NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

McKINSTER, Acting P. J.

INTRODUCTION

In this matter, we have reviewed the petition, the response filed by real party in interest Kiewit Pacific Company (Kiewit), and petitioner's reply. We have determined that resolution of the matter involves the application of settled principles of law, and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)

DISCUSSION

Plaintiffs have named real party in interest Kiewit as a codefendant responsible for the death of Dylan Flowers. Kiewit does not dispute that it was hired to do, and did, certain paving and related work at or near the accident site. Thus, plaintiffs necessarily assert that Kiewit's work was at least in part the cause of their damages. It is not possible to conceive of any liability on Kiewit's part that was not related to the contract performance.

Contrary to Kiewit's contention, the indemnification and defense clause in the contract does not require a "factual demonstration" that the claim is connected to the performance of the contract. It simply requires Kiewit to defend claims arising out of or in connection with its performance of this contract. The duty to defend does not depend on an eventual showing that the indemnitor is in fact responsible for the claimed damage. (Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541.)

Finally, Kiewit's belated attempt to rely upon Civil Code section 2782 fails. The contract expressly references that statute and disclaims any intent to exculpate petitioner or shift responsibility in violation of the law. The duty to indemnify is not yet at issue.

DISPOSITION

Accordingly, petitioner was entitled to summary adjudication that real party in interest Kiewit Pacific Company owes a present duty to defend petitioner in the underlying action. We decline to rule on the duration of said duty at this time.

Let a peremptory writ of mandate issue directing the Superior Court of San Bernardino County to vacate its order denying petitioner's motion for summary adjudication of Kiewit Pacific Company's duty to defend, and to enter a new order granting said motion to the extent and in the manner set forth in this opinion.

Petitioner is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.

Petitioner to recover its costs.

We concur:

KING, J.

MILLER, J.