Advent, Inc. v. National Union Fire Insurance Co. of Pittsburgh

Filed 12/6/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
ADVENT, INC., H041934
(Santa Clara County
Plaintiff, Super. Ct. No. 1-13-CV238904)
v.
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA,
Defendant and Respondent;
TOPA INSURANCE COMPANY,
Intervener and Appellant.
Advent, Inc. (Advent) was hired as the general contractor for the Aspen Family
Village project in Milpitas, California. Advent subcontracted with Pacific Structures,
Inc. (Pacific). In turn, Pacific subcontracted with Johnson Western Gunite (Johnson).
Advent was covered by an insurance policy issued by Landmark American Insurance
Company (Landmark) and an excess insurance policy issued by appellant Topa Insurance
Company (Topa). Johnson was covered by primary and excess insurance policies issued
by respondent National Union Fire Insurance Company of Pittsburgh, PA (National
Union).
While construction on the project was underway, a Johnson employee, Jerry
Kielty, fell down an unguarded stairway shaft at the project site and sustained serious
injuries. Kielty sued Advent, and Advent tendered its defense to its various insurance
companies and to National Union. National Union initially refused the tender but later
accepted it under a reservation of its rights. Kielty settled his action for a sum of
$10 million. Various insurers, including Topa and National Union (under its primary
policy), contributed to the settlement. National Union continued to reserve its rights
during the settlement process, and it did not provide coverage under its excess policy.
Advent initiated this underlying action when it sued National Union, seeking a
declaration that it was an “additional insured” under National Union’s excess policy.
Topa successfully intervened in the action, seeking declaratory relief, equitable
contribution from National Union, and equitable subrogation. Advent moved for
summary judgment, which was denied. Advent then dismissed its complaint against
National Union with prejudice. Subsequently, Topa and National Union filed
cross-motions for summary judgment. The trial court denied Topa’s motion and granted
National Union’s motion. Judgment was entered in favor of National Union, and Topa
appealed. As we explain below, we find that the trial court did not err when it granted
National Union’s motion for summary judgment. We affirm.
BACKGROUND
A. The Contractor and Subcontractors
Advent was hired by Global Premier Development, Inc. and Aspen Construction
Management, Inc., to be the general contractor for the Aspen Family Village project in
Milpitas, California. Advent subcontracted with Pacific. In turn, Pacific subcontracted
with Johnson to furnish and install shotcrete for the perimeter walls of the project.
B. The Subcontracts
i. The Advent/Pacific Subcontract
Advent subcontracted with Pacific on January 14, 2008 (Advent/Pacific
subcontract). The subcontract set forth certain definitions. “Contractor” referred to
Advent. “Subcontractor” referred to Pacific. “Sub-subcontractor” was defined as any
subcontractor, architect, engineer, surveyor, laborer, or material man hired or employed
by the subcontractor (Pacific). The term “Subcontract” or “Contract” referred to “this
2
Subcontract [meaning the Advent/Pacific subcontract], including all Plans,
Specifications, General Conditions, Supplemental General Conditions, Special
Conditions, Amendments and all other documents issued by the Contractor and/or
prepared by the Architect for the Project.” Pacific was to be paid $6,275,000 for its work
under the subcontract.
The Advent/Pacific subcontract contained a provision regarding insurance. The
provision stated, “Minimum insurance requirements are: General Liability of
$1,000,000 . . . Workers Compensation. General Liability . . . must have endorsements
showing the Owner, Contractor [Advent] and Lender as Additional Insured, primary as to
any and all claims, and any insurance maintained by Contractor shall be excess and
noncontributory.”
ii. The Pacific/Johnson Subcontract
Pacific entered into a subcontract with Johnson on February 7, 2008
(Pacific/Johnson subcontract). The Pacific/Johnson subcontract referred to Johnson as
the “subcontractor.” It also provided that Johnson would be working on structural
shotcrete for the Aspen Family Village project and would be paid $289,000. Further, it
referenced the Advent/Pacific subcontract as the “original Contract” or just the
“Contract.”
Exhibit D of the Pacific/Johnson referenced insurance. In a paragraph, it stated:
“A. Insurance Requirements: All subcontractors must provide Insurance Certificates as
designated in the Subcontract, naming parties listed on the attached sheet as additional
insured. Original signatures are required on all insurance certificates. Insurance
certificates must be submitted to Advent prior to commencement of work under this
Subcontract.” The attached sheet required Johnson to submit certificates of liability
insurance to Advent and required that Advent be listed as an additional insured.
3
Despite the language of exhibit D and its attached sheet, the subcontract between Pacific
and Johnson did not actually designate anything about insurance.
C. The Various Insurance Policies
i. The Landmark Policy
Advent was insured by Landmark under a $1 million general commercial liability
policy, which was in effect at the time of the accident.
ii. The Topa Policy
Advent was also insured by Topa under a $5 million excess commercial general
liability policy, which was in effect at the time of the accident.
The Topa excess policy provides that its excess liability indemnity extends to
“indemnify the insured for the amount of loss which is in excess of the applicable limits
of liability, whether collectible or not, of the Underlying Insurance inserted in Item 6 of
the Declarations . . . .” Item 6 of the declarations lists, as the general liability policy, the
Landmark policy. “Loss” is defined as “the sum paid in settlement of losses for which
the insured is liable after making deduction for all recoveries, salvages or other insurance
(other than recoveries under the policy of the Underlying Insurance) whether recoverable
or not, and shall include all expenses and ‘costs.’ ”
iii. The National Union Policies
Johnson was insured by National Union under a $1 million primary general
liability policy, which was in effect at the time of the accident. The policy was amended
to include, as additional insureds, those “where required by written contract.”
Johnson was also insured by National Union under a $15 million excess liability
policy that was in effect at the time of the accident. The excess liability policy stated that
“insured” meant “any person or organization, other than [Johnson], included as an
additional insured under [the National Union primary policy], but not for broader
coverage than would be afforded by [the primary policy].”
4
The National Union excess policy expressly states that National Union “will not
make any payment under [the excess] policy unless and until: [¶] 1. the total applicable
limits of Scheduled Underlying Insurance have been exhausted by the payment of Loss to
which this policy applies and any applicable, Other Insurance have been exhausted by the
payment of Loss . . . .” “Other Insurance” is defined as “a valid and collectible policy of
insurance providing coverage for damages covered in whole or in part by this policy.”
D. The Accident
The undisputed facts of the accident giving rise to this insurance coverage action
are as follows: At around 11:40 a.m. on August 22, 2008, Jerry Kielty, who was
employed by Johnson, was working as a cement pump operator. At around noon, the
Johnson foreman directed Kielty to retrieve a piece of plywood that had been left outside
between buildings 60 and 70. The path to retrieve the plywood was completely outside.
