American Safety Indemnity Co. v. Admiral Insurance

Filed 9/27/13
CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

AMERICAN SAFETY INDEMNITY D061587
COMPANY,

Plaintiff and Respondent,
(Super. Ct. No. 37-2010-00092157-
v. CU-IC-CTL)

ADMIRAL INSURANCE COMPANY,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Richard

E.L. Strauss, Judge. Affirmed.

Law Offices of Martin N. Buchanan, Martin N. Buchanan; Walsh McKean

Furcolo and James T. Derfler for Defendant and Appellant.

Blau & Associates, David S. Blau and Ron L. Nelson for Plaintiff and

Respondent.

In this case, we once again apply the well-established principle that any limitation

on the coverage provided by a liability insurance policy must be express and consistent

with the reasonable expectations of the insured.
 Here, the subject commercial general liability policy has a provision labeled "Self-

insured Retention (SIR)" that clearly makes the insured liable for the first $250,000 in

damages payable to any third party claimant. The policy also makes it clear the insured's

payment of defense costs count toward meeting the insured's SIR obligations.

However, the SIR clause we are asked to consider does not expressly make

payment of the SIR a condition of the insurer's broader obligation to provide a defense

when an arguably covered claim is tendered. Rather, the SIR clause expressly applies

only as a limitation on the insurer's duty to indemnify the insured for covered damages

for which the insured is found liable. Given the language of the policy, an insured could

quite reasonably interpret it as providing a defense to arguably covered claims as soon as

such claims are tendered and before any SIR has been paid. Thus, like the trial court, we

find the defendant insurer in this equitable subrogation action had a duty to defend its

insureds when large soil subsidence claims were made against them and without regard to

the SIR provisions in their policies.

We recognize other liability insurance policies contain SIR clauses that expressly

and unambiguously make payment of a SIR obligation a condition of any obligation

under the policy, including any duty to defend. We also recognize those SIR provisions

have been enforced according to their terms. The policy in dispute here, however, does

not contain such an express condition on the defendant insurer's duty to defend.

Because the defendant insurer had a duty to defend its insureds, principles of

equitable subrogation required that it reimburse the defense costs another insurer,

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plaintiff herein, paid on behalf of the defendant's insureds in the course of the underlying

subsidence litigation. Although the plaintiff insurer made the payments notwithstanding

the fact the insureds were not covered under any policy the plaintiff issued, the

circumstances under which the plaintiff made the payments did not impair the plaintiffs'

right to equitable subrogation.

FACTUAL AND PROCEDURAL BACKGROUND

A. Fessler Lawsuit & ASIC I

This case and a related appeal we decided in 2009, American Safety Indemnity

Company v. Admiral Insurance Company (Dec. 4, 2009, D053564) (nonpub. opn.) (ASIC

I), grow out of the same underlying subsidence litigation and involve the same insureds

and their insurers. We briefly summarized the underlying litigation in ASIC I:

"Between the late 1990's and 2002, Zephyr Newhall, LP, and its partner Zephyr

Partners, LLC (collectively Zephyr), worked with developer D.R. Horton, Inc. [Los

Angeles Holding Company; hereafter Holding], to build housing on a tract of land in

Santa Clarita which Zephyr owned. [Holding] hired Ebensteiner Co. (Ebensteiner) to

grade the tract pursuant to plans created by Leighton and Associates, Inc. (Leighton), a

geological engineering firm. As part of their grading contract, Ebensteiner agreed to

indemnify [Holding] against liability for any loss attributable to Ebensteiner's breach of

duty even if [Holding's] conduct also contributed to the loss.

"The grading began in February 2002, but was not without incident. On or about

March 11, 2002, a backcut slope failure occurred as a direct result of the grading, creating

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a 140- by 100-foot landslide and tension cracks that visibly extended to within 50 feet of

existing upslope homes. Another similar backcut slope failure, resulting in a 70- by 200-

foot slide, occurred April 4, 2002.

"On or about April 15, 2002, several adjacent homeowners noticed physical

damage to their property caused by the slides. On January 23, 2003, the homeowners

sued [Holding], Ebensteiner, Zephyr and Leighton, among others (hereafter Fessler

lawsuit). [¶] . . . [¶]

"At the time of the work, [Holding] was insured by defendant and respondent

Admiral Insurance Company (Admiral), while Ebensteiner was insured by plaintiff and

appellant American Safety Indemnity Co (ASIC). The respective policies limited

coverage to $1 million per occurrence. The Admiral policy contained a provision which

designated it 'excess' over the ASIC coverage; the ASIC policy contained a similar excess

insurance disclaimer for those instances where the ASIC policy was not primary. The

ASIC policy also covered [Holding] as an 'additional insured.'

