SAFECO INSURANCE COMPANY OF AMERICA v.
SUPERIOR COURT OF
LOS ANGELES COUNTY
Filed 6/22/06
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
| SAFECO INSURANCE COMPANY OF AMERICA et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; CENTURY SURETY COMPANY, Real Party in Interest. | No. B189637 (Super. Ct. No. BC314676) |
ORIGINAL PROCEEDING; petition for a writ of mandate, Aurelio Munoz, Judge. Petition granted in part, denied in part.
Summers & Shives, Robert V. Closson and Ian G. Williamson for Petitioners.
No appearance for Respondent.
Woolls & Peer, John E. Peer; Dunn Koes, Pamela E. Dunn and Daniel J. Koes for Real Party in Interest.
Sonnenschein Nath & Rosenthal, Paul E. B. Glad and David R. Simonton for the Association of California Insurance Companies, TIG Insurance Company and Fairmont Specialty Insurance Company as Amici Curiae on behalf of Real Party in Interest.
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We hold that in an action for equitable contribution by a settling insurer against a nonparticipating insurer, the settling insurer has met its burden of proof when it makes a prima facie showing of coverage under the nonparticipating insurer's policy -- the same showing of potential coverage necessary to trigger the nonparticipating insurer's duty to defend -- and that the burden of proof then shifts to the recalcitrant insurer to prove the absence of actual coverage.
FACTS
A.
Thirteen construction companies purchased commercial general liability insurance from either Safeco Insurance Company of America or American States Insurance Company, and the same 13 insureds later purchased additional commercial general liability policies from Century Surety Company. All of the policies were primary for the relevant times, and all provided coverage for property damage that occurred within the policy period and arose from the scope of the contractors' work.
In 17 separate lawsuits, the 13 insureds were sued for property damage allegedly arising from their work during the periods covered by the Safeco, American States, and Century policies. In each case, the insured tendered its defense to its two insurers (either to Safeco and Century or to American States and Century). In every case, Safeco and American States accepted the tenders and provided a defense under a reservation of rights (and provided indemnity in those cases that settled), but Century rejected all tenders and refused to participate, relying on an â€