Later, a driver of a cement truck reported that he had seen Kielty enter building 70. The
driver did not see Kielty leave the building. Between noon and 1:00 p.m., the Johnson
supervisor sent the foreman to find Kielty. The foreman searched the areas between
buildings 60 and 70. He did not find Kielty. At approximately 1:15 p.m., two Helix
Electric employees said that they heard something fall in the garage area. At around
1:35 p.m., while searching for a ladder inside building 70, a Pacific employee found that
Kielty had fallen in the stairwell area of the building. At the time, Johnson was not
performing any work in the interior of the building. Kielty suffered severe injuries as the
result of the fall and could not remember how he fell.
E. The Kielty Action
On March 27, 2009, Kielty filed an action in Santa Clara County Superior Court
(Kielty et al. v. Advent, Inc. et al., Sup. Ct. No. 1-08-CV122946) (Kielty Action) seeking
damages for the injuries he had sustained in the accident. Kielty named, among others,
Advent as a defendant. Kielty alleged that he fell down the unguarded stairwell as a
5
result of the negligence of the named defendants, including Advent. Kielty did not name
Johnson as a defendant.1
Advent tendered its defense to its insurers and included National Union. Advent
contended that it was an additional insured under the policies issued by National Union to
Johnson. National Union initially refused the tender but later agreed to share the cost of
defending Advent under a reservation of its rights.
Advent’s answer alleged that Kielty was negligent and that other parties or third
parties not a part of the action were responsible for the damages incurred by Kielty.
F. Advent’s Cross-complaint
Advent and Global cross-complained against Johnson for express indemnity under
the contract between Pacific and Johnson, breach of contract, equitable indemnity,
contribution, declaratory relief, and negligence. In part, Advent alleged that Kielty’s
injuries were sustained as a result of Johnson’s negligence, carelessness, tortious acts, or
other acts or omissions by Johnson and its employees, which included Kielty.
Advent and Johnson moved for summary judgment on the cross-complaint. The
trial court denied Advent’s motion for summary judgment, finding that Johnson did not
have a duty to indemnify Advent. The Advent subcontract had an indemnity provision.
However, the trial court concluded that the Pacific/Johnson subcontract had no
indemnification language and could not be reasonably interpreted as incorporating the
indemnity provisions in the Advent/Pacific subcontract. Additionally, the trial court
noted that Kielty did not allege that Johnson was liable for his injuries. Kielty’s
complaint did not allege that Johnson was responsible for the stairwell shaft where he fell
or that anyone employed by Johnson had directed him to enter the building.
1
At some point, Kielty made a successful worker’s compensation claim with
Johnson.
6
Furthermore, with respect to Advent’s cause of action for breach of contract, the
court found that Johnson had met its initial burden by supplying an insurance certificate
showing that Johnson had complied with the requirement to provide insurance to Advent.
The trial court granted Johnson’s motion for summary judgment, and Advent
dismissed Johnson from the Kielty Action with prejudice.
G. Kielty’s Settlement
Kielty entered into a partial settlement in the Kielty Action for $10 million. Under
the settlement, Landmark paid $1 million, Topa paid $5 million, National Union paid
$1 million, and the remainder was paid by other insurers. During the settlement process,
National Union continued to reserve its rights under both its primary and excess policies.
The settlement agreement stated that its payment was made “on behalf of its insured
[Johnson] and alleged insureds Advent, Global and [Pacific].”
As part of the settlement, Kielty agreed to stay the action pending a determination
of whether Advent was an additional insured under National Union’s policies. If it was
determined that Advent was not an additional insured under National Union policies,
Kielty agreed to dismiss all claims against Advent with prejudice. If, however, it was
determined that Advent was an additional insured under National Union’s policies, the
stay would be lifted and trial would proceed against Advent only.
H. The Present Action
After the partial settlement, Advent initiated this present action by suing National
Union for declaratory relief. Advent sought a declaration that it was an additional
insured under National Union’s $15 million excess policy.
Advent moved for summary judgment, which was denied. The trial court cited to
some procedural defects with Advent’s motion, but also noted that it was “not persuaded
that Advent’s interpretation of the relevant documents establishes that it is entitled to the
declaration it is seeking.” Afterwards, Advent dismissed its complaint against National
7
Union with prejudice. Kielty thereafter dismissed his action against Advent, making the
partial settlement the full and final settlement of the Kielty Action.
Before the denial of Advent’s motion for summary judgment and the dismissal of
Advent’s complaint, Topa intervened in the action, seeking equitable contribution for its
$5 million contribution to the settlement. Topa asserted claims against National Union
for equitable contribution, equitable subrogation, and declaratory relief.
Thereafter, Topa and National Union filed cross-motions for summary judgment.
Topa alleged that Advent is an additional insured under both of Johnson’s
National Union policies under the insurance requirements in the subcontract between
Pacific and Johnson. In support of this proposition, Topa pointed to the language of the
National Union policies, the Advent/Pacific subcontract, and the Pacific/Johnson
subcontract. Topa argued that based on the wording of the Pacific/Johnson subcontract,
Johnson was required to add Advent as an additional insured under its primary policy
with National Union. As a result, National Union’s excess policy provided coverage to
Advent. Topa also alleged that there was coverage under National Union’s policies,
because the undisputed facts demonstrated a potential that Johnson (or Kielty himself)
contributed to Kielty’s injuries.
In its opposition to Topa’s motion for summary judgment, National Union argued
that Johnson never agreed to provide Advent with additional insurance coverage based on
the language of the Pacific/Johnson subcontract, National Union’s excess policy was in
excess of Topa’s policy and therefore did not apply, and, regardless, Topa failed to
demonstrate that there was actual coverage rather than potential coverage, as the issue
here was one of indemnity and not defense.
National Union, in its motion for summary judgment, echoed many of the same
arguments that were contained in its opposition to Topa’s motion for summary judgment.
National Union claimed that it was entitled to judgment in its favor because the
8
subcontract between Johnson and Pacific did not require Johnson to purchase additional
insured coverage for Advent. Further, National Union argued that even if Johnson was
required to purchase additional insured coverage for Advent, coverage would apply only
if Johnson’s acts or omissions caused Kielty’s injuries, which also had to be incurred
during the performance of Johnson’s ongoing operations for Advent. National Union
maintained that these conditions were not present.
Finally, National Union asserted that the excess additional insured coverage could
not be broader than the coverage available under the primary policy, and the primary
policy here applied only “where required by written contract.” National Union insisted
that the primary policy had a limit of $1 million. Therefore, total additional insured
coverage (if any existed) could not exceed $1 million. And Advent had its own excess
insurance through Topa, which properly paid Kielty’s claim.
After considering the parties’ arguments, the trial court granted National Union’s
motion and denied Topa’s motion. As to Topa’s first cause of action seeking a
declaration that Advent was an additional insured under National Union’s excess policy,
the trial court concluded that the language of the policies did not support Topa’s
interpretation that Advent was an additional insured. Namely, the subcontract between
Pacific and Johnson could not be reasonably interpreted as incorporating by reference the
insurance requirements in the Advent/Pacific subcontract. Further, the Pacific/Johnson
subcontract did not include an express insurance requirement of any kind. The only
reference in the Pacific/Johnson subcontract to insurance was the generic reference in
exhibit D that required subcontractors to provide insurance certificates as designated in
the subcontract. The trial court concluded that “[p]oor drafting of contract language by
Advent and/or [Pacific] cannot be construed against [Johnson].” Therefore, the trial court
determined that Topa failed to show that there was a written contract that required
9
Johnson to name Advent as an additional insured on any specific policy type. The trial
court also concluded that Kielty never alleged that Johnson was at fault for his accident.
