Following settlement of the main action concerning a defective retaining wall, the defendants sought indemnity from a third‑party contractor for costs they were required to pay the plaintiffs.
The court had previously found the contractor liable for defective construction and awarded damages and substantial indemnity costs to the defendants in the third‑party trial.
The remaining issue was what portion of the plaintiffs’ settlement costs should be borne by the contractor under the contractual indemnity clause.
The court held that although the defendants failed to mitigate some damages and not all claims were attributable to the contractor, the contractor’s refusal to accept responsibility and failure to meaningfully participate in settlement significantly increased litigation costs.
Balancing those factors, the contractor was ordered to reimburse 75% of the plaintiffs’ costs paid by the defendants.
