evidence as improper and prejudicial. Finally, DeSilva Gates argues that the jury instructions and special verdict form were incomplete, misleading, and improperly deferred the interpretation of the contract to the jury. We shall conclude the court erred in submitting to the jury the question whether the plaintiffs' claims "arose out of or in connection with MBI's operations" under the subcontract as to MBI's duty to defend, but did not err in submitting that question to the jury as to the indemnity issue.
FACTS AND PROCEDURAL BACKGROUND
The City of Dublin contracted with DeSilva Gates to be the general contractor on a highway overcrossing improvement project on Interstate 580 in the area just east of the Santa Rita Road and Tassajara Road overcrossing. DeSilva Gates contracted to erect a new overpass and ramps to handle the increased traffic flow associated with development of areas around Dublin.
On May 16, 2002, DeSilva Gates subcontracted to MBI performance of overhead sign and metal beam guard rail work, as well as work related to a cable median barrier located in the highway median between the eastbound and westbound lanes of Interstate 580.
On February 16, 2003, German Rodriguez was traveling westbound on Interstate 580 when his pickup truck struck the cable median barrier separating eastbound and westbound traffic on Interstate 580, passed through the highway median's cable barrier system, and collided with two vehicles in the opposing lanes of traffic. Rodriguez first struck a vehicle driven by Fernando Silveira, and containing passengers Tammy, Adryanna, Alexandria, and Taylor Silveira (the Silveira plaintiffs). The Silveira plaintiffs all claimed to have been injured in this accident. Rodriguez then collided with a second vehicle driven by Ramona Schlicker, in which Laci Schlicker was a passenger. Ramona and Laci Schlicker claimed injuries as a result of the accident, and Hans Schlicker claimed loss of consortium damages (the Schlicker plaintiffs). This accident occurred approximately 2,331 feet east of the Tassajara overcrossing.
Nine days later, on February 25, 2003, an automobile driven by Evert Alberto
These two accidents resulted in three lawsuits being filed against, among others, numerous entities involved in the construction project, including the City of Dublin, the State of California, and Caltrans, as well as against appellant general contractor DeSilva Gates. In addition to other claims, all contained allegations regarding the condition of the cable median barrier system.
The Silveira Plaintiffs' Complaint
On February 10, 2004, the Silveira plaintiffs sued Rodriguez, his employer, Caltrans, and the State of California. With respect to the median barrier, the complaint alleged that "Interstate 580 in and about the location of the collision was in a dangerous condition in that there was an unsafe and insufficient median barrier. The cable barrier was also in a state of disrepair, in need of replacement, and not properly maintained, resulting in irregular elevation which further reduced arrest potential of the cable barrier. The cable barrier was also defectively designed. This unsafe condition allowed the vehicle operated by Defendant Rodriguez to cross over the median divider . . . ." In an amended complaint filed on May 13, 2004, the Silveira plaintiffs alleged in addition to the foregoing with respect to the cable median barrier: "At all relevant times, said highway was in a dangerous condition, including but not limited to the following:
The Silveira plaintiffs added DeSilva as a Doe defendant on October 7, 2004.
The Schlicker Plaintiffs' Complaint
The Schlicker plaintiffs filed a similar action against Rodriguez, his employer, the State of California and Caltrans. The original and amended complaints filed by the Schlicker plaintiffs contained allegations identical to those in the original Silveira plaintiffs' complaint regarding the cable median barrier. On May 5, 2004, the Schlicker plaintiffs amended their complaint to add DeSilva as a Doe defendant.
The Festejo Plaintiffs' Complaint
As a result of the second accident involving Milagros Festejo, her husband and daughter, Adelmo and Stephanie Festejo (the Festejo plaintiffs), filed a wrongful death action against the State of California. On November 22, 2004, the complaint was amended to add DeSilva Gates as a defendant. As had the Silveira and Schlicker complaints, the Festejo complaint alleged, with respect to the median barrier, that "Interstate 580 in and about the location of the collision was in a dangerous condition in that there was an unsafe and insufficient median barrier. The cable barrier was also in a state of disrepair, in need of replacement, and not properly maintained, resulting in irregular elevation which further reduced arrest potential of the cable barrier." It continued, "defendant DeSilva Gates . . . was performing construction at the location where the accident giving rise to this action occurred pursuant to a contract with the City of Dublin. DeSilva Gates was negligent in its maintenance of the construction zone, including the cable barrier medians, within which Evert Alberto was operating his vehicle and Milagros Coronado Festejo was killed. DeSilva Gates was also negligent in the design and construction of the work being performed at and around the accident scene. De Silva Gates['s] negligence was a substantial factor in the accident giving rise to this action and plaintiffs' injuries and damages that flowed therefrom."
The Subcontract Indemnity Provisions
Upon receipt of the plaintiffs' complaints, DeSilva Gates tendered its defense of these claims to MBI. MBI refused to accept the tender of defense and DeSilva Gates cross-complained against MBI, seeking indemnity in the Festejo, Silveira and Schlicker actions under the indemnity provisions of its subcontract with MBI. The subcontract provided in relevant part as follows:
During the course of the litigation, MBI and De Silva Gates each moved for summary judgment, supported by various declarations and other evidence. MBI contended as a matter of undisputed material fact that its work on the cable median barrier was limited and could not have affected the cable barrier at the points of the accidents, nearly one-half mile away. The trial court denied that motion. The court also denied DeSilva Gates's motion for summary judgment on procedural grounds and did not reach the merits.
DeSilva Gates participated in global settlements of all three actions with all of the parties to the lawsuits, except MBI.
On April 1, 2008, DeSilva Gates filed it's "Trial Brief and Request for Determination as a Matter of Law," wherein it argued that the allegations of the complaints were sufficient to trigger the express indemnity obligation of the subcontract and that the only issue to be determined by the court was the amount of damages to which DeSilva Gates was entitled. On April 7, 2008, following argument, the trial court denied DeSilva Gates's request for judgment as a matter of law, and ruled that whether or not the indemnity provision had been triggered involved questions of fact.
The court reserved ruling upon DeSilva Gates's motion in limine No. 6 seeking to exclude any reference or introduction of evidence related to accident causation. The court indicated that it needed to hear more evidence before ruling on the motion.
The indemnity action proceeded to trial before a jury on April 15, 2008, and the jury ultimately determined in a unanimous special verdict that the claims of the plaintiffs in the three underlying lawsuits did not "arise out of or in connection with the work performed by MBI." On May 13, 2008, the court entered judgment on the verdict. On May 28, 2008, DeSilva Gates moved for JNOV on the grounds that the evidence submitted at trial supported a finding that the indemnity provision was triggered as a matter of law. The court heard and denied DeSilva's JNOV motion and its accompanying motion for new trial.
This timely appeal followed.
I. Duties to Indemnify and to Defend
In Crawford v. Weather Shield Mfg, Inc.. (2008)
Crawford addressed duty to defend issues in a noninsurance context, much like the instant case. The court held that where the underlying suits alleged a claim that would be covered by the subcontract (in that case, allegations of construction defects arising from the subcontractor's negligence), the indemnitor's duty to defend arose when the underlying action was brought, even though (1) a jury ultimately found the subcontractor was not negligent, and (2) the parties accepted an interpretation of the subcontractor that gave the builder no right of indemnity unless the subcontractor was negligent. (Crawford, supra, 44 Cal.4th at p. 547.)
DeSilva Gates here maintains that Crawford, supra,
The trial court in the case before us ruled, over MBI's objection, that MBI's negligence or lack thereof was irrelevant to the question whether the plaintiffs' claims "[arose] out of or in connection with the work performed by MBI." The court here determined this question required the presentation of evidence on the closeness of the connection between the work performed by MBI and the plaintiffs' claims regarding the accidents.
We start with the words of the indemnity contract. (See Continental Heller Corp. v. Amtech Mechanical Services, Inc. (1997)
The subcontract between these parties requires MBI to indemnify DeSilva Gates "of and from any and all claims, demands, causes of action, damages, . . . of every kind and nature whatsoever (`Claims') arising out of or in connection with Subcontractor's operations to be performed under this Agreement, including but not limited to: [¶] (a) Personal injury. . . and/or damage to property . . . caused or alleged to be caused in whole or in part by any negligent act or omission of Subcontractor . . . ." (Italics added.)
The indemnity provisions of the subcontract also require MBI to "defend all Claims as defined above that may be brought or instituted by third persons . . . against Contractor or Owner or their agents or employees or any of them." (Italics added.) Consequently, the subcontract required MBI "to indemnify" De Silva Gates from and to "defend" DeSilva Gates against "all Claims" "arising out of or in connection with [MBI's] operations to be performed under [the] Agreement . . . including but not limited to . . . [p]ersonal injury . . . and/or damage to property . . . caused or alleged to be caused . . . by any negligent act or omission of [MBI] . . . ."
Duty to Indemnify
Indemnity agreements commonly contain language providing for indemnification in cases of loss "`arising out of or in any way connected with'" the performance of the contract. (Continental Heller, supra, 53 Cal.App.4th at pp. 506-507 & fn. 3.) Continental Heller recognized, however, that only a few cases "address the meaning of `arising out of performance of work,' or its equivalent, in terms of causation," rather than whether the language expresses an intent to indemnify the indemnitee for its own negligence. (Id. at pp. 506-507, fn.3, italics added.) Those few cases read the language as requiring a connection similar to that for determining cause in fact, at minimum a "but for" causation test. (Id. at pp. 506-507, fn. 3.) This appears to mirror the interpretation of the phrase in the insurance context, where liability "`arising out of' the insured's work connotes only a `minimal causal connection or incidental relationship.'" (Croskey et al., Cal. Practice Guide: Insurance Litigation (The Rutter Group 2009) ¶ 7:1409.2, quoting Acceptance Ins. Co. v. Syufy Enterprises (1999)
Such a minimal causal connection was required by the appellate court in Continental Heller, supra, 53 Cal.App.4th at pages 505-507. In that case, the subcontractor Amtech installed a refrigeration system in an expanded meat packing plant owned by Oscar Meyer. Years later, an explosion was caused by the failure of a valve installed by Amtech. In an action by the general contractor for indemnity for its settlement of underlying claims, the appellate court concluded that an indemnity agreement requiring Amtech to indemnify Continental Heller for work "`which arises out of or is in any way connected' with the subcontractor's `acts or omissions' in the performance of its work [did] not require a showing the subcontractor was at fault in causing the general contractor's loss or that its performance was a `substantial' or `predominating' cause of the loss." (Id. at p. 503.) It did, however, require some proof of causation. (Id. at p. 505, fn. 1.)
In Centex Golden Construction Co. v. Dale Tile Co. (2000)
Similarly here, MBI's obligation to indemnify DeSilva Gates required a showing that the underlying claim arose out of MBI's performance of the subcontract.
Duty to Defend
We turn to the question whether MBI breached its duty to defend DeSilva Gates in the underlying action. Although the language of the duty to defend clause references the definition of the duty to indemnify clause, the scope and the timing of the two duties are not the same. Unlike the duty to indemnify that arises upon proof that the indemnity is actually owed—in this case, proof the plaintiffs' claims "[arose] out of or in connection with" MBI's operations under the contract
The question of whether the complaints here alleged damages or loss "arising from or connected with" MBI's operations under the subcontract, seems to us in this case quintessentially a question of law to be resolved by the court. Crawford recognized that the trial court may wait until trial of the underlying case to "assess after the fact" the indemnitor's proportionate liability for breach of its duty to defend where the litigation poses "practical difficulties of sorting out multiple, and potentially conflicting, duties to assume the active defense of litigation then in progress." (Crawford, supra, 44 Cal.4th at p. 565, fn. 12.)
The question whether the underlying suit fell within the scope of MBI's contractual duty to defend was a question of law that the court should have resolved against MBI in this case. MBI contends that the plaintiffs never identified it or any work done by it as a cause of the accident. The Supreme Court has reiterated that such particularity in pleading is not required where the duty to defend is at issue: "As we stated in Gray v. Zurich Ins. Co. (1966)
Most cases expressing this rule occur in the insurance context. However, the Supreme Court's citation in Paramount Properties of the noninsurance indemnity case of Davidson v. Welch for the proposition that it is the "potential of liability" under the agreement that determines whether the underlying action gives rise to a duty to defend, indicates that the court also will look beyond the literal wording of the complaint to determine whether a duty to defend is owed in noninsurance contexts. In Davidson v. Welch, supra,
The recent case UDC-Universal Development, L.P. v. CH2M Hill (2010)
Here, we are convinced that the underlying complaints against DeSilva Gates alleging the cable median barrier was an "insufficient median barrier . . . in a state of disrepair, in need of replacement and not properly maintained, resulting in irregular elevation which further reduced arrest potential of the cable barrier," and allegations that "poor maintenance of the aging cable-barrier system" diminished or eliminated the barrier system's arrest potential, gave rise to the "potential of liability" of MBI. (See Davidson v. Welch, supra, 270 Cal.App.2d at p. 235, italics added.) This can be even more clearly seen in the additional allegations of the Festejo plaintiffs' complaint: that DeSilva Gates was performing construction at the location where the accident occurred; that DeSilva Gates was negligent in its maintenance of the construction zone, including the cable barrier medians; that DeSilva Gates was also negligent in the construction of the work being performed at and around the accident scene; and that DeSilva Gates's negligence was a substantial factor in the accident.
MBI's contentions that the plaintiffs did not specifically identify its work on the cable median barriers as contributing to the accidents, and that the allegations concerning DeSilva Gates and the cable median barrier were limited to the location of the accidents or to the construction zone, reads the complaints too narrowly, contrary to the teachings of Gray v. Zurich Insurance Co., supra,
Both in Crawford, supra,
II. Miscellaneous Claims of Error
DeSilva Gates's remaining claims of error must be viewed from the vantage point of our determination that the court erred in submitting the duty to defend question to the jury, but did not err in allowing the jury to determine whether the plaintiffs' claims arose from or were connected with MBI's work for purposes of indemnity. As we have observed, the court and the parties apparently conflated the issues of duty to defend and duty to indemnify and did not appear to recognize the different analyses required for resolution of the two issues. Because we have determined that MBI owed DeSilva Gates a duty to defend it as a matter of law under the provisions of the subcontract, but that the indemnity question was properly submitted to the jury, we address DeSilva Gates's remaining contentions only as they relate to the question of MBI's duty to indemnify DeSilva Gates for losses suffered by it in settling the underlying lawsuits.
As a threshold matter, substantial evidence supports the jury's determination that the underlying claims did not actually "arise out of or in connection with the work performed by MBI." DeSilva Gates does not argue that the evidence was insufficient to support the jury verdict, but rather that the question should not have been submitted to the jury in the first place.
Motions Denied by the Court
DeSilva Gates contends that the court erred in denying its "motion for judgment on the pleadings" and its motion for JNOV, arguing that the evidence supported a verdict in its favor as a matter of law.
MBI challenges DeSilva Gates's characterization of its trial brief "request for determination as a matter of law," as a motion for judgment on the pleadings. In this request, DeSilva Gates argued that the allegations of the plaintiffs' complaints were sufficient to trigger the indemnity obligation of the subcontract. We agree with MBI that the trial brief and request submitted by DeSilva Gates was not a motion for judgment on the pleadings, as it relied not only upon the language of the subcontract and the pleadings, but also upon various discovery matters and declarations of its expert witness. In any event, as we determined above, the indemnity issue turned on whether the claims arose out of or in connection with MBI's work—an issue requiring some factual determinations relating to minimal causation and the connection between the plaintiffs' claims of loss and MBI's work under the contract. Consequently, the trial court did not err in denying DeSilva Gates's "request for determination as a matter of law" as to the indemnity question, even assuming the request was properly presented to the court.
Nor did the trial court err in denying DeSilva Gates's request for JNOV as to the indemnity issue. This motion was made on essentially the same grounds as DeSilva Gates's request for judgment as a matter of law. "[T]he denial of [JNOV] is reviewed to determine whether substantial evidence supports the jury verdict; if so, the denial will be upheld." (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2009) ¶ 8:147, pp. 8-109 to 8-110 (Eisenberg), citing Dell'Oca v. Bank of New York Trust Co., N.A. (2008)
DeSilva Gates contends the court erred in denying its motion in limine No. 6 to exclude causation evidence as improper and prejudicial. DeSilva Gates refers to this motion in its opening brief and asserts that "the Trial Court's failure to grant its Motions as a matter of law was made in error, that it caused substantial confusion to the Jury, and resulted in prejudice to [DeSilva Gates]." This is the whole of its specific argument relating to denial of its motion in limine in its opening brief. DeSilva Gates has failed to cite any authority for its assertion of this particular error, but instead appears to rely on its general contention that the indemnity issue was a matter of law.
Jury Instructions and Special Verdict Form
DeSilva Gates argues that the jury instructions and special verdict form submitted to the jury were incomplete and misleading, and that they improperly deferred the interpretation of the contract to the jury. With respect to the indemnity issue, we disagree.
The court instructed the jury in relevant part as follows:
The special verdict form asked: "1. Did the underlying claims of the plaintiffs arise out of or in connection with the work performed by MBI?" The jury answered "no" to that question and therefore did not address the second question: "What was the amount of DeSilva Gates'[s] damages, if any, arising out of or in connection with the work performed by MBI?"
"A party is entitled, upon request, to correct, nonargumentative instructions on every theory of recovery or defense that was advanced by the party and supported by substantial evidence. [Citations.]" (Haning et al., Cal. Practice Guide: Personal Injury (The Rutter Group 2009) ¶ 9:471, citing, Soule v. General Motors Corp. (1994)
"`"`In a civil case, each of the parties must propose complete and comprehensive instructions in accordance with his theory of the litigation; if the parties do not do so, the court has no duty to instruct on its own motion.' [Citations.]" (Agarwal v. Johnson (1979)
DeSilva Gates asserts, nevertheless, that the instruction as given was too general in that the term "arising out of" was not properly defined, and as a result the instruction was incomplete and misleading. Although DeSilva Gates objected to the instruction, it failed to provide the court with a well-tailored, nonargumentative alternative. "`Where, as here, "the court gives an instruction correct in law, but the party complains that it is too general, lacks clarity, or is incomplete, he must request the additional or qualifying instruction in order to have the error reviewed." [Citations.]' (Conservatorship of Gregory (2000)
DeSilva Gates maintains that it did seek instructions as to whether MBI's work subjected DeSilva Gates to liability. The "instructions" to which DeSilva Gates refers were not instructions as such, but were incorporated into several special verdict forms it proposed. The first was included in its trial brief wherein DeSilva Gates requested the court instruct the jury as follows:
These "instructions" appear not to be instructions, but, as we have observed, were part of an argumentative special verdict form. Moreover, to the extent they require a "potential of a judgment," they address the duty to defend issue rather than whether MBI had the duty to indemnify DeSilva Gates for amounts paid in settling the actions. Hence, they are not correct as to that issue. The court did not err in refusing these hybrid "instructions" on the indemnity issue.
At some point, DeSilva Gates also submitted another special verdict form set forth in full in the margin.
On May 6, 2008, the court addressed the special verdict form submitted by DeSilva Gates earlier that morning.
"`"A trial court has no duty to modify or edit an instruction offered by either side in a civil case," and "[i]f the instruction is incomplete or erroneous the trial judge may . . . properly refuse it." [Citations.]' [Citation.]" (Whiteley v. Philip Morris, Inc. (2004)
The court had a similar problem with the special verdict form submitted by DeSilva Gates. The court stated that the special verdict form was "not there to restate the causes of action, it's simply to ask questions and have the jury decide those questions . . . ." Counsel for DeSilva Gates then sought to have the court consider the special verdict form it had submitted the previous day.
Having found no error, we need not consider DeSilva Gates's claim that the jury was confused by the instruction given and by the special verdict form.
Were we to conclude the instructions given were incomplete or erroneous, or that the court erred in refusing the special verdict forms/instructions, DeSilva Gates has utterly failed to establish it was prejudiced thereby. "In assessing prejudice from an erroneous instruction, we consider, insofar as relevant, `(1) the degree of conflict in the evidence on critical issues [citations]; (2) whether respondent's argument to the jury may have contributed to the instruction's misleading effect [citation]; (3) whether the jury requested a rereading of the erroneous instruction [citation] or of related evidence [citation]; (4) the closeness of the jury's verdict [citation]; and (5) the effect of other instructions in remedying the error [citations].' [Citations.]" (Soule v. General Motors Corp., supra, 8 Cal.4th at pp. 570-571.) "Reversal for instructional error is warranted only where the reviewing court concludes `"the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.)' [Citations.]" (Whiteley v. Philip Morris Inc., supra, 117 Cal.App.4th at p. 656, quoting Soule v. General Motors Corp., at p. 580.) DeSilva Gates does not attempt to establish prejudice using the foregoing factors. Rather, DeSilva Gates relies upon the declaration of a single juror and emails among other jurors to each other following trial to show the jury was confused and misunderstood its task. It relies upon a declaration from Juror "D.P.," presented to the trial court in connection with the new trial motion, in which she states that she and other jurors had concluded neither DeSilva Gates nor MBI were "at fault for the cross median accidents alleged by Plaintiffs"; that "the drivers' excessive speed caused the cross-median accidents"; and that the jurors'"task was to determine if MBI was at fault for or caused the cross-median accidents alleged in Plaintiffs' complaints." This declaration was clearly inadmissible to impeach the jury's verdict, as were the copies of juror emails.
Evidence Code section 1150, subdivision (a), provides: "Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined." It is well established pursuant to this section that "[a] juror may not describe his or her subjective reasoning process in attempting to impeach his or her own verdict; such subjective mental processes are beyond hindsight probing, and evidence about a jury's subjective collective mental process purporting to show how the verdict was reached is inadmissible to impeach a jury verdict. Thus, juror declarations are inadmissible where they at most suggest deliberative error in the jury's collective mental processes—confusion, misunderstanding, and misinterpretation of the law." (47 Cal. Jur. 3d (Mar. 2010) New Trial § 97, fns. omitted.) As recognized by our Supreme Court, "[i]n cases of a `deliberative error' which appears to produce a mistaken or erroneous verdict, the result has almost invariably been to bar impeachment of the verdict." (People v. Romero (1982)
We conclude the court did not err in instructing the jury as to the indemnity issue or in utilizing the special verdict form and, in any event, DeSilva Gates has failed to demonstrate any error resulted in a "miscarriage of justice." (Cal. Const., art. VI, § 13.)
We have concluded that the trial court did not err in submitting to the jury the question whether the plaintiffs' claims "arose out of or in connection with" MBI's work under the subcontract, insofar as the indemnity issue is concerned. We have further concluded, however, that the court erred in submitting the "arising out of" question to the jury as to MBI's duty to defend under the contract. Plaintiffs' allegations relating to the cable median barrier gave rise to the potential of liability of MBI and triggered the duty to defend as a matter of law.
The judgment in favor of MBI is reversed insofar as it concludes MBI had no duty to defend DeSilva Gates in the underlying action. Insofar as the judgment concludes MBI had no duty to indemnify DeSilva Gates, we affirm. The matter is remanded for further proceedings, consistent with this opinion, including the award of attorney fees and costs reasonably incurred by DeSilva Gates in enforcing MBI's duty to defend under the subcontract. In all other respects, the judgment is affirmed.
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