California, United States of America
The following excerpt is from Herman Christensen & Sons, Inc. v. Paris Plastering Co., 132 Cal.Rptr. 86, 61 Cal.App.3d 237 (Cal. App. 1976):
In Goldman v. Ecco-Phoenix Elec. Corp., supra, on which the court relied for the creation of the third class of agreement, there was no express indemnity clause in the contract between the contractor who claimed indemnity, and the subcontractor whose employee was injured (62 Cal.2d at p. 42, fn. 1, 41 Cal.Rptr. 73, 396 P.2d 377). The contractor relied upon the subcontractor's promise to be bound toward it to the same extent as the contractor was bound to the owner under the general contract 'to the extent of the work provided for in this agreement.' The court applied the following test: 'In view of the general rule that an implied indemnity does not reach to protect the indemnitee from a loss to which his negligence has contributed, we must look at least for an express undertaking in the document that he is to do so. If one intends to do more than merely incorporate the general rule into the written
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