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Maxim Crane Works, L.P v. Tilbury Constructors

August 8, 2012

MAXIM CRANE WORKS, L.P., CROSS-COMPLAINANT AND APPELLANT,
v.
TILBURY CONSTRUCTORS, CROSS-DEFENDANT AND RESPONDENT.



APPEAL from a judgment of the Superior Court of Sacramento County, Roland L. Candee, Judge. (Super. Ct. No. 34200700881753CUPOGDS)

The opinion of the court was delivered by: Duarte , J.

CERTIFIED FOR PUBLICATION

Affirmed.

Appellant Maxim Crane Works (Maxim) was hoist by its own petard when the trial court enforced an unfavorable choice-of-law provision in a form contract written by Maxim.

Steven Gorski, not a party to this appeal, sued Maxim for personal injuries arising from a worksite injury. Maxim cross-complained against Tilbury Constructors (Tilbury), Gorski's employer, seeking indemnity. After a court trial, the trial court found the indemnity agreement was inapplicable to Gorski's claim under Pennsylvania law, the law that Maxim's form contract with Tilbury specified should govern their agreement. The trial court later awarded Tilbury its attorney fees in full, without apportioning them between defending against the indemnity contract and defending against Gorski's underlying claim.

On appeal, Maxim contends the trial court should not have applied Pennsylvania law to this dispute, and also challenges the award of attorney fees. We shall affirm.

BACKGROUND

Generally speaking, a worker injured on the job is limited to the workers compensation remedy against the employer. (See Angelotti v. The Walt Disney Co. (2011) 192 Cal.App.4th 1394, 1403.) However, a worker may file a civil tort suit against a third party tortfeasor. (Lab. Code, § 3852; see Campbell v. Harris-Seybold Press Co. (1977) 73 Cal.App.3d 786, 790-791.)

On November 27, 2006, Gorski was injured while working for Tilbury at a construction site in Stockton. Maxim had provided Tilbury a crane and operator pursuant to a contract signed that day. The contract was a Maxim form providing that Pennsylvania law "shall govern" the contract. Gorski sued Maxim, alleging the crane was negligently operated. Maxim cross-complained against Tilbury for breach of contract and indemnity, and in part alleged Tilbury had a duty to defend Maxim, and that Tilbury had been negligent.

Gorski received a $900,000 settlement from Maxim after dismissing his wife's loss of consortium claim. This left the cross-complaint to be tried to the court.

Maxim initially contended that Pennsylvania law applied. Tilbury's counsel then unearthed a Pennsylvania statute providing that an injured worker's employer has no liability to a third party tortfeasor, unless such liability is provided by a written contract entered into prior to the date of the worker's injury. Tilbury argued that because it signed Maxim's contract the day Gorski was injured, not the prior day, the indemnity contract was unenforceable.*fn1

Maxim then argued the choice-of-law provision was unenforceable on the facts of this case.

The trial court rejected Maxim's position, as follows:

"While the result might appear on first blush to be harsh in application . . . reflection on the facts that MAXIM (not TILBURY) drafted the contract, MAXIM (not TILBURY) chose to make Pennsylvania law applicable, and certainly MAXIM could have insisted on getting a signed contract in place the day before the work began, all weigh against the Court finding that California public policy considerations should be . . . a reason to deny the application of Pennsylvania law to . . . MAXIM's Cross-Complaint."

Tilbury later moved for attorney fees as the prevailing party, predicated on Maxim's contract, which contained a fee agreement. (See Civ. Code, § 1717 (§ 1717).)

Maxim contends some of the fees should be disallowed, because they were incurred solely to defend against Gorski's complaint, not against Maxim's cross-complaint. The trial court concluded the issues were "inextricably intertwined" and granted Tilbury's motion for attorney fees in full.

Maxim filed timely notices of appeal from the judgment and the attorney fee award.

DISCUSSION

I

Choice of Law

Touting California's strong public policy to ensure California workers are compensated for injuries occurring in California, Maxim asserts the trial court should have rejected the ...


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