Glover v. American Rentals, et al.

Outcome: Full dismissal of my client for a waiver of costs.

Description: This case involved a plaintiff who was operating a flail mower attached to a John Deere skip-loader tractor when a projectile was thrown from the mower and struck the plaintiff in the head and lodged in his brain, causing traumatic brain injuries. The plaintiff was an employee of my client (ACCU Construction, Inc.) at the time of his accident and therefore he could not sue my client because of the exclusive remedy rule under the Labor Code. My client was sued on a cross-complaint, however, and was required to defend itself against the cross-action filed by the equipment rental company who rented the mower to my client. The only theory the rental company had against my client was to claim that an indemnity provision contained on the reverse side of the rental receipt (in fine-print boiler-plate language)--that was never read or signed by any officer of my client's corporation--required my client to contractually indemnify the rental company against any judgment or settlement obtained against the rental company. We presented numerous defenses related to the unenforceability of the alleged indemnity agreement on grounds the agreement was not properly executed under Labor Code section 3864; that the contract was adhesive, and unenforceable because it was both procedurally and substantively unconscionable. At mediation the mediator agreed with our position that ACCU Construction was not liable for any amount of damages (either directly to plaintiff or on the express indemnity claim) because the alleged indemnity contract would be unenforceable. Consequently, the rental company agreed to release my client from the litigation for a waiver of costs and my client got out of the case without paying anything.