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Reliance National Indemnity Co. v. General Star Indemnity Co.6/9/1999
CERTIFIED FOR PARTIAL PUBLICATION*
APPEAL from a judgment of the Superior Court of Los Angeles County, Edward M. Ross, Judge. (Retired Judge of the superior court sitting under assignment by the Chairperson of the Judicial Council.) Affirmed.
I. introduction
Plaintiff, Reliance National Indemnity Company (Reliance), appeals from summary judgment entered in favor of defendant, General Star Indemnity Company (General Star), on a complaint for indemnity and contribution. Reliance seeks complete indemnity from Golden Star for monies expended in defense and settlement of a lawsuit in federal court in Rhode Island. We affirm because we conclude the principal authority relied upon by Reliance, Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975) 13 Cal.3d 622, 628-635 (Rossmoor hereafter), is not controlling in this case which involves a coverage dispute between primary and excess insurance carriers.
I. background
A. The Parties, Policies, and the Underlying Lawsuit
This action is based upon several insurance policies issued to Don Law Company, Inc. ("Don Law") and Lollapalooza Joint Venture, a joint venture of Perry Farrell doing business as Bells Are Ringing, Inc., Ted Gardner doing business as Woomera, Inc., and William Morris Agency doing business as Morwill Entertainment, Inc. For purposes of clarity, the joint venture will be referred to as "Lollapalooza" in the balance of this opinion. Lollapalooza entered into a written contract dated June 18, 1994, with Don Law. Under the June 18, 1994, contract terms, Lollapalooza agreed to sponsor a musical festival on August 3, 1994, at Providence, Rhode Island. The contract provided that it would be construed solely under the laws of the State of California. The June 18, 1994, contract required Don Law to indemnify and hold Lollapalooza harmless for personal injury loss, damage, or expense. Paragraph 21 of the contract, in which Don Law was identified as the "PURCHASER," provides: "PURCHASER hereby indemnifies and holds PRODUCER and ARTