Filed 3/24/22 Cal. Capital Ins. Co. v. Truck Ins. Exchange CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, David J. Cowan, Judge. Affirmed.

Grant, Genovese & Baratta, Lance D. Orloff for Plaintiff and Appellant.

Woolls Peer Dollinger & Scher, H. Douglas Galt for Defendant and Respondent.

Plaintiff and appellant California Capital Insurance Company (CCI) brought an action for equitable contribution against defendant and respondent Truck Insurance Exchange (Truck), alleging that Truck failed to participate in the defense of its insured in underlying litigation. Truck moved for summary judgment, contending that its insurance policy provided excess rather than primary coverage and therefore no contribution was required. The trial court agreed and granted summary judgment in Truck’s favor.

On appeal, CCI argues that the excess-only provision in Truck’s policy operated as an escape clause, allowing Truck to avoid paying for the coverage it promised, and therefore the trial court should have refused to enforce it. CCI also contends that Truck had a duty to defend its insured because of the potential that some of the allegations in the underlying litigation would trigger liability that was covered under Truck’s policy but not CCI’s. We agree with the trial court that summary judgment was proper and therefore affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

I. The Parties and their Insurance Policies

CCI and Truck are insurance companies in California. Each party issued two policies relevant here—an initial policy in 2014 and a renewed policy in 2015.[1] CCI insured ROEM Corporation under a Business Owners Policy (CCI’s policy). ROEM is the parent company of Village at Broad Street Family Housing, L.P. (Village), which owned the apartment complex at issue in the underlying litigation.[2]

Pursuant to a management agreement between Village and FPI Management, Inc. (FPI), FPI was the property manager for the apartment complex. The agreement also provided that FPI would employ a resident manager to live on the property and manage the complex.

CCI’s policy for ROEM covered damages from “‘bodily injury’, ‘property damage’, ‘personal injury’ or ‘advertising injury’ to which this insurance applies.” The policy defined “personal injury” to include damages from wrongful eviction. The policy also listed FPI as an additional insured, and defined “insured” to include “Any person (other than your employee) or any organization while acting as your real estate manager.” CCI’s policy also contained the following clause: “If there is other insurance covering the same loss or damage, we will pay only for the amount of covered loss or damage in excess of the amount due from that other insurance, whether you can collect on it or not. But we will not pay more than the applicable Limit of Insurance.”

Truck insured FPI as the named insured under a Businessowners Liability Coverage policy (Truck’s policy). Truck’s policy also included a provision covering damages from “‘bodily injury’, ‘property damage’, ‘personal injury’ or ‘advertising injury’ to which this insurance applies.” The policy defined “insured” to include “[a]ny person . . . or any organization while acting as your real estate manager.”

Truck’s policy also contained an endorsement entitled “Limitation of Coverage – Real Estate and Property Management Operations,” which provided, “This insurance applies only to ‘bodily injury’, ‘property damage’, personal injury’ and ‘advertising injury’ arising out of the ownership, operation, maintenance or use of. . . . [¶] Premises you manage in your capacity as a property manager, however, liability arising out of such activities will be excess over any valid and collectible insurance available to you.”

II. Underlying Litigation

On August 24, 2015, Matthew and Meagen Meyer, along with their five minor children, filed a federal lawsuit against Village and FPI seeking monetary, declaratory, and injunctive relief arising out of their tenancy at the apartment complex. The Meyer complaint alleged the following causes of action: (1) violation of the Fair Housing Act; (2) violation of the California Fair Employment and Housing Act; (3) violation of the California Unruh Civil Rights Act; (4) unfair business practices; and (5) negligence arising from the defendants’ failure to operate the complex in a non-discriminatory manner or to hire and train employees to comply with “state and federal fair housing rights laws.” The Meyers alleged that Village and FPI “engaged in a pattern or practice of discrimination against families with children . . . in the operation of” the apartment complex and created a hostile living environment for such families, including theirs.

The Meyer complaint alleged that the Meyers rented an apartment at the complex beginning in November 2011. Beginning in December 2011, FPI’s onsite property manager “frequently harassed” the Meyers “for things he presumed that their children had done.” The complaint also alleged that in or around July 2014, while the onsite manager was talking with Meagen Meyer, the manager’s dog bit one of the Meyer children and the manager “failed to pull the dog away from the child.” Afterward, the Meyers reported the incident to FPI and Village, complaining that the manager “also had regularly allowed his dog to walk freely at the complex without a leash.”

In May 2015, FPI and Village served two warning notices on the Meyers, which the Meyers claimed contained false allegations. After Meagen Meyer wrote a letter disputing the allegations and complaining that the family was being discriminated against because they had children, FPI and Village served the Meyers with a three-day notice to quit and then filed an unlawful detainer complaint. The Meyers moved out of the complex shortly thereafter. The Meyers alleged that they suffered emotional distress as a result of FPI and Village’s “unlawful acts and practices,” as well as constructive wrongful eviction, for which they were entitled to compensatory damages.

FPI tendered its defense and indemnification for the Meyer lawsuit to CCI. CCI “accepted tender and defended FPI . . . under a reservation of rights based on the potential for recovery of bodily-injury damages.” The defense of ROEM and Village was handled by another insurer, Evanston Insurance Company, pursuant to a discrimination liability insurance policy.

After FPI failed to tender its defense and indemnification for the Meyer lawsuit to Truck, CCI did so, requesting that Truck defend FPI based on the same potential for recovery of bodily-injury damages. In a responding letter, Truck stated it was “not in a position to either accept or reject your tender of defense” without further information. Truck acknowledged “the potential that some of the allegations would trigger a duty to defend,” but stated that “based on information that we currently have, our policy is excess.”

The Meyer lawsuit settled in early 2017. The total settlement amount of $325,000 to be paid to the Meyers was divided as follows: Evanston Insurance Company paid $125,000 on behalf of ROEM, CCI paid $125,000 on behalf of FPI, and FPI paid $75,000 for uncovered claims. Truck did not contribute to the settlement.

III. Equitable Contribution Action

A. CCI’s Complaint

Following the Meyer settlement, CCI filed a complaint for equitable contribution against Truck, claiming that the Meyer complaint “allege[d] the potential for the recovery of bodily-injury damages caused by a dog owned by FPI’s employee.” CCI alleged that, based on the Meyer’s dog bite claim, it had accepted the defense of FPI and requested that Truck do the same. However, Truck refused to contribute toward the almost $100,000 in costs incurred in FPI’s defense or to the $125,000 paid in the settlement. CCI alleged that FPI was “co-insured” under both policies, and therefore the costs incurred in defending FPI should have been “borne pro rata” by CCI and Truck.

B. Motion for Summary Judgment

Truck moved for summary judgment in August 2019. It argued that its policy provided coverage “only on an excess basis to any liability arising out of FPI’s activities as a property manager,” and therefore Truck was not required to contribute to FPI’s defense in the Meyer lawsuit. Truck pointed to a provision in the management agreement between Village and FPI that required Village to “obtain and keep in force commercially prudent amounts of property and commercial liability insurance . . . designating [FPI] as an insured. . . .” This provision further stated, “[Village’s] Insurance shall be primary. . . . In connection with any losses, casualties, claims or suits by third parties or liabilities to third parties, related to or arising from the [operation of the apartment complex], as between [Village’s] Insurance and any insurance [FPI] may have, [Village’s] Insurance shall be considered the primary coverage and any insurance maintained by [FPI] shall be secondary and non-contributing to [Village’s] Insurance. [Village’s] insurers shall endorse these coverage requirements, as they are material to the parties’ allocation of risk.”

Truck argued that the Meyer lawsuit triggered primary coverage under CCI’s policy and the need for excess coverage under Truck’s policy did not arise. It acknowledged that both policies “provided a potential for coverage for the bodily injury claim (dog bite) and personal injury claim (wrongful eviction),” but because the lawsuit arose “from FPI’s management of premises as a property manager, Truck’s coverage is excess to other available insurance,” based on Truck’s limitation of coverage.

In its opposition, CCI argued that Truck’s “excess-only” provision was “generally unenforceable” because it was effectively an escape clause.[3] CCI also argued that Truck had a duty to defend FPI based on the potential for coverage of a personal injury claim if the dog bite incident occurred outside the manager’s capacity as a property manager. CCI contended that in that instance, Truck’s policy would provide coverage while CCI’s would not. CCI attempted to distinguish between Truck’s coverage for acts occurring within the scope of the manager’s employment and CCI’s coverage for acts occurring while the manager was acting in his capacity as a property manager. As a result, if only Truck’s policy provided coverage, CCI asserted that Truck’s excess-only provision would not apply.

At the hearing on February 21, 2020, CCI’s counsel focused on CCI’s second argument, stating that there was a potential that a jury in the Meyer action could have found that the dog bite injury occurred while the property manager was acting within the scope of his duties. According to CCI’s counsel, under this scenario, FPI would be vicariously liable as the employer and that liability could be covered under Truck’s policy but not under CCI’s policy. As a result, CCI “would not have valid and collectible insurance, and, therefore, Truck’s excess-only clause does not kick in.” Truck’s counsel countered that it was a “nonissue” because CCI had a duty to defend the entire underlying action based on the allegations of wrongful eviction. CCI’s counsel agreed that CCI had a duty to defend the entire action, but argued that Truck had the same duty, triggered by the dog bite allegation. The court concluded, “I don’t believe that this issue about the fact that there’s a sliver of a possibility that there may be no coverage for the dog bite . . . puts Truck on the hook . . . because there was other insurance [CCI’s policy] by reason of the wrongful eviction claim. And because that was covered . . . [CCI] had to defend everything and, therefore, the, quote, sliver of possibility of noncoverage disappears.”

The court granted the motion. In its written ruling, the court found that Truck’s policy for FPI was excess to CCI’s policy. The court reasoned that Truck’s endorsement, together with the language of the management agreement between FPI and Village, carried Truck’s burden to establish that Truck’s policy was excess. The court found that the endorsement “contains a typical and unambiguous excess-only clause limiting Truck’s liability specifically for damages and injuries arising out of the activities of a property manager on the subject premises.” In addition, the court noted that the management agreement “unambiguously states that Roem’s insurance, namely its CCI policy, is primary, while FPI’s insurance, the Truck policy, is secondary and ‘non-contributing,’” a provision that the management agreement stated was “‘material to the parties’ allocation of risk’ and therefore intended by both parties.”

The court also rejected CCI’s argument that Truck’s excess-only clause was unenforceable as an escape clause. CCI relied on a line of cases disfavoring enforcement of excess-only clauses “in otherwise primary liability insurance policies” (Fireman’s Fund Ins. Co. v. Maryland Casualty Co. (1998) 65 Cal.App.4th 1279, 1305 (Fireman’s Fund)), because it would allow the insurer “to avoid the risk it was paid to cover” (Edmondson Property Management v. Kwok (2007) 156 Cal.App.4th 197, 203-204). Instead, the court relied on Hartford Casualty Ins. Co. v. Travelers Indemnity Co. (2003) 110 Cal.App.4th 710 (Hartford), and found Truck’s excess-only clause was enforceable because it “provides only a narrow exception to the coverage of the policy when liability arises from the activities of the property manager on the premises.” The court also found that the excess-only clause here did not function as an escape clause because Truck’s policy was not otherwise issued as a primary policy. Finally, the court declined to address CCI’s argument that Truck had a duty to defend FPI, because the court had determined Truck’s policy was excess, “which bars equitable contribution regardless of whether Truck had a duty to defend.”

The court found that CCI did not dispute the terms of the endorsement or the management agreement, and did not raise any triable issues of material fact as to its equitable contribution claim. Thus, the court concluded that Truck was “entitled to judgment as a matter of law.”

The court entered judgment in favor of Truck on March 26, 2020. CCI timely appealed.

DISCUSSION

CCI contends the trial court erred in granting summary judgment in favor of Truck. CCI argues that Truck’s excess-only clause functioned as an escape clause and is therefore inequitable and unenforceable. In addition, CCI points to the potential for coverage under Truck’s policy based on the dog bite allegations in the Meyer complaint. CCI asserts that this potential triggered Truck’s duty to defend as a primary insurer, and therefore Truck was required to equitably contribute to FPI’s defense. We agree with the trial court’s rejection of both arguments.

I. Legal Standards

A. Summary Judgment Principles

We review the trial court’s summary judgment ruling de novo. (See Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) “‘In performing our de novo review, we must view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing [the plaintiff’s] evidentiary submission while strictly scrutinizing [the defendant’s] own showing, and resolving any evidentiary doubts or ambiguities in plaintiff’s favor.’” (Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 100.)