As to Topa’s claims of equitable contribution and equitable subrogation, the trial
court determined that the same evidence supporting its conclusion that Topa’s
sought-after declaration that Advent was an additional insured under the National Union
excess policy also supported the conclusion that the equitable claims failed.
Judgment was entered in favor of National Union. Topa appealed.
DISCUSSION
Topa argues that the trial court erred when it granted summary judgment in favor
of National Union. We conclude the court did not err.
1. Overview of Summary Judgment Motions and Standard of Review
“[W]here the plaintiff has . . . moved for summary judgment . . . [it] has the
burden of showing there is no defense to a cause of action. (Code Civ. Proc., § 437c,
subd. (a).) That burden can be met if the plaintiff ‘has proved each element of the cause
of action entitling [it] to judgment on that cause of action.’ (Code Civ. Proc., § 437c,
subd. (p)(1).) If the plaintiff meets this burden, it is up to the defendant ‘to show that a
triable issue of one or more material facts exists as to that cause of action or a defense
thereto.’ (Code Civ. Proc., § 437c, subd. (p)(1).)” (S.B.C.C., Inc. v. St. Paul Fire &
Marine Ins. Co. (2010) 186 Cal.App.4th 383, 388.)
“A defendant or cross-defendant has met his or her burden of showing that a cause
of action has no merit if that party has shown that one or more elements of the cause of
action, even if not separately pleaded, cannot be established, or that there is a complete
defense to that cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) Once the
defendant or cross-defendant has met this initial burden, the burden shifts to the plaintiff
to produce admissible evidence showing that a triable issue exists. (Ibid.)
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“The fact that both parties moved for summary judgment does not conclusively
establish the absence of a triable issue of fact; the trial court must independently
determine the motions.” (Tahoe Regional Planning Agency v. King (1991) 233
Cal.App.3d 1365, 1375, fn. 2.) We may affirm on any legally correct ground, “regardless
of the grounds relied upon by the trial court.” (Becerra v. County of Santa Cruz (1998)
68 Cal.App.4th 1450, 1457.)
2. Overview of Topa’s Claims
Topa’s complaint-in-intervention alleged three causes of action: (1) a cause of
action for declaratory relief seeking a declaration that Advent was an additional insured
under National Union’s excess policy, Advent was entitled to coverage under the excess
policy, and Topa is entitled to reimbursement for a portion of the settlement that Topa
paid; (2) a cause of action for equitable contribution, and (3) a cause of action for
equitable subrogation.2
“Equitable contribution apportions costs among insurers sharing the same level of
liability on the same risk as to the same insured, and is available when several insurers
are ‘ “obligated to indemnify or defend the same loss or claim, and one insurer has paid
more than its share of the loss or defended the action without participation by the
others.” . . . “The purpose of this rule of equity is to accomplish substantial justice by
equalizing the common burden shared by coinsurers, and to prevent one insurer from
profiting at the expense of others.” ’ ” (Safeco Ins. Co. of America v. Superior Court
(2006) 140 Cal.App.4th 874, 879 (Safeco).)
2
Topa made no argument in the trial court and no argument on appeal regarding
its cause of action for equitable subrogation. We therefore deem this issue waived.
(Rutledge v. Hewlet-Packard Co. (2015) 238 Cal.App.4th 1164, 1171, fn. 3.)
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3. Coverage for Injuries “Caused By” Johnson or Those Acting on Johnson’s Behalf
First, Topa argues that the trial court erred in rejecting its argument that exhibit D
in the Pacific/Johnson subcontract’s statement that Johnson was to provide insurance
certificates as designated in the “Subcontract” referred to the Advent/Pacific subcontract.
National Union, however, maintains that even if we were to find that the trial court erred
in concluding that the Pacific/Johnson subcontract is not reasonably susceptible to Topa’s
interpretation, summary judgment was still properly granted in its favor because Topa
failed to show that Kielty’s injuries were caused by Johnson. Absent causation by
Johnson, National Union’s excess policy would not afford Advent with coverage. As we
explain below, we agree with National Union’s argument on this point and find that this
issue is dispositive.
a. Burdens of Proof in Equitable Contribution Claims
Before we address the merits of National Union and Topa’s appellate arguments
regarding coverage, we first review the applicable burdens of proof that must be met by
parties moving for summary judgment in an equitable contribution action. On appeal, the
parties dispute a critical issue: whether Topa bore the burden to prove that Kielty’s
accident was actually covered by National Union’s policies, or whether National Union
bore the burden to prove that Kielty’s accident was not actually covered.
“An insurer’s duty to indemnify ‘runs to claims that are actually covered, in lights
of the facts proved. . . . By definition, it entails the payment of money in order to resolve
liability. . . . It arises only after liability is established.’ ” (Safeco, supra, 140
Cal.App.4th at p. 880.) “By settling, however, the parties forgo their right to have
liability ‘established’ by a trier of fact, and the settlement ‘becomes presumptive
evidence of the [insured’s] liability and the amount thereof, which presumption is subject
to being overcome by proof. . . . “A contrary rule would make the right to settle
meaningless.” ’ ” (Ibid.)
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Topa argues that under Safeco, supra, 140 Cal.App.4th 874, it only needed to
demonstrate a potential for coverage under National Union’s excess policy. Thereafter,
the burden shifted to National Union to show, as an affirmative defense, that coverage did
not exist.
In Safeco, the plaintiff (the settling coinsurer) sued the nonparticipating coinsurer
for equitable contribution and declaratory relief, alleging that the nonparticipating
coinsurer had breached its duty to defend and was thus obligated to reimburse the settling
coinsurer for its share of the defense and settlements. (Safeco, supra, 140 Cal.App.4th at
p. 877.) The settling coinsurer moved for summary judgment, or summary adjudication,
on its claims. The nonparticipating coinsurer responded by arguing that the settling
coinsurer had to prove both that the nonparticipating coinsurer had a duty to defend based
on a potential for coverage and that there was, in fact, actual coverage under the
nonparticipating coinsurer’s policies. (Id. at p. 878.) The trial court denied the settling
coinsurer’s motion for summary judgment, siding with the nonparticipating coinsurer that
the settling coinsurer had to prove that it was entitled to contribution as a matter of law.
(Ibid.) The settling coinsurer filed a petition for writ of mandate challenging the trial
court’s ruling.
The appellate court agreed with the settling coinsurer and rejected the
nonparticipating coinsurer’s argument that the settling insurer bore the burden of proving
that the coinsurer had a duty to indemnify their mutual insureds. (Safeco, supra, 140
Cal.App.4th at p. 880.) The Safeco court reasoned that a nonparticipating coinsurer
waives its right to challenge the reasonableness of a settlement amount with the insured.
