# Prince v. Pacific Gas & Electric Co. > California Supreme Court · March 19, 2009 · 45 Cal. 4th 1151 URL: https://www.frixlaw.com/law-library/cases/5452532 ## Case - **Full name:** EVE PRINCE, Cross-complainant and v. PACIFIC GAS & ELECTRIC COMPANY, Cross-defendant and - **Court:** California Supreme Court - **Decided:** March 19, 2009 - **Citations:** 45 Cal. 4th 1151; 90 Cal. Rptr. 3d 732; 202 P.3d 1115; 2009 Cal. LEXIS 2934 - **Precedential status:** Published - **Opinion:** Concurrence by Werdegar - **Judges:** Baxter, Werdegar - **Cited by:** 79 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5452532 ## How later opinions describe it (automated extraction) - explaining that “the basis for indemnity is restitution” (quotation and brackets omitted) - discussing contractual indemnity and equitable provision and pleaded that it had been impracticable to fix the parties’ damages, undermining defendants’ demurrer argument that the provision was an unenforceable penalty ## Opinion text WERDEGAR, J., Concurring. I concur in the majority opinion. I write separately to address what I perceive to be a general misperception about the nature of implied contractual indemnity and to express my belief that irrespective of its nature, the doctrine no longer exists in California. As the majority observes, implied contractual indemnity and equitable indemnity developed as related exceptions to the rule of noncontribution existing in this state before American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578 [ 146 Cal.Rptr. 182 , 578 P.2d 899 ]. (Maj. opn., ante, at pp. 1163-1164.) Equitable indemnity rests on the concept that “ ‘one person is unjustly enriched at the expense of another when the other discharges liability that it should be his responsibility to pay.’ ” (Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital (1994) 8 Cal.4th 100, 108 [ 32 Cal.Rptr.2d 263 , 876 P.2d 1062 ].) For that reason, as the majority rightly states, as to equitable indemnity “ ‘ “there can be no indemnity without liability.” ’ ” (Maj. opn., ante, at p. 1159.) Implied contractual indemnity, on *1170 the other hand, historically arose from the concept that a party who breaches a contract is responsible for the resulting damages to its contractual partner. For example, in the seminal case of S.F. Unified Sch. Dist. v. Cal. Bldg. etc. Co. (1958) 162 Cal.App.2d 434 [ 328 P.2d 785 ], which the majority discusses (maj. opn., ante, at pp. 1161-1162), the appellate court reasoned the defendant maintenance company could be required to indemnify the school district even if the parties’ contract contained no express provision for indemnity, holding, “such a warranty or agreement to indemnify would necessarily be implied” (S.F. Unified, at p. 449). In my view, Bear Creek Planning Com. v. Title Ins. & Trust Co. (1985) 164 Cal.App.3d 1227 [ 211 Cal.Rptr. 172 ] correctly summarized the law defining implied contractual indemnity when it explained: “ ‘[W]here the right of implied indemnity arises from a contractual relationship between the indemnitor and the indemnitee, it is predicated upon the indemnitor’s breach of such contract, the rationale of the cases being that a contract under which the indemnitor undertook to do work or perform services necessarily implied an obligation to do the work involved in a proper manner and to discharge foreseeable damages resulting from improper performance absent any participation by the indemnitee in the wrongful act precluding recovery.’ [Citation.]” (Id. at p. 1237.) Thus, “implied contractual indemnity is based upon the premise that a contractual obligation to perform ‘carries with it an implied agreement to indemnify and to discharge foreseeable . . . damages . . . ’ ” resulting to a contractual partner from the negligent performance of that obligation. (Ibid.) Because implied contractual indemnity as originally conceived was based on a duty one party to the contract owed to the other, contrary to the majority’s assertion (maj. opn., ante, at p. 1166) it has not always been a restitutionary doctrine that depended on the payment by the indemnitee of a legal obligation the indemnitor owed to an injured plaintiff. Rather, the indemnitor could be required to pay its contractual partner even if the indemnitor was immune from direct liability to the injured party. It is for that reason the defendant maintenance company in S.F. Unified Sch. Dist. v. Cal. Bldg. etc. Co., supra, 162 Cal.App.2d 434 , was required to pay the school district even though by reason of the workers’ compensation laws in existence at the time, the maintenance company could not be required to pay the injured worker. (Id. at pp. 440-442.) And it is for that reason, contrary to the majority (maj. opn., ante, at pp. 1168-1169), that I believe Pacific Gas & Electric Company’s (PG&E) immunity from direct liability to Joshua Jackson would not of itself bar Eve Prince from pursuing an action against PG&E for implied contractual indemnity as that doctrine was originally conceived. Nonetheless, the doctrine of implied contractual indemnity has always presented significant conceptual and practical problems, some of which were alluded to in Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1029-1033 [ 269 Cal.Rptr. 720 , 791 P.2d 290 ], where a majority of this court *1171 recognized that ordinary rules of express contractual indemnity could not reasonably be applied to a claim of implied contractual indemnity and disposed of the problem by characterizing implied contractual indemnity as simply a form of equitable indemnity. As I believe equitable indemnity provides a far better tool than traditional implied contractual indemnity for distributing liability between those directly or legally responsible for an injury or loss, I without reservation join in the majority’s holding that a remedy under the doctrine of implied contractual indemnity may not be had when, as here, none would be available under the doctrine of equitable indemnity because the contracting party is immune from liability. But in my opinion, which admittedly is inconsistent with that expressed by the majority in Bay Development, relief in that event should be denied not because the doctrine of implied contractual indemnity is a form of equitable indemnity, but because the development of equitable indemnity has obviated any need for the unwieldy doctrine of implied contractual indemnity, and it should be abandoned. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5452532. Public record. Not legal advice.