A defendant moving for summary judgment must make a prima facie showing that there are no triable issues of fact in order to meet its initial burden of production. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 861; see also Code Civ. Proc. § 437c, subd. (c).) Once the defendant has met that burden, the burden shifts to the plaintiff to make a prima facie showing that a triable issue of material fact exists. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

Similarly, “because the interpretation of the insuring agreement is a question of law, we apply de novo review to any determinations as to that issue [citation], including the determination of whether the terms of an ‘other insurance’ clause in a defendant[‘s] . . . policy permits it to avoid contributing to the defense and indemnification costs the plaintiff . . . incurred.” (Underwriters of Interest Subscribing to Policy Number A15274001 v. ProBuilders Specialty Ins. Co. (2015) 241 Cal.App.4th 721, 727 (Underwriters); see also Travelers Casualty & Surety Co. v. Century Surety Co. (2004) 118 Cal.App.4th 1156, 1159.)

B. Equitable Contribution Principles

CCI has alleged a claim for equitable contribution from a co-insurer of a mutual insured. “Equitable contribution is the right to recover from a co-obligor who shares a liability with the party seeking contribution.” (North American Capacity Ins. Co. v. Claremont Liability Ins. Co. (2009) 177 Cal.App.4th 272, 295.) “[T]he right to contribution arises 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. . . . Equitable contribution permits reimbursement to the insurer that paid on the loss for the excess it paid over its proportionate share of the obligation, on the theory that the debt it paid was equally and concurrently owed by the other insurers and should be shared by them pro rata in proportion to their respective coverage of the risk.” (Fireman’s Fund, supra, 65 Cal.App.4th at p. 1293.) “‘As a matter of equity, insurers of the “same risk” may sue each other for contribution. [Citations.] This right is not a matter of contract, but flows “‘from equitable principles designed to accomplish ultimate justice in the bearing of a specific burden.’’’ [Citation.]’” (Id. at pp. 1293-1295; see also CSE Ins. Group v. Northbrook Property & Casualty Co. (1994) 23 Cal.App.4th 1839, 1844 (CSE) [“‘[t]he reciprocal rights and duties of several insurers who have covered the same event do not arise out of contract, for their agreements are not with each other’”].)

II. Analysis

1. Enforceability of Truck’s Excess-Only Provision

CCI argues that the trial court erred in enforcing the excess-only provision in Truck’s policy because that provision operated as an escape clause and allowed Truck to avoid contribution as a primary insurer. We disagree.

Contractual terms of insurance coverage are honored whenever possible. (Fireman’s Fund, supra, 65 Cal.App.4th at p. 1304.) “The courts will therefore generally honor the language of excess ‘other insurance’ clauses when no prejudice to the interests of the insured will ensue. However, there are many exceptions. For example, where two or more primary insurers’ policies contain excess ‘other insurance’ clauses purporting to be excess to each other, the conflicting clauses will be ignored and the loss prorated among the insurers on the ground the insured would otherwise be deprived of protection.” (Id. at pp. 1304-1305, citing Olympic, supra, 126 Cal.App.3d at p. 599.)

As our Supreme Court has explained, “‘Historically, “other insurance” clauses were designed to prevent multiple recoveries when more than one policy provided coverage for a particular loss.’ [Citation.] On the other hand, ‘other insurance’ clauses that attempt to shift the burden away from one primary insurer wholly or largely to other insurers have been the objects of judicial distrust. ‘[P]ublic policy disfavors “escape” clauses, whereby coverage purports to evaporate in the presence of other insurance. [Citations.]’” (Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1079–1080.)

CCI urges us to find that Truck’s excess-only clause functioned as an escape clause, in reliance on cases such as Underwriters, supra, 241 Cal.App.4th 721. In Underwriters, the defendant insurer declined to defend its insured on the basis of its broad “other insurance” clause that stated the insurer had “the right and duty to defend [the insured] against any suit seeking . . . damages [to which the insurance applied] provided that no other insurance affording a defense against such a suit is available to you.” (Id. at pp. 723-724.) The trial court granted summary judgment for the defendant, enforcing the “other insurance” clause, but the appellate court reversed. The Court of Appeal noted that the defendant acknowledged that its policies provided “at least overlapping ‘primary’ coverage” with the plaintiff’s policy for the claims asserted in the underlying lawsuit. (Id. at p. 728.) Accordingly, the court concluded that the clause was effectively “an escape clause: it provides that [the defendant] will be liable to pay for defense costs for any suit seeking damages to which its insurance applied, but then purports to extinguish that obligation when there is ‘other insurance affording a defense against such suit . . . available to you.’” (Underwriters, supra, 241 Cal.App.4th at pp. 729-730.) The court therefore found that the plaintiff was entitled to seek equitable contribution from the defendant “for defense costs incurred on behalf of their mutual insured.” (Id. at p. 732.)

Here, however, the trial court enforced the excess-only provision in reliance on Hartford, supra, 110 Cal.App.4th 710. We agree that Hartford is instructive because there, as here, the insured was covered as an additional insured on another policy and the excess-only provision applied to a specific type of liability, rather than being written as a broad escape clause. Hartford involved a dispute concerning the contribution rights of insurers for a building tenant and its landlord arising from a wrongful death action after one of the tenant’s employees fell from a balcony. The tenant’s lease required it to name the landlord as an additional insured under its liability insurance policy. Consistent with that agreement, the landlord’s policy declared it was “‘excess’” over other “‘Insurance . . . if [the landlord was] added as an additional insured under any other policy.’” (Id. at pp. 714–715.) The insurers settled the underlying action and then filed competing equitable contribution actions against each other. The trial court enforced the excess-only clause in the landlord’s policy and found the tenant’s insurer obligated to pay all of the underlying lawsuit’s defense and indemnity costs. (Id. at p. 724.)

The Court of Appeal affirmed. The court acknowledged the trend “against rigid enforcement of excess only clauses,” but found that “this case presents equities that favor enforcement of the excess clause as written.” (Hartford, supra, 110 Cal.App.4th at p. 726.) The court reasoned that “[t]he policies in this case contain narrow exceptions to their operation as primary insurance. There are no broad ‘excess only’ clauses in either policy that purport to make the coverage excess whenever there is other insurance. Both policies declare themselves to be excess in the situation where the parties and the insurers are most likely to intend that result—when the insured is covered as an additional insured on another party’s policy for some specific event or situation. A clause that carves out this intended exception to primary coverage is not similar to an escape clause, where the insurer appears to offer coverage that in fact evaporates in the presence of other insurance.” (Id. at pp. 726-727.) The court also noted that the provisions in the policies did not conflict with each other, in contrast to the cases rejecting the excess-only clauses where “[l]iteral enforcement of the policy language would have left the insured without coverage.” (Id. at p. 727.)

We find a similar balance of the equities here favoring enforcement of Truck’s excess-only clause. Truck’s limitation of coverage endorsement states that the coverage will be excess under one set of circumstances—for liability arising from premises FPI manages “in your capacity as a property manager.” Moreover, that Truck’s policy would operate as excess coverage for FPI’s property management activities is consistent with the expressed intent of both insured parties (FPI and Village) as reflected in the property management agreement, which states that Village’s insurance (CCI’s policy) “shall be considered the primary coverage and any insurance maintained by [FPI (Truck’s policy)] shall be secondary and non-contributing” to Village’s insurance. [Village]’s insurers shall endorse these coverage requirements, as they are material to the parties’ allocation of risk.” The intent by Village and FPI to allocate CCI’s policy as the primary policy is also reflected in the designation of FPI as an additional insured under CCI’s policy.[4]

CCI argues that Truck’s excess-only provision was broadly written to apply “to the entire universe of ‘valid and collectible insurance available’” to FPI, and thus “purports to make Truck’s coverage excess whenever there is any other insurance.” This argument ignores the language in Truck’s policy and the property management agreement. As in Hartford, Truck’s policy declared it was excess “in the situation where the [insured parties] and the insurers are most likely to intend that result—when the insured is covered as an additional insured on another party’s policy for some specific event or situation.” (Hartford, supra, 110 Cal.App.4th at p. 726.) Moreover, unlike Underwriters and similar cases cited by CCI, the policies here did not conflict with each other. Truck’s policy was excess as the liability at issue was related to FPI’s activities as property manager. CCI’s policy, issued as primary insurance, contained an excess-only provision that applied only when other insurance was available; here, there was no other primary insurance available and CCI’s excess provision did not apply.

As such, the trial court did not err in finding that Truck established it was the excess insurer and was not required to contribute to the settlement.

2. Potential for Coverage of Dog Bite Injury

CCI also contends that even if Truck’s policy was otherwise excess coverage, Truck had a duty to defend the action because of one “sliver” of potential liability related to the dog bite allegations in the Meyer complaint. Under this scenario, CCI argues, Truck’s policy was implicated where CCI’s policy was not. We are not persuaded.

We note that the Meyer complaint did not allege any damages arising from the dog bite. However, it is undisputed that both CCI and Truck acknowledged a potential for coverage based on the facts of the dog bite as alleged. (See Buss v. Superior Court (1997) 16 Cal.4th 35, 46 [“the insurer’s duty to defend runs to claims that are merely potentially covered, in light of facts alleged or otherwise disclosed”].) If both policies applied, then Truck’s policy would remain excess and CCI’s policy would provide primary coverage.

However, CCI argues that if the Meyer litigation had proceeded and included a claim for injury based on the dog bite, a jury could have potentially found that the injury occurred while the property manager was off duty. But because the manager was required to live on the premises of the apartment complex as part of his job, CCI contends that FPI could have been liable as an employer for off-duty conduct of the manager that was nevertheless considered to be within the scope of his employment. (See, e.g., Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608, 620 [discussing the “varied circumstances” imposing vicarious liability on an employer where “an employee may be acting in the scope of employment even though the injury occurred during an off-duty period”].)

In this circumstance, CCI argues that Truck’s policy would provide coverage for FPI’s liability but CCI’s would not, because CCI’s policy only covered conduct while FPI and its employee were “acting as your real estate manager.” But CCI fails to point to language in the policies or cite any authority to support this proposition. Indeed, both policies covered liability arising out of conduct by any person or organization “while acting as your real estate manager.” Thus, to the extent FPI was potentially liable because the property manager’s conduct was within the scope of his employment, CCI has failed to show that its policy would not be triggered based on the same conduct.

Moreover, a primary insurer has a duty to defend the entire action, “as to both the claims that are at least potentially covered and also those that are not.” (Buss v. Superior Court, supra, 16 Cal.4th at p. 58; see also Horace Mann. Ins. Co. v. Barbara B. (1993) 4 Cal.4th 1076, 1084 [primary insurer “has a duty to defend the entire third party action if any claim encompassed within it potentially may be covered”].) Here, as an undisputed primary insurer covering potential claims in the Meyer action for wrongful eviction and bodily injury, CCI had a duty to defend FPI entirely. Thus, from Truck’s viewpoint as the excess insurer, there was “other insurance available” for the entire action and Truck was not required to defend as a primary insurer. (See Padilla Construction Co., Inc. v. Transportation Ins. Co. (2007) 150 Cal.App.4th 984, 988 [“the lone defending primary insurer had a duty to ‘defend entirely,’ and so, from the point of view of the excess insurer, there was indeed ‘other insurance’ available”].) Consequently, we agree with the trial court that Truck’s policy provided excess coverage, and CCI was not entitled to seek contribution for the Meyer litigation costs.

DISPOSITION

The judgment is affirmed. Truck is awarded its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

MANELLA, P. J.

WILLHITE, J.

[1] The parties have not alleged any relevant differences between the 2014 and 2015 policies.

[2] The parties treat ROEM and Village interchangeably for the purposes of the summary judgment motion at issue.

[3] As the court explained in Olympic Ins. Co. v Employers Surplus Lines Ins. Co. (1981) 126 Cal.App.3d 593, 598 (Olympic), “Most insurance contracts include some provision attempting to limit the insurer’s liability in the event that another insurance policy covers the same loss. [¶] There are several typical forms of ‘other insurance’ clauses: [¶] 1. Pro rata. This clause provides that if there is other valid and collectible insurance, then the insurer shall not be liable for more than his pro rata share of the loss. [¶] 2. Excess. This clause provides that if there is other valid and collectible insurance, then the insurer shall not be liable except to the extent that the loss exceeds such other valid and collectible insurance (i.e., this policy shall be excess to other valid and collectible insurance). [¶] 3. Escape. This clause provides that the insurer is not liable for any loss that is covered by other insurance (i.e., the existence of other insurance extinguishes insurer’s liability to the extent of such other insurance).”

[4] CCI’s reliance on Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059 (Dart) does not change this result. In Dart, the Supreme Court discussed the general policy disfavoring escape clauses. (Id. at pp. 1079-1080, citing Fireman’s Fund, supra, 65 Cal.App.4th at pp. 1305-1306.). The court then considered whether an insurer had the burden to prove the existence and terms of an “other insurance” clause where the policy had been lost. (Dart, supra, 28 Cal.4th at pp. 1065, 1078-1079.). Ultimately, the court concluded that regardless of the type of “other insurance” clause, the insurer had the obligation to defend the insured because it was undisputedly a primary insurer during its policy period and, at most, could seek contribution from insurers covering successive periods. (Id. at pp. 1080-1081.) Those circumstances are inapplicable to the policies at issue here.