(Id. at p. 881.) The nonparticipating coinsurer, however, does not waive its right “to raise
other coverage defenses as affirmative defenses in a contribution action—which means,
of course, that the recalcitrant coinsurer has the burden of proof on those issues.” (Ibid.)
Therefore, the Safeco court held that “in the circumstances of [their] case—where [the
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nonparticipating coinsurer’s] duty to defend is undisputed, and where by law the
settlements are presumptively reasonable—the burden of proof is on [the nonparticipating
coinsurer] to establish that there was no coverage (and not on the [settling coinsurer] to
prove the opposite).” (Ibid.) Therefore, the appellate court granted the settling
coinsurer’s petition for a writ of mandate to the extent that it sought a determination that
the settling coinsurer had met its burden by showing a potential for coverage, and the
burden then shifted to the nonparticipating coinsurer to prove the absence of actual
coverage.
National Union rejects the application of the burden-shifting principles enunciated
in Safeco, arguing that Safeco is factually distinguishable because it involved primary
insurers not excess insurers, and because the public policy that supported the shifting of
burdens in Safeco is not present in this current situation. Unlike the nonparticipating
coinsurer in Safeco, National Union provided a defense under its primary policy and paid
$1 million under its primary policy toward the settlement of the Kielty Action. National
Union maintains that because Topa seeks contribution from National Union’s excess
policy, adhering to the principle that Topa must prove existence of actual coverage would
not “encourage insurance companies to disavow their contractual responsibilities to their
insureds [citation] and, by extension, their responsibilities to coinsurers.” (Safeco, supra,
140 Cal.App.4th at p. 881.)
We agree with National Union that Safeco is factually distinguishable. As
National Union points out, National Union tendered a defense under its primary policy.
It is therefore not like the nonparticipating coinsurer in Safeco who refused to tender its
insured a defense and thereafter refused to contribute to the settlement. Rather, the
dispute here concerns whether National Union’s excess policy provides coverage to
Advent for Kielty’s injuries. Additionally, unlike Safeco, National Union’s duty to
defend was disputed below. Although National Union accepted tender of Advent’s
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defense, it did so under a reservation of rights and never conceded that it was obligated to
defend Advent in the Kielty action.
Despite these factual distinctions, we find the rationale behind the burden-shifting
in Safeco to be applicable here. First, we note that the discussion of “burdens” is
complicated by the fact that both Topa and National Union filed motions for summary
judgment, or in the alternative, summary adjudication, below. These cross-motions for
summary judgment are crucial to understand each party’s burden of proof. That is
because the burdens allocated to parties are, in part, dictated by whether a party is
bringing the motion for summary judgment or opposing the motion for summary
judgment.
Take Safeco as an example. In Safeco, the moving party was the settling
coinsurer. Under the general principles governing summary judgment motions, the
settling coinsurer (as the moving party) bore the burden to make a prima facie showing in
its motion that there was no triable issue of material fact, it was entitled to judgment as a
matter of law, and there was no defense to the cause of action. (Code Civ. Proc., § 437c,
subds. (c) & (p)(1).) As articulated above, Safeco held that the settling coinsurer met its
initial burden on its summary judgment motion by making a prima facie showing that
there was coverage under the nonparticipating coinsurer’s policy (which was satisfied by
showing that there was a potential for coverage). In other words, the settling coinsurer
did not have to go out of its way to negate an affirmative defense such as lack of
coverage.
Like the settling insurer in Safeco, Topa bore the burden on its motion for
summary judgment to make a prima facie showing that there was no triable issue of
material fact—that actual coverage existed under National Union’s excess policy. “A
prima facie showing is one that is sufficient to support the position of the party in
question.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851.) Certainly, in
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cases where the plaintiff has not settled the case, liability would often be conclusively
established by the ensuing trial’s outcome. A trier of fact would determine which insured
(or insureds), if any, are liable for the plaintiff’s injuries. Here, however, Kielty settled
the action before it went to trial. “By settling . . . the parties forgo their right to have
liability ‘established’ by a trier of fact, and the settlement ‘becomes presumptive
evidence of the [insured’s] liability and the amount thereof, which presumption is subject
to being overcome by proof.’ ” (Safeco, supra, 140 Cal.App.4th at p. 880.) In this case,
National Union continued to reserve its rights throughout the settlement process, so the
settlement cannot be used as presumptive evidence that National Union’s policy applies.
What we are left with are the allegations in Kielty’s complaint and the parties’
undisputed facts recounting the accident. From this, we believe that Topa can satisfy its
initial burden to make a prima facie showing of actual coverage if it can demonstrate a
potential for coverage based on known extrinsic facts and the allegations of the
complaint. As noted by Safeco, this is the same as the potential liability triggering a duty
to defend. (Safeco, supra, 140 Cal.App.4th at p. 879.)
Similarly, National Union, on its motion for summary judgment, bears the initial
burden to show that a cause of action cannot be established or that there is a complete
defense to Topa’s causes of actions. (Code Civ. Proc., § 437c, subd. (p)(2).) National
Union could achieve this by presenting affirmative evidence negating an essential
element of Topa’s claim. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.)
Alternatively, National Union could also meet its initial burden by proving each element
of an affirmative defense to Topa’s claim of coverage, such as the affirmative defense
that there was no actual coverage. (Safeco, supra, 140 Cal.App.4th at p. 878
[characterizing absence of actual coverage as an affirmative defense to equitable
contribution].) If National Union meets this burden, the burden would shift to Topa to
16
produce admissible evidence showing that a triable issue of fact exists. (Code Civ. Proc.,
§ 437c, subd. (p)(1).)
Applying these principles, we come to the following conclusion: Topa is correct
that in order to satisfy its initial burden on its motion for summary judgment, it had to
make a prima facie showing of actual coverage. (In other words, Topa must show that
there is a potential for coverage.) The burden would then shift to National Union to
demonstrate that there is a triable issue of material fact—that there is evidence or a
reasonable inference showing that there is no actual coverage. On the other hand, when
National Union moves for summary judgment, it must satisfy its initial burden by
showing there are undisputed facts supporting each element of its affirmative defense of
lack of coverage. Once National Union has satisfied this initial burden, Topa must prove
that a triable issue of material fact exists—again, that there is evidence or a reasonable
inference that there is coverage.
b. Application to this Case
With these concepts in mind, we first evaluate whether National Union met its
initial burden on its motion for summary judgment to demonstrate that coverage cannot
be established. We find that based on the undisputed facts in the record, National Union
met its initial burden.
According to the National Union primary policy, coverage for additional insured
extends only “with respect to liability for ‘bodily injury,’ ‘property damage’ or ‘personal
and advertising injury’ caused, in whole or in part, by: [¶] 1. Your [Johnson’s] acts or
omissions; or [¶] 2. The acts or omissions of those acting on your [Johnson’s] behalf; [¶]
in the performance of your [Johnson’s] ongoing operations for the additional insured(s) at
the location(s) designated above.”
