I dissent.
(1) I concur in the portion of Justice Dunn’s opinion that holds that any defect in joining Transport Indemnity is not now significant. The trial court sustained a general demurrer on the authority of Lan Franco. The special demurrer, to which Justice Jefferson refers, was thereby rendered immaterial. If the case is remanded, Transport Indemnity may, if it still so desires, press its contention of uncertainty and secure a formal amendment, stating expressly what is clearly inferred, namely that both Transports were agents of each other. The omission of that formal allegation is no ground for affirming a general demurrer.
(2) I agree with Justice Jefferson that, under the authority of the cases he cites, Tanner and both Transports had a duty toward Security not to take affirmative action that impaired the subrogation rights of Security as the ultimate insurer.
(3) I base my dissent on my view that Tanner did have a potential cause of action against Flxible, and that Lan Franco is distinguishable. In Lan Franco, an injured train passenger sued the Santa Fe Railroad and a truck driver; the railroad cross-complained against the truck driver and his employer, alleging that the railroad was only passively negligent but that it was liable, if at all, only because of the high duty of care to its passengers, whereas the truck driver was actively and primarily negligent. Lan Franco is analogous to the case at bench only in that, in both *1022cases, the party seeking (or alleged to have) indemnity was a common carrier, subject to the high duty of care imposed on such carriers. It differs from the case at bench in one essential element — namely whether the indemnitee was actively or passively in violation of that duty. In Lan Franco, the appellate court held that, on the pleadings before it, it appeared that the railroad had been actively negligent, saying (at pp. 889 and 890):
“In the event Santa Fe is determined to be liable . . . such liability could only attach because of its own delict in operating or maintaining its train and signal equipment — not because of any wrong on the part of [the truck driver].
“The trial court acted with propriety in sustaining the demurrer to the cross-complaint inasmuch as an action for indemnity may be dismissed where the facts pleaded reflect that the claimant was concurrently and actively negligent....”
In the case at bench, liability to Gelfand was sought to be imposed only on the high duty of a carrier to its passenger. Tanner was not charged with any negligence in operating or maintaining its bus. Since the facts pleaded, unlike those in Lan Franco, do not show that Tanner actively or affirmatively participated in the injury to Gelfand, plaintiff has stated a case in which Tanner did have a right to claim indemnity from Flxible.
It follows, on the facts now before us, Tanner did have a right of indemnity against Flxible, that Tanner’s insurer would have been subrogated to Tanner’s indemnity rights, and that, as Transport’s insurer, and the ultimate insurer, that right of subrogation may be asserted by Security.
Security also states a cause of action against Longnecker. The complaint alleges that Longnecker was hired in part to protect Security’s interests. Although facts brought out at the trial may or may not support this allegation, for purposes of demurrer, plaintiff’s allegations must be accepted as true. Thus, Lpngnecker’s argument that he cannot be guilty of legal malpractice to plaintiff, because a cause of action for legal malpractice may not be assigned is of little aid to Longnecker. Plaintiff does not rely on any effort to “assign” a cause of action for legal *1023malpractice, but seeks to create liability based on Longnecker’s direct duty to plaintiff. If a client retains an attorney to protect others, those others have a right to sue the attorney for malpractice (Heyer v. Flaig (1969) 70 Cal.2d 223 [74 Cal.Rptr. 225, 449 P.2d 161]) and Security alleges that the attorney was hired to protect its interest.
(4) Since my colleagues affirm the trial court in sustaining the demurrer on the authority of Lan Franco, they do not reach the issue of the statute of limitations. Since I differ from them in that aspect of the case, I must deal with that issue. I conclude that the statute does not bar the present action.
All defendants allege that the complaint is barred by the statute of limitations. (Code Civ. Proc., § 337.) Where one party is under a duty to indemnify another, the cause of action-does not accrue until the second party has been damaged by paying the amount for which the indemnity is sought. (Gribaldo, Jacobs, Jones & Associates v. Agrippina Versicherunges, A. G. (1970) 3 Cal.3d 434 [91 Cal.Rptr. 6, 476 P.2d 406].) Also, a cause of action for malpractice does not occur until the client suffers damages. (Budd v. Nixen (1971) 6 Cal.3d 195 [98 Cal.Rptr. 849, 491 P.2d 433].) Thus, under either the malpractice theory or the indemnification theory, the causes of action did not accrue until payment was made and they are not barred by the statute of limitations.
Defendants distinguish Gribaldo on the grounds that Gribaldo was a contract to indemnify against loss or damages, rather than, as here, a contract to indemnify against liability. Although the contracts were in fact different in this respect, that difference is insufficient reason to avoid the rule of Gribaldo. Although that case did not deal with the statute of limitations or with the issue of when a cause of action accrues, its holding that an indemnitor is not liable for a claim until the indemnitee suffers the loss by being compelled to pay the claim, applies as well to determining when a cause of action arises.
The judgment (order of dismissal) should be reversed.
A petition for a rehearing was denied February 24, 1977, and appellant’s petition for a hearing by the Supreme Court was denied April 7, 1977.