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C.A. Files Three Opinions in Cases Arising From Mishap
Suit by Monster’s Spokesmodel Spawns Litigation Over Which Party Is Indemnitor, Which Is Indemnitee
By a MetNews Staff Writer
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Above is a publicity still of spokesmodel Magda Angel holding a can of Monster energy drink. She has sued Monster, which was television sponsor of a 2018 racing event, and also sued the organizer of the competition, based on having been struck by a vehicle at the starting line before the contest began. The Court of Appeal for this district has filed three opinions relating to indemnity issues generated by Angel’s lawsuit. |
Div. One of the Court of Appeal for this district has issued three opinions stemming from a lawsuit brought by a supermodel who was injured by a vehicle at the starting line of the 2018 Baja 1000 off-road race, holding that the promoter of the event has a duty to indemnify the maker of Monster energy drinks, the television sponsor; Monster might, in turn, have to cover any litigation losses by the promoter; and the driver has no duty to other defendants.
Justice Helen I. Bendix authored the opinions, all unpublished. Los Angeles Superior Court Judge Bruce G. Iwasaki weathered some but not all of the challenges to his rulings.
Spokesmodel Angel was seriously injured, undergoing surgery on her broken ankle as well as facial surgery as the result of the mishap. She is accusing Monster, as well as Promote Mexico which staged the event, of negligence in failing to create safe conditions.
Indemnification Clause
In Promote Mexico v. Monster Energy Company, B328413, filed Monday, Iwasaki’s order granting summary adjudication in favor of Monster was affirmed to the extent that the judge declared applicable broad language in ¶6.01 of a contract requiring that that Promote Mexico defend and indemnify Monster on a claim based on an “injury to any person…related to the Event,” caused by Promote Mexico.
Bendix agreed with Iwasaki that ¶6.01 prevails over another proviso, ¶6.11, relied upon by Promote Mexico, that says Monster “will be solely responsible for all wages, income taxes, worker’s compensation and any other requirements for all personnel it supplies pursuant to this Agreement.”
Bendix wrote:
“The items listed in paragraph 6.11—’wages, income taxes, worker’s compensation’—indicate the intent of the paragraph is to ensure that, by entering into the sponsorship agreements, Promote Mexico was not thereby taking on responsibility for paying salaries, taxes, workers’ compensation insurance premiums, and similar human resources concerns on behalf of Monster’s personnel. In other words, Promote Mexico was not becoming a quasi-employer of Monster’s personnel. The paragraph says nothing about liability for injuries, which instead is the subject of paragraph 6.01.” However, Bendix rejected the trial judge’s determination that the duty goes back to Jan. 15, 2019, when Promote Mexico was put on notice by Monster that it is asserting that it “has no responsibility or liability for the accident” suffered by Angel.
The jurist set forth:
“[T]o establish for purposes of summary adjudication a trigger date of January 15, 2019, Monster at minimum would need to offer evidence that as of that date, Angel had made some sort of prelitigation claim, demand, or similar request against Monster implicating Promote Mexico’s conduct….
“Monster did not meet this burden. The record contains no evidence of communications between Monster and Angel or her representatives in which Angel made a prelitigation claim, demand, or similar request against Monster at all, much less one that alleged Promote Mexico was responsible for her injuries or otherwise implicated Promote Mexico’s conduct.”
What the “trigger date” was, Bendix said, is an issue to be decided at trial.
Order for Payment
Bendix also declared that Iwasaki erred in ordering that Promote Mexico pay Monster’s past and future legal defense costs. This, she said, went beyond what Monster had asked to be adjudicated: that Promote Mexico has a duty to defend it.
The justice agreed with the trial court judge that waivers signed by six drivers for Monster’s own team releasing it from liability were irrelevant. She explained:
“Promote Mexico provided no evidence Monster had granted the drivers power to alter Monster’s legal relationship with Promote Mexico, or that the drivers were fiduciaries as to Monster. Nothing in the waiver itself indicates an intent to bind Monster….Although the drivers may work for or be affiliated with Monster, that alone is not enough to establish agency.”
Second Opinion
In Promote Mexico v. Superior Court, B332617, also filed Monday, Div. One granted a writ of mandate sought by Promote Mexico directing that the Los Angeles Superior Court vacate its order denying summary adjudication that Monster must defend it. Under a defense and indemnity provision in a television sponsorship agreement, Monster must defend Promote Mexico if a claim arises from Monster’s gross negligence.
“Although the effect of these provisions in this case is the parties will have overlapping and reciprocal obligations to defend the other, this outcome is compelled by the plain language of the agreement,” Bendix observed.
She declared:
“Here, the agreement clearly and explicitly requires Monster to defend Promote Mexico from claims arising from Monster’s gross negligence.”
Bendix specified that, at trial, “if a finder of fact found that Promote Mexico’s actions, negligent or not, contributed to death or injury at the race, but Monster, while at fault, was not grossly negligent, Promote Mexico would have to indemnify Monster, but not vice versa.”
The opinion instructs that, on remand, the Superior Court consider Monster’s contention that the signature of Promote Mexico’s representative on the agreement was forged.
Third Opinion
In Langley v. Superior Court of Los Angeles County, B333431, filed last Thursday, Bendix, as acting presiding justice, wrote that Morgan Langley, the driver in the 2018 race whose vehicle hit Angel, is entitled to a wit of mandate directing that the Superior Court vacate Iwasaki’s order summarily adjudicating that he has a duty to defend Promote Mexico and its owner, Roger Norman, in the personal injury lawsuit.
The driver signed a release saying that he “will not make any claim against, sue, or attach the property of...Promote Mexico” or other releasees “for any injury or damage resulting from the negligence or other acts, howsoever caused, by any of the Releasees as a result of my participation in the” race,” adding:
“I hereby agree to release, discharge, defend, indemnify and hold Releasees harmless from all liability, actions, claims, demands, charges, expenses, attorney’s fees of any nature that I…now have or may hereafter have for injury or damage resulting from, related to or connected with my participation in the Event and Related Activities, associated functions and use of the facilities.”
Bendix said:
“[T]he language of the release requires Langley to defend Promote Mexico and Norman from actions, claims, demands, and so forth that Langley or specified individuals affiliated with him ‘have.’ It is undisputed that Angel is not one of the specified individuals affiliated with Langley. Her claims, therefore, are not claims that Langley and his affiliated individuals ‘have,’ and Langley owes no duty to defend Promote Mexico and Norman against them.”
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