"[Holding] tendered its defense of the Fessler claims to ASIC, which initially

declined the tender. [Holding] then filed a bad-faith lawsuit against ASIC. On May 6,

2004, [Holding] and ASIC settled the bad-faith lawsuit. Under the terms of the

settlement, ASIC agreed to pay [Holding's] defense costs and to not thereafter dispute its

duty to defend [Holding].

"The Fessler lawsuit itself was settled on October 1, 2007. Ebensteiner agreed to

pay the Fessler plaintiffs $2.52 million, [Holding] agreed to pay plaintiffs $1.75 million,

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and Leighton agreed to pay plaintiffs $630,000, for a total sum of $4.9 million. Pursuant

to the agreement, [Holding] and Ebensteiner dismissed with prejudice their cross-claims

against one another, with the exception of claims either of their insurers had against the

other's insurer. ASIC and Admiral each contributed their respective policy limits of $1

million to the settlement.

"While the Fessler lawsuit was pending, ASIC asked Admiral to contribute to the

defense costs ASIC incurred on behalf of [Holding]. Admiral refused and ASIC filed [a

declaratory relief action]. ASIC alleged Admiral was obligated to reimburse ASIC a pro

rata share of the $2 million ASIC spent on [Holding's] defense. As we have indicated,

ASIC and Admiral filed cross-motions for summary judgment.

"Among other matters, in opposing Admiral's motion, ASIC relied on expert and

percipient witness deposition testimony that had been developed in the Fessler lawsuit.

In particular, ASIC relied on two experts retained by the Fessler plaintiffs who concluded

the slope failure was caused by defects in Leighton's grading plans and not by any

deficiency in the grading performed by Ebensteiner. ASIC also relied on a geologist

employed by Leighton who testified that, as far as he knew, Ebensteiner [ASIC's named

insured] performed the grading according to Leighton's plans." (ASIC I, supra, D053564

[at pp 3-6].)

In ASIC I, Admiral argued the broad indemnity clause in the Ebensteiner grading

subcontract protected both Holding and Admiral from any indemnity claim by

Ebensteiner or ASIC. In ASIC I, we held that although the indemnity clause might

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provide a complete defense to the claims ASIC was making, it would only do so upon a

showing Ebensteiner was negligent. We found that the record did not establish

Ebensteiner's negligence as a matter of law and reversed the summary judgment entered

in Admiral's favor.

B. ASIC II

In addition to Holding, the Fessler plaintiffs also sued two Holding related entities,

D.R. Horton, Inc. and D.R. Horton, Inc.—Los Angeles (collectively the Horton entities).

The Horton entities had no contractual relationship with Ebensteiner, and Ebensteiner

owed them no duty of indemnity; moreover, the Horton entities were not additional

insureds on Ebensteiner's ASIC policy.

The Horton entities were named insureds under the Admiral policy.

Following Holding's bad faith lawsuit, ASIC paid the cost of not only Holding's

defense in the Fessler lawsuit but also the cost of defending the Horton entities. All three

entities were represented by the same law firm, which did not segregate its billings

between the three. ASIC paid a total of $2,237,068.73 in defense costs on behalf of

Holding and the two Horton entities.

After the Fessler litigation was settled, ASIC brought this separate declaratory

relief action (ASIC II) against Admiral in which it sought reimbursement for the cost of

defending the Horton entities. ASIC alleged substantive causes of action for subrogation,

indemnity and contribution.

By way of an order granting ASIC's motion for summary adjudication, the trial

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court determined that, as a matter of law, Admiral owed the Horton entities a duty to

defend them in the Fessler action. In particular, the trial court determined that under the

terms of the Admiral policy, although the SIR provision required that the Horton entities

pay the first $250,000 in any damages recovered by a third party, Admiral's duty to

defend the Horton entities was independent of the policy's SIR provisions.

At a later bench trial, ASIC presented a witness who testified to the defense costs

paid by ASIC on behalf of Holding and the two Horton entities, and to statements made

by representatives of the Horton entities that caused ASIC to conclude the Horton entities

had no insurance coverage for the Fessler claims. ASIC also presented evidence that

showed its settlement of the earlier Holding bad faith action did not include any

provisions with respect to defense of the Horton entities.

