In this litigation between excess insurers of a prime contractor and a subcontractor whose employee was badly injured on the job and recovered a $10 million settlement, the prime contractor’s insurer failed to introduce evidence on summary judgment proving that the sub or the employee was at fault and thus that the loss was actually covered by the sub’s policy. In this litigation between excess insurers of the prime contractor and a subcontractor whose employee was badly injured on the job, recovering a $10 million settlement, the court concludes that the prime contractor’s excess insurer, Topa, failed to introduce evidence on cross-summary judgment motions proving that the loss was actually covered by National Union’s policy. That policy would cover if the subcontractor or the injured employee was at fault, but Topa failed to introduce evidence showing that their fault caused the accident. Also, following Carmel Development Co. v. RLI Ins. Co. (2005) 126 Cal.App.4th 502, the decision holds that Topa cannot recover equitable contribution from National Union because the two insurers were not on the same level of insurance due to the different wording of their policies, one of which provided for payment of amounts in excess of primary coverage, and the other for payment of ultimate net loss after deducting all recoveries from primary or other insurance.
California Court of Appeal, Sixth District (Premo, J.); December 6, 2016; 2016 WL 7100489