The National Union excess policy provides that National Union “will pay on
behalf of the Insured those sums in excess of the Retained Limit that the Insured becomes
17
legally obligated to pay as damages by reason of liability imposed by law because of
Bodily Injury . . . to which this insurance applies . . . .” (Italics added.) Accordingly, the
excess policy applies only to those claims covered by the primary policy. The issue is
thus whether Kielty’s injuries were caused, in whole or in part, by Johnson or by
someone acting on behalf of Johnson.
The following facts are undisputed: Kielty was working as a cement pump
operator for Johnson when the accident occurred. Around noon, Kielty was directed by a
Johnson foreman to retrieve a piece of plywood located outside between two buildings,
building 60 and building 70. The path to retrieve the plywood was outside. Kielty did
not return after being sent on this errand, and other workers searched for him twice in the
area between buildings 60 and 70. Later, another subcontractor’s employee found Kielty
in a stairwell area inside of building 70. Johnson was not performing work in the interior
of building 70 at the time of the accident.
In the underlying Kielty action, Kielty alleged that certain named defendants,
including Advent, were negligent and caused his injuries. Johnson was not named in
Kielty’s lawsuit.
Based on these undisputed facts, National Union maintains that it is clear that
Kielty’s injuries were not “caused by” Johnson or someone acting on behalf of Johnson,
which Topa argues could include the Johnson foreman or Kielty himself. Although a
Johnson foreman directed Kielty to retrieve the plywood, the path was entirely outside.
Furthermore, Johnson was not conducting work in the interior of building 70 at the time
of Kielty’s fall. There is no evidence shedding light on the circumstances of Kielty’s fall
and whether he was at fault himself. Based on the foregoing, we agree with National
Union’s assessment that it met its initial burden by demonstrating that Johnson’s (or
Kielty’s) acts did not cause Kielty’s injuries.
18
Topa, however, claims that it met its burden in opposing National Union’s
summary judgment motion by demonstrating that a triable issue of fact exists regarding
the existence of coverage. Topa argues that based on the undisputed facts, Kielty’s
injuries were potentially caused by Johnson (or Kielty), because “[a]t all relevant times
[Kielty] was acting on [Johnson’s] behalf” and Kielty’s injuries may have resulted from
his own acts or omissions while he was acting on behalf of Johnson.
National Union argues that Topa’s evidence is merely speculation, and not
admissible evidence. “ ‘Speculation . . . is not evidence’ that can be utilized in opposing
a motion for summary judgment.” (Knapp v. Doherty (2004) 123 Cal.App.4th 76, 99.)
Speculation also differs from a reasonable inference. “When opposition to a motion for
summary judgment is based on inferences, those inferences must be reasonably deducible
from the evidence, and not such as are derived from speculation, conjecture, imagination,
or guesswork.” (Joseph E. Di Loreto, Inc. v. O’Neill (1991) 1 Cal.App.4th 149, 161.)
We agree with National Union that Topa does not actually provide evidence that
shows that Kielty’s injuries were caused by Johnson’s acts or omissions or Kielty’s own
acts or omissions. The undisputed facts reflect that Kielty was directed by the Johnson
foreman to retrieve plywood. However, for some reason, Kielty went inside the building,
when the path to the plywood was outside, and fell down a stairwell. There is no
evidence that Johnson caused Kielty to enter building 70. The foreman did not tell him to
enter the building. Johnson was not even doing work inside building 70. In the Kielty
Action, Kielty never alleged that Johnson was at fault for his fall.3 And Kielty himself
could not remember how he fell.
Topa seems to claim that based on the undisputed circumstances of Kielty’s fall—
the fact that he was at the jobsite and was directed by the Johnson foreman to retrieve
3
Topa posits in its opening brief that Kielty did not allege that Johnson was at
fault, because Kielty had filed a worker’s compensation claim with Johnson.
19
plywood when he fell—it can be reasonably inferred that Johnson was at fault. We
disagree with Topa’s assessment, which relies purely on speculation, not reasonable
inferences.
Speculation about facts has been found to be insufficient when construing an
insurer’s duty to defend—which is broader than the duty to indemnify. When construing
whether an insurer has a duty to defend courts have routinely held that the duty is
determined by looking at the “ ‘facts alleged or otherwise disclosed.’ . . . [¶] . . . it does
not include made up facts, just because those facts might naturally be supposed to exist
along with the known facts.” (Friedman Prof. Management Co., Inc. v. Norcal Mutual
Ins. Co. (2004) 120 Cal.App.4th 17, 34-35.) “An insured may not trigger the duty to
defend by speculating about extraneous ‘facts’ regarding potential liability or ways in
which the third party claimant might amend its complaint at some future date.”
(Gunderson v. Fire Ins. Exchange (1995) 37 Cal.App.4th 1106, 1114.) Along these same
lines, we do not believe that an insurer establishes there is a duty to indemnify by
speculating about extraneous facts. Nor is such speculation sufficient to create a triable
issue of material fact.
National Union directs us to St. Paul Fire & Marine Ins. Co. v. American Dynasty
Surplus Lines Ins. Co. (2002) 101 Cal.App.4th 1038 (St. Paul). In St. Paul, a licensed
contractor (ARB) entered into a contract to perform construction work at a rail
maintenance yard. Subsequently, ARB entered into a subcontract with Sasco to perform
electrical work. Sasco was required to add ARB as an additional insured under Sasco’s
liability policy with American Dynasty. (Id. at p. 1043.) The subcontract with Sasco
provided that Sasco agreed to indemnify ARB and the owner of the project for damages
arising out of or resulting from the performance of its work, or from injury or destruction
of property that arises or is alleged to have arisen in whole or in part by an act or
omission of Sasco or any subcontractor under Sasco, or any servants, agents, or
20
employees. (Id. at p. 1044.) ARB had its own general liability policy issued by St. Paul.
(Ibid.)
One day, an employee of Sasco was injured at the worksite after ARB was
pressure-testing a pipe connected to a fuel tank that exploded, striking the employee.
(St. Paul, supra, 101 Cal.App.4th at p. 1045.) Sasco was not involved in pressure-testing
for the pipe, nor did its subcontract involve pressure-testing. At the time, ARB was
working independently of Sasco. Prior to the explosion, the employee had heard a
hissing noise, which frightened him and caused him to run from his worksite. While
running, he was struck by a fragment from the pipe in his leg. The employee filed a
lawsuit against ARB and the project owner. ARB and the project owner tendered its
defense to St. Paul, and St. Paul tendered defense to American Dynasty, contending that
the lawsuit was covered under the additional insured endorsement issued by American
Dynasty. (Ibid.) American Dynasty denied coverage and refused tender of the defense.
(Ibid.) Subsequently, St. Paul provided a defense to ARB and the project owner, and
ultimately settled the lawsuit. St. Paul and ARB then brought a cause of action against
Sasco and American Dynasty for breach of contract and declaratory relief, seeking to
recover the amount that had been paid to settle the employee’s lawsuit. (Id. at
pp. 1045-1046.) The trial court agreed with St. Paul and ARB, but the appellate court did
not. Following an appeal, the appellate court reversed the trial court’s judgment in favor
of St. Paul and ARB. (Id. at p. 1047.)
Interpreting the language of the subcontract agreement, the St. Paul court stated
that by expressly limiting Sasco’s obligation to indemnify from acts or omission arising
out of or resulting from the work that Sasco was to perform, the parties intended “to limit
the scope of Sasco’s indemnity to injuries occurring in circumstances over which it has at
least some control and where it is engaged in activity that is causally related in some
manner to the injury for which indemnity is claimed.” (St. Paul, supra, 101 Cal.App.4th
21at pp. 1052-1053.) Further, “[t]o construe the promise of indemnity made by Sasco as
applying merely because its employee was present within the zone of danger created
solely by the negligence of ARB would offend . . . the clearly expressed intent of the
parties in article 4.1 of the Subcontract . . . .” (Id. at p. 1054.)
Topa attempts to argue that it is sufficient that Kielty was at the project site that
day when he was injured. However, like in St. Paul, there is no evidence that Kielty was
engaged in activity over which Johnson had control over at the time of his accident. As
we stated before, the undisputed facts reflect that Kielty was told to retrieve plywood
outside, and the path to the plywood was completely outside. Somehow, Kielty fell down
an unguarded shaft in building 70. At the time, Johnson was not performing work inside
building 70. It was also not alleged that the unguarded shaft where Kielty sustained his
injuries was hazardous due to some act or omission by Johnson or its employees. The
only theory of causation advanced by Topa is the fact that Kielty was at the project site at
the time of the accident. And as articulated in St. Paul, mere presence at a jobsite is
insufficient to find that an accident or injury arose from a subcontractor’s actions.
Along those same lines, we do not believe that mere presence at a jobsite is sufficient to
find that the accident was caused by Johnson’s acts or omissions.
Topa cites to several cases from other jurisdictions that it claims supports its
points. First, it cites to First Mercury Ins. v. Shawmut Woodworking & Supply (D. Conn.
2014) 48 F.Supp.3d 158 (First Mercury). In First Mercury, the plaintiff insurance
company (First Mercury) sought a declaratory judgment that the defendants (a general
contractor and a subcontractor) were not additional insureds under a general liability
policy it had issued to Fast Trek, a sub-subcontractor. (Id. at p. 160.) In September
2010, a steel web structure collapsed, killing one Fast Trek worker and injuring three
others. (Ibid.) The employees sued. Like this present case, First Mercury’s policy
extended coverage to the defendants but only for injuries “caused, in whole or in by part,
22
by” Fast Trek’s acts or omissions or the acts or omissions of those acting on Fast Trek’s
behalf in the performance of Fast Trek’s ongoing operations for defendants. (Id. at
p. 167.)
First Mercury argued that it had no duty to defend the defendants, because there
was no coverage since the employees’ complaints did not name Fast Trek as a defendant.
Therefore the lawsuit did not allege that the injuries were caused by Fast Trek. (First
Mercury, supra, 48 F.Supp.3d at p. 168.) The federal district court disagreed, concluding
that it could consider facts outside the four corners of the state court complaints that
showed there was a “possibility that the injuries could have been caused at least in part by
the acts or omissions of Fast Trek or those acting on its behalf.” (Ibid.)
First, the district court held that facts extrinsic to the complaints—including an
OSHA report—suggested the possibility of coverage, because there was evidence that the
accident was at least partially attributable to Fast Trek. (First Mercury, supra, 48
F.Supp.3d at pp. 169-170.) The court also held that the allegations in the four corners of
the complaints sufficiently created the possibility of coverage. (Id. at pp. 170-171.)
Two of the complaints alleged that the employees were working for Fast Trek at the time
of the accident and that the general contractor and subcontractor caused their injuries
through their agents, servants, or employees—which would include Fast Trek. (Id. at
p. 170.) Two of the other complaints similarly alleged that the general contractor and
subcontractor acted negligently through their agents, servants, and/or employees—which
again would include Fast Trek. (Ibid.) The complaints therefore suggested a possibility
of coverage triggering First Mercury’s duty to defend. (Id. at p. 171.)
Topa also cites to Ramara, Inc. v. Westfield Ins. Co. (E.D.Pa. 2014) 298 F.R.D.
219, which was cited by the First Mercury court. In Ramara, an employee of a
construction subcontractor was injured at a jobsite. The employee thereafter asserted
claims against the general contractor and not the employer—who he was barred from
23
suing under the state’s worker compensation scheme. The Ramara court held that
consideration of the four corners of the complaint gave rise to the possibility of coverage
and the general contractor was entitled to a defense under the subcontractor’s additional
insured provision. The employee had alleged in its complaint that the general contractor
was acting by and through its agents, servants, and/or employees. Accordingly, the court
held that it was possible that the jury could find that the employer’s conduct caused the
employee’s injury. (Id. at p. 226.)
Lastly, Topa relies on Pro Con, Inc. v. Interstate Fire & Cas. Co. (D.Me. 2011)
794 F.Supp.2d 242. In Pro Con, the allegations of the underlying complaint clearly
established that the complained of injury arose from the insured’s operations, even
though the insured was not expressly named in the complaint. (Id. at p. 257.)
First Mercury, Ramara, and Pro Con are readily distinguishable from the present
case. Kielty did not allege in his complaint that his accident was caused in whole or in
part by those acting on behalf of Advent, which would have—conceivably—included
Johnson as a subcontractor working under Advent’s subcontractor, Pacific. Neither do
the undisputed facts show that Kielty’s injuries were sustained as a result of Johnson’s
acts at the project site that day. Again, Kielty’s argument that Johnson was responsible,
in whole or in part, for Kielty’s accident is based solely on speculation.
Additionally, we must reject Topa’s argument to the extent that it claims that
Advent and the project owner’s cross-complaint against Johnson in the main Kielty
Action, which alleged that Johnson was negligent, creates a potential for coverage. The
allegations made by Advent and the project owner in their cross-complaint against
Johnson were not asserted against Johnson in the main Kielty Action—the action for
which indemnity and coverage are sought. Therefore, the allegations in the cross-
complaint cannot create coverage. (See Monticello Ins. Co. v. Essex Ins. Co. (2008) 162
Cal.App.4th 1376, 1389.)
24
For these reasons, we do not believe that Topa satisfies its burden in opposing
National Union’s motion for summary judgment. Topa’s speculations about unknown
facts fail to show that a triable issue of material fact exists regarding actual coverage.
Accordingly, we do not believe the trial court erred when it granted National Union’s
motion for summary judgment. Without actual coverage, Topa cannot obtain equitable
contribution from National Union. It is also not entitled to a declaration that it is entitled
to reimbursement from National Union.
And for these same reasons, we do not find that Topa met its initial burden on its
motion for summary judgment to make a prima facie showing of actual coverage.
Topa’s showing below consisted of its speculation regarding facts that do not actually
exist in the record. We cannot reasonably infer from the stated evidence that Johnson, or
Kielty himself, caused Kielty’s injuries; we can only use guesswork or our imagination.
Accordingly, we do not find the court erred when it denied Topa’s motion for summary
judgment.
4. “Other Insurance” Clauses
Additionally, even if we were to find that National Union’s excess policy provided
coverage to Advent as an additional insured, National Union would still be entitled to
judgment in its favor. We agree with National Union that the Topa policy was a specific
excess policy that attached prior to National Union’s general excess policy.
a. Policy Language
The National Union excess policy expressly states that National Union “will not
make any payment under [the excess] policy unless and until: [¶] 1. the total applicable
limits of Scheduled Underlying Insurance have been exhausted by the payment of Loss to
which this policy applies and any applicable, Other Insurance have been exhausted by the
payment of Loss . . . .” “Other Insurance” is defined as “a valid and collectible policy of
insurance providing coverage for damages covered in whole or in part by this policy.”
25
The Topa excess policy provides that its excess liability indemnity extends to
“indemnify the insured for the amount of loss which is in excess of the applicable limits
of liability, whether collectible or not, of the Underlying Insurance inserted in Item 6 of
the Declarations . . . .” Item 6 of the declarations lists, as the general liability policy, the
Landmark policy (Advent’s primary policy). “Loss” is defined as “the sum paid in
settlement of losses for which the insured is liable after making deduction for all
recoveries, salvages or other insurance (other than recoveries under the policy of the
Underlying Insurance) whether recoverable or not, and shall include all expenses and
‘costs.’ ”
b. Specific and General Excess Policies
“When two insurers cover the same level of liability (e.g., both primary or both
excess) on the same risk as to the same insured, courts may require each to contribute to
the cost of defending the claim or indemnifying the loss.” (Carmel Development Co. v.
RLI Ins. Co. (2005) 126 Cal.App.4th 502, 507-508 (Carmel Development).) Many
insurance policies contain an “ ‘other insurance’ clause” that attempt to limit the
insurer’s liability to the extent that other insurance policies may cover the same risk. (Id.
at p. 508.) “Although courts honor coverage terms, including ‘other insurance’ clauses,
whenever possible, ‘where the policies of two or more insurers of a common insured,
providing [the same level of] coverage for the same risk, contain conflicting “other
insurance” clauses . . . if one insurer pays more than its share of the loss or defense costs
without participation from the other insurer or insurers, a right to contribution arises.’ ”
(Ibid.)
Even when an insurance policy has an “other insurance” clause that purports to be
excess only and another insurance policy provides for pro rata coverage, “the prevailing
judicial view is that imposing the entire liability for a loss on the former ‘would annul
that policy’s language, and create the anomaly that courts will . . . enforce proration
26
between policies [only] when they [both] have conflicting “excess other insurance”
language barring proration.’ ” (Carmel Development, supra, 126 Cal.App.4th at p. 508.)
The general rule when multiple policies share the same risk but have inconsistent “other
insurance” clauses is to prorate according to each policy’s limits. (Id. at p. 509.)
National Union argues that Carmel Development is directly on point and compels
a conclusion that Topa’s excess policy was a specific excess policy that attached before
National Union’s general excess policy. In Carmel Development, a dispute arose
between two excess insurers, RLI Insurance Company (RLI) and Fireman’s Fund
Insurance Company (Fireman’s Fund). (Carmel Development, supra, 126 Cal.App.4th at
p. 506.) Carmel Development Company (Carmel) was the general contractor on a project
constructing golf and residential facilities. Carmel subcontracted with Largo Concrete
Company (Largo), which in turn subcontracted with CAB Concrete (CAB). During
construction, a CAB employee was severely injured at the worksite. The employee filed
a lawsuit against Carmel and Largo and settled against Largo. The lawsuit against
Carmel proceeded to a jury trial, and a jury awarded the employee more than $10 million
in damages. (Ibid.)
Carmel was insured by a commercial general liability policy issued by Reliance
Insurance Company (Reliance) and a $10 million excess liability policy from Fireman’s
Fund. (Carmel Development, supra, 126 Cal.App.4th at p. 506.) Largo had a primary
commercial liability policy with Acceptance Insurance Company (Acceptance) and a
commercial umbrella policy with RLI. Reliance settled the employee’s lawsuit for
$7.25 million, with Reliance paying its policy limit of $1 million and Fireman’s Fund
paying $6.25 million. (Ibid.)
Subsequently, Carmel sued Acceptance and RLI seeking a judicial determination
that it was an additional insured under the Acceptance policy and that RLI (as the excess
insurer) was required to contribute to the employee’s settlement after Acceptance’s
27
policy limits were met. (Carmel Development, supra, 126 Cal.App.4th at pp. 506-507.)
Fireman’s Fund successfully intervened in the action, and RLI filed a cross-complaint
against Carmel, Fireman’s Fund, and Reliance. (Ibid.) At trial, Fireman’s Fund argued
that it was an excess insurer just like RLI, and the policies contained irreconcilable
“ ‘other insurance’ ” clauses. RLI argued that its policy was “ ‘second level excess’ ”
that applied only when all other insurance was exhausted, including the Fireman’s Fund
policy. (Id. at p. 507.) The trial court agreed with Fireman Fund’s argument, found that
RLI and Fireman’s Fund had competing “other insurance” clauses, and concluded that it
was appropriate for both of them to contribute to the settlement in proportion to their
policy limits. (Ibid.)
This court reversed the trial court’s decision. We noted that if we limited our
analysis to the two competing “other insurance” clauses, we would have agreed with the
trial court. The Fireman’s Fund’s policy stated that “ ‘[i]f there is any (1) Other
Insurance . . . this policy shall apply as excess of and not contributory with such
Insurance.’ ” (Carmel Development, supra, 126 Cal.App.4th at p. 509.) “ ‘Other
Insurance’ ” was defined in the policy as “ ‘Insurance, other than Primary Insurance or
Insurance which is specifically purchased by the Named Insured to be in excess of the
Insurance afforded by this policy, which is available to the Insured and affords coverage
for Injury or damage to which this policy applies.’ ” (Ibid.) RLI’s “other insurance”
clause provided: “ ‘Whenever the insured is covered by other primary, excess or
excess-contingent insurance not scheduled on this policy as scheduled underlying
insurance, this policy shall apply on in excess of, and will not contribute with, such other
insurance. This policy shall not be subject to the terms, conditions or limitations of such
other insurance.’ ” (Ibid.)
We concluded, however, that the language of the insurance policies in question
rendered it apparent that RLI and Fireman’s Fund were not on the same footing with each
28
other. Fireman’s Fund provided that it would provide coverage immediately upon
exhaustion of Reliance’s policy limits. (Carmel Development, supra, 126 Cal.App.4th at
pp. 510-511.) The Fireman’s Fund policy specifically stated that it would “pay on behalf
of the Insured those sums in excess of Primary Insurance that the Insured becomes legally
obligated to pay as damages.” (Id. at p. 510.) In other words, the Fireman’s Fund’s
policy was specifically excess to that of the primary insurer, Reliance.
In contrast, the language of RLI’s policy obligated RLI to provide coverage only
when the limits of both the Acceptance policy and all other available coverage, including
primary and excess, were exceeded. (Carmel Development, supra, 126 Cal.App.4th at
pp. 510-511.) “RLI’s insuring agreement promised, ‘subject to the terms, conditions and
exclusions of this policy,’ to pay ‘all sums which the insured becomes legally obligated
to pay as ultimate net loss, because of: [¶] A. Bodily injury and property damage; or [¶]
B. Personal injury; or [¶] C. Advertising injury caused by an occurrence which takes
place during the policy period . . . .’ Under the next paragraph, ‘LIMITS OF
LIABILITY,’ RLI stated that it would be liable only ‘for the ultimate net loss in excess
of: [¶] 1. the applicable limits of scheduled underlying insurance stated in Item 5 of the
Declarations, for occurrences covered by scheduled underlying insurance, plus the limits
of any unscheduled underlying insurance which also provides coverage for such
occurrences . . . .’ [¶] . . . ‘Ultimate net loss’ represented the amount for which the
insured was liable ‘after deducting for all other recoveries and salvages,’ and it excluded
certain payments, fees, and expenses. The term ‘scheduled underlying insurance’
referred to the policies listed in the ‘Schedule of Underlying Insurance,’ which (for
comprehensive general liability) meant the policy issued by Acceptance. The term
‘unscheduled underlying insurance’ was defined as ‘any insurance policies available to
any insured (whether primary, excess, excess-contingent, or otherwise) except the
policies listed in the Schedule of Underlying Insurance.’ ” (Id. at p. 510.)
29
Accordingly, we concluded in Carmel Development that it was clear from the
language of the RLI policy that it offered a different level of coverage to its insured
compared with the Fireman’s Fund policy. (Camel Development, supra, 126 Cal.App.4th
at p. 514.) It was therefore unnecessary to resort to proration. (Ibid.)
Here, like the RLI policy contemplated in Carmel Development, the National
Union policy provided that National Union would be obligated only after “Other
Insurance have been exhausted by the payment of Loss . . . .” The National Union policy
specifically defined “Other Insurance” as “a valid and collectible policy of insurance
providing coverage for damages covered in whole or in part by this policy.” And the
Topa excess policy is similar to the Fireman’s Fund’s policy in Carmel Development.
Topa’s excess policy agreed to “indemnify the insured for the amount of loss which is in
excess of the applicable limits of liability, whether collectible or not, of the Underlying
Insurance inserted in Item 6 of the Declarations . . . .” Item 6 of the declarations lists, as
the general liability policy, the Landmark policy.
Topa, however, argues that the definition of “loss” in its policy is, in effect, an
“other insurance” policy. As described above, Topa’s policy defined “Loss” as “the sum
paid in settlement of losses for which the insured is liable after making deduction for all
recoveries, salvages or other insurance (other than recoveries under the policy of the
Underlying Insurance) whether recoverable or not, and shall include all expenses and
‘costs.’ ” (Italics added.) There is no definition of “other insurance” in the Topa policy.
As National Union notes, a similar argument was rejected in Fireman’s Fund
Indemnity Co. v. Prudential Assurance Co. (1961) 192 Cal.App.2d 492 (Fireman’s
Fund). There, an insurer, whose policy defined “ ‘ultimate net loss’ ” to mean “ ‘the
sums paid in settlement of losses for which the Assured is liable after making deductions
for all recoveries, salvages and other insurances . . . whether recoverable or not. . . .’ ”
unsuccessfully argued that this definition constituted a valid “ ‘other insurance’ ” clause.
30
(Id. at p. 494.) The appellate court noted that the definition of “loss” that the insurer
attempted to construe as an “other insurance” clause referred to insurance which the
primary insurer could enlist—therefore, if the primary insurer could reduce its loss by
other insurance, the insurer would get the benefit. (Id. at p. 496.) Additionally, the
insurer was seeking a double benefit from its definition of “loss” by “fix[ing the primary
insurer’s] ultimate net loss under it and deduct[ing] from its liability all other insurance”
and by “fix[ing] its own ultimate net loss under it, claiming the benefit of all other
insurance.” (Ibid.) Lastly, enforcement of the provision in the way argued by the insurer
could conceivably result in a denial of insurance protection to the insured, since the
clause calls for deduction of other insurance whether recoverable or not. (Id. at
pp. 496-497.) The appellate court concluded that if “the company would limit its liability
by the interposition of ‘other insurance,’ it should at least define the ‘other insurance.’ ”
(Id. at p. 501.)
We agree with the analysis set forth in Fireman’s Fund. And we find the rationale
set forth in Carmel Development is applicable here. Although Topa’s definition of “loss”
referenced “other insurance,” the reference was vague. There was no definition of what
this “other insurance” included. Additionally, Topa’s policy contained specific language
that indicated that coverage applied immediately once the Landmark policy was
exhausted. In contrast, National Union’s “other insurance” clause is clearly written,
specifically defining other insurance as “a valid and collectible policy of insurance
providing coverage for damages covered in whole or in part by this policy.” And,
importantly, National Union’s excess policy expressly states that coverage will not apply
until “the total applicable limits of Scheduled Underlying Insurance have been exhausted
by the payment of Loss to which this policy applies and any applicable, Other Insurance
have been exhausted by the payment of Loss . . . .”
31
Based on the foregoing, we also do not find the court erred when it entered
summary judgment in favor of National Union. Topa cannot demonstrate that its policy
was the same level excess policy as National Union’s.4
DISPOSITION
The judgment is affirmed. National Union Fire Insurance Company of Pittsburgh,
PA is entitled to its costs on appeal.
4
Based on our conclusion that summary judgment was properly entered in favor
of National Union because (1) there is no evidence that Kielty or Johnson caused Kielty’s
injuries and (2) National Union’s excess policy was a general excess policy while Topa’s
excess policy was a specific excess policy, we need not address National Union and
Topa’s arguments pertaining to whether the Pacific/Johnson subcontract incorporated the
insurance provisions of the Advent/Pacific contract.
32
Premo, J.
WE CONCUR:
Rushing, P.J.
Grover, J.
Advent, Inc. v. National Union Fire Insurance Company of Pittsburgh, PA
H041934
Trial Court: Santa Clara County Superior Court
Superior Court No. 1-13-CV238904
Trial Judge: Hon. William J. Elfving
Counsel for Intervener/Appellant: MURCHISON & CUMMING
Topa Insurance Company Philip H. Thompson
Counsel for Defendant/Respondent: McCURDY & FULLER
National Union Fire Insurance Rosemary J. Springer
Company of Pittsburgh, PA Kevin G. McCurdy
Advent, Inc. v. National Union Fire Insurance Company of Pittsburgh, PA
H041934