Admiral did not present any witnesses.

In its statement of decision, the trial court determined ASIC paid defense costs on

behalf of the Horton Entities, which were in fact Admiral's obligation, and was therefore

entitled to subrogation for those costs. The trial court rejected Admiral's contention

ASIC had acted as volunteer or had otherwise waived its right to reimbursement from

Admiral. The trial court awarded ASIC a total of $1.9 million in reimbursement of the

defenses costs it had paid and interest.

Admiral filed a timely notice of appeal.

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 DISCUSSION

I

"In the case of insurance, subrogation takes the form of an insurer's right to be put

in the position of the insured in order to pursue recovery from third parties legally

responsible to the insured for a loss which the insurer has both insured and paid.

[Citations.] '"As now applied [the doctrine of equitable subrogation] is broad enough to

include every instance in which one person, not acting as a mere volunteer or intruder,

pays a debt for which another is primarily liable, and which in equity and good

conscience should have been discharged by the latter." [Citations.]' [Citation.]"

(Fireman's Fund Ins. Co. v. Maryland Casualty Co. (1998) 65 Cal.App.4th 1279, 1291–

1292 (Fireman's Fund).)

"The essential elements of an insurer's cause of action for equitable subrogation

are as follows: (a) the insured suffered a loss for which the defendant is liable, either as

the wrongdoer whose act or omission caused the loss or because the defendant is legally

responsible to the insured for the loss caused by the wrongdoer; (b) the claimed loss was

one for which the insurer was not primarily liable; (c) the insurer has compensated the

insured in whole or in part for the same loss for which the defendant is primarily liable;

(d) the insurer has paid the claim of its insured to protect its own interest and not as a

volunteer; (e) the insured has an existing, assignable cause of action against the defendant

which the insured could have asserted for its own benefit had it not been compensated for

its loss by the insurer; (f) the insurer has suffered damages caused by the act or omission

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upon which the liability of the defendant depends; (g) justice requires that the loss be

entirely shifted from the insurer to the defendant, whose equitable position is inferior to

that of the insurer; and (h) the insurer's damages are in a liquidated sum, generally the

amount paid to the insured. [Citations.]" (Fireman's Fund, supra, 65 Cal.App.4th at p.

1292.)

"The right of subrogation is purely derivative. An insurer entitled to subrogation

is in the same position as an assignee of the insured's claim, and succeeds only to the

rights of the insured. The subrogated insurer is said to '"stand in the shoes"' of its

insured, because it has no greater rights than the insured and is subject to the same

defenses assertable against the insured. Thus, an insurer cannot acquire by subrogation

anything to which the insured has no rights, and may claim no rights which the insured

does not have. [Citations.]" (Fireman's Fund, supra, 65 Cal.App.4th at pp. 1292–1293.)

II

In its principal argument on appeal, Admiral contends it owed the Horton entities

no duty of defense and, hence, ASIC was not entitled to any subrogation because,

contrary to the trial court's determination, the SIR provision in Admiral's policy applied

not only to its duty to indemnify but also to its duty to defend.

We agree with the trial court. The SIR was not a condition of Admiral's duty to

defend.

A. Admiral's Policy

The insuring clause in Admiral's policy states: "We will pay those sums that the

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insured becomes legally obligated to pay as damages because of 'bodily injury' or

'property damage' to which this insurance applies. We will have the right and duty to

defend the insured against any 'suit' seeking those damages. However, we will have no

duty to defend the insured against any 'suit' seeking damages for 'bodily injury' or

'property damage' to which this insurance does not apply. . . ." (Italics added.)

The Admiral policy contains the following definitions:

"17. 'Property damage' means:

"a. Physical injury to tangible property, including all resulting loss of use of that

property. All such loss of use shall be deemed to occur at the time of the physical injury

that caused it; or

"b. Loss of use of tangible property that is not physically injured. All such loss of

use shall be deemed to occur at the time of the 'occurrence' that caused it.

"18. 'Suit' means a civil proceeding in which damages because of 'bodily injury,'

'property damage' or 'personal and advertising injury' to which this insurance applies are

alleged. . . ."

Admiral's duties are limited by an SIR endorsement to its policy, which provides

in part:

"1. Our total liability for all damages will not exceed the limits of liability as

stated in the Declarations and will apply in excess of the insured's self-insured retention

(the 'Retained Limit'). 'Retained Limit' is the amount shown below, which you are

obligated to pay, and only includes damages otherwise payable under this policy.

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 "If the 'Retained Limit' is subject to an annual aggregate, the aggregate amount

shall be payable by the insured even if the policy is terminated prior to the expiration.

"'Retained Limit': [¶] . . . [¶] $ 250,000 __________ Per Occurrence-Other than

Products and Completed

Operations

$ 250,000 __________ Per Occurrence-Products

and Completed Operations

"2. Expenses incurred under the SUPPLEMENTAL PAYMENTS-COVERAGES

A AND B provisions of this policy are:

"[X] Included in the 'Retained Limit,' [¶] . . . [¶]

"4. We have the right in all cases, at our expense, to assume charge of the defense

and/or settlement of any claim wherein your liability is reasonably expected to exceed the

Self-Insured Retention and, upon written request from us, you will tender such portion of

the Self-Insured Retention as we may deem necessary to complete the settlement of such

claim."

The policy Admiral provided the Horton entities is written on a "Commercial

General Liability" form. The face of the policy identifies it as providing primary

coverage to its insureds. The policy makes Admiral's coverage excess only when other

coverage is available to its insureds by way of other insurance acquired by the insureds or

when the insureds are named as additional insured on another party's policy.

Significantly, when such other insurance is available and Admiral becomes an excess

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insurer, the policy states: "[W]e will have no duty under Coverages A or B to defend the

insured against any 'suit' if any other insurer has a duty to defend the insured against that

'suit'. If no other insurer defends, we will undertake to do so, but we will be entitled to

the insured's rights against all those other insurers."

B. Interpretation of SIR Endorsements

The court in Legacy Vulcan Corp. v. Superior Court (2010) 185 Cal.App.4th 677

(Legacy Vulcan) interpreted a policy that, like the Admiral policy, contained an SIR

endorsement. In Legacy Vulcan, the court held the SIR provisions only applied to the

insurer's duty to indemnify its insured for damages, not its duty to defend.

Importantly, like the commercial general liability coverage Admiral provided to

the Horton entities, the policy the court considered in Legacy Vulcan provided primary

coverage rather than excess coverage. (Legacy Vulcan, supra, 185 Cal.App.4th at pp.

695-696.) The distinct roles played by primary and excess carriers are important. As the

court in Signal Companies, Inc. v. Harbor Ins. Co. (1980) 27 Cal.3d 359 explained, a

primary insurer typically charges a greater premium than an excess insurer, because the

primary insurer will normally bear the cost of providing the insured with a defense.

When a settlement or judgment exceeds the limits of the primary insurer's policy limits,

the excess insurer will be required to contribute to the settlement or judgment but,

typically, because a judgment or settlement ends the lawsuit, the excess carrier will not

pay any of the insured's defense costs. (Id. at p. 365.)

The court in Legacy Vulcan recognized that, given the different roles primary and

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excess insurers play, there is a presumption an excess carrier has no obligation to pay

defense costs until the underlying primary insurance has been exhausted or there is

express policy language that imposes an earlier defense obligation on the excess carrier.

(Legacy Vulcan, supra, 185 Cal.App.4th at p. 695.) However, the court in Legacy Vulcan

held that in the case of a primary policy with an SIR provision, the presumption with

respect to defense costs, which operates in favor of an excess carrier, has no application:

"One of the reasons for this rule is that the defense obligation falls on the primary insurer,

whose greater premium reflects that risk. [Citation.] '[I]t is unnecessary to impose an

immediate duty to defend on the excess carrier to afford the insured that to which it is

entitled, namely, the full protection of a defense on its behalf.' [Citation.] Another

reason for the rule is that, absent policy language to the contrary, the insured could have

no reasonable expectation that an excess insurer would provide a defense before the

primary insurance is exhausted. [Citation.]

"These reasons, however, do not justify extending the rule that an excess insurer

has no duty to defend unless the underlying primary insurance is exhausted to insurers

who provide primary umbrella coverage with a self-insured retention, absent clear policy

language so providing. So-called "self-insurance" is no insurance and affords the insured

no protection at all. [Citation.] To require the exhaustion of a self-insured retention

before an insurer will have a duty to defend would not ensure that the defense obligation

rests on the insurer receiving premiums for that risk, but instead would result in no

insurer providing a defense prior to exhaustion. Moreover, in the absence of clear policy

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language so providing, to require the exhaustion of a self-insured retention before an

insurer will have a duty to defend would be contrary to the reasonable expectations of the

insured to be provided an immediate defense in connection with its primary coverage. If,

under the terms of the policy, the insured would have a reasonable expectation that the

insurer would provide a defense, any limitation on the insurer's defense obligation must

be conspicuous, plain and clear. [Citations.]" (Legacy Vulcan, supra, 185 Cal.App.4th at

pp. 695-696, fn. omitted.)

Because the policy it was considering did not expressly relieve the insurer of its

duty to defend before the SIR was satisfied, the court in Legacy Vulcan held the insurer

was obligated under its insuring clause to provide a defense when the underlying claim

was tendered to it. (Legacy Vulcan, supra, 185 Cal.App.4th at p. 697.)

Contrary to Admiral's argument, we believe Legacy Vulcan was correctly decided.

First, we note it is consistent with the general guidance the Supreme Court provided with

respect to self-insurance in Aerojet-General Corp. v. Transport Indemnity Co. (1997) 17

Cal.4th 38, 75 (Aerojet). In Aerojet, the court held that an insured was not required to

contribute defense costs attributable to periods during which it was effectively uninsured:

"In a strict sense, 'self-insurance' is a 'misnomer.' [Citations.] 'Insurance is a contract

whereby one undertakes to indemnify another against loss, damage, or liability arising

from a contingent or unknown event.' (Ins. Code, § 22.) '[S]elf-insurance . . . is

equivalent to no insurance . . . .' [Citation.] As such, it is 'repugnant to the [very] concept

of insurance . . . .' [Citation.] If insurance requires an undertaking by one to indemnify

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another, it cannot be satisfied by a self-contradictory undertaking by one to indemnify

oneself." (Id. at p. 72, fn. 20.)

The holding in Legacy Vulcan is also consistent with other cases that have

analyzed particular SIR endorsements. In Montgomery Ward & Co. v. Imperial Casualty

& Indemnity Co. (2000) 81 Cal.App.4th 356 (Montgomery Ward), insurers argued that

although the retained limits provisions of their respective policies did not specifically

refer to defense costs, the retained limits requirements should have been interpreted as

underlying insurance within the meaning of separate provisions that made the policies

excess to other available insurance. In rejecting this argument, the court stated: "[A]ll of

the policies make it clear there is a difference between underlying insurance and retained

limits, and the Insurers understood this difference when they entered into these contracts.

The Insurers now ask us to relieve them of this clear contractual obligation, and instead to

deem retained limits in other potentially applicable policies to be primary insurance. To

do so, we would have to find Montgomery Ward's SIR's in all of its policies constitute

'other collectible insurance with any other insurer' . . . or 'specific valid and Collectible

Underlying Insurances'. . . , as to which the Insurers' policies are excess. This we will not

do. We are offered no public policy or other compelling reason to engraft new meaning

on plain language, and accordingly 'we may not rewrite what [the insurers] themselves

wrote.' [Citation.]" (Id. at p. 367, fns. omitted.)

As the court in Montgomery Ward also noted, the cases that have required

satisfaction of a retained limit as a condition of an insurer's duty to defend were, in fact,

15
not primary policies but in excess policies or involved express policy language that made

both the duty to indemnify and the duty to defend subject to an SIR. (Montgomery Ward,

supra, 81 Cal.App.4th at pp. 367-368; see, e.g., Nabisco, Inc. v. Transport Indemnity Co.

(1983) 143 Cal.App.3d 831, 835 [policy language provided that insurance was excess to

SIR]; General Star Indemnity Co. v. Superior Court (1996) 47 Cal.App.4th 1586, 1592

[same]; City of Oxnard v. Twin City Fire Ins. Co. (1995) 37 Cal.App.4th 1072, 1077-

1078 [same].) "The significant point is that these cases, like all other insurance cases,

look first to the terms of the policy. [Citation.]" (Montgomery Ward, supra, at p. 368.)

C. Analysis

Contrary to Admiral's argument, its policy does not expressly and unambiguously

make its duty to defend the Horton entities subject to the SIR. Rather, the SIR

endorsement expressly provides the contrary: "'Retained Limit' is the amount shown

below, which you are obligated to pay, and only includes damages otherwise payable

under this policy." In light of this unambiguous limitation on the scope of the SIR, it is

not surprising that there is no other provision of the SIR that nonetheless extends the

scope of the SIR to include the costs of defense.

Were there any doubt as to the scope of Admiral's SIR, we need only look to the

policy's provisions with respect to other insurance. As in Montgomery Ward, the

Admiral policy expressly provides that where a claim is covered by other insurance, the

Admiral policy is excess and Admiral has no duty to defend. The absence of such an

express extension of the scope of the SIR leads us, and would lead any reasonable

16
insured, to conclude that, consistent with the express terms of the SIR, the SIR only

applies to damages.

In sum, the trial court did not err in determining the Horton entities were not

required to satisfy the SIR as a condition of obtaining a defense from Admiral.

III

Admiral argues that even if it owed the Horton entities a duty to defend, ASIC

either waived its right to subrogation or acted as a volunteer. Like the trial court, we

reject these defenses as well.

A. Settlement with Holding

The trial court found ASIC's settlement of Holding's bad faith suit against it did

not bar ASIC's later effort to obtain subrogation for defense costs it paid on behalf of the

other Horton entities. The record supports the trial court's finding that by way of the

settlement ASIC only agreed to provide defense costs to Holding and that it did not by

way of the settlement forego its right to recoup those defense costs from other parties. In

particular, nothing in the agreement itself or in the circumstances giving rise to it support

Admiral's contention the defense costs ASIC paid were paid as "damages" for any act of

bad faith on ASIC's part and therefore outside the scope of expenses that were rightfully

Admiral's obligation.

We reject Admiral's reliance on United Services Automobile Association v. Alaska

Insurance Company (2001) 94 Cal.App.4th 638, 646 (USAA). There, the excess carrier,

USAA, sought subrogation against the primary insurer, New Hampshire, for damages

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USAA paid the insured, Mrs. Thomas, in her bad faith action against USAA. New

Hampshire in fact provided the insured with a defense and settled with the underlying

personal injury claimaint within New Hampshire's policy limits. (Id. at p. 647.) Given

these circumstances, we concluded USAA had no subrogation claim against New

Hampshire for the USAA's own bad faith in failing to provide Mrs. Thomas with a

timely defense. (Ibid.) We stated: "Because USAA, under the theory of equitable

subrogation, stands in Mrs. Thomas's shoes and is entitled to recover from New

Hampshire only what Mrs. Thomas could have recovered from New Hampshire, USAA's

equitable subrogation claim rests on the untenable premise that Mrs. Thomas could have

recovered compensation from New Hampshire for USAA's alleged wrongful denial of

coverage." (Ibid.)

In ASIC's subrogation action, it stands in the shoes of the Horton entities. The

Horton entities never made any bad faith claim against ASIC because there was no theory

upon which ASIC owed the Horton entities any duty of defense: the Horton entities were

not named insureds under the ASIC policy and were not additional insureds as a result of

any contract with Ebensteiner. The Horton entities were named insured under the

Admiral policy, and it is Admiral's unfulfilled defense obligations under that policy that

gives rise to ASIC's subrogation claim. In short, unlike the circumstances we confronted

in USAA, here, ASIC is in no sense seeking to recover subrogation for any wrong it

committed.

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 B. Volunteer

Like the trial court, we also reject Admiral's contention that it voluntarily paid the

Horton entities' defense costs.

The record shows that, notwithstanding requests from ASIC, the law firm

defending Holding and the other Horton entities refused to provide ASIC with separate

billing for each of the three entities. We also note the record shows and the trial court

found that Admiral and Horton failed to disclose to ASIC the existence of the Admiral

policies. Given these circumstances, the volunteer defense did not require that ASIC

engage in further coverage litigation with Holding or the other Horton entities in order to

preserve its rights against Admiral, which, as we have discussed, owed the Horton

entities a duty of defense. In this regard, we note where, as here, one insurer has an

otherwise valid subrogation claim against another insurer, the "volunteer" defense has

been criticized: "'"[T]here are . . . compelling reasons for allowing recovery when the

other insurer has not entered the case at all or has refused to defend the insured against

suit by the injured party. . . . [T]his view represents the current trend and better rule in

the 'volunteer' situations."' [Citation.]" (Fireman's Fund, supra, 65 Cal.App.4th at p.

1290.)

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 DISPOSITION

The judgment is affirmed. ASIC to recover its costs of appeal.

BENKE, Acting P. J.

WE CONCUR:

McINTYRE, J.

O'ROURKE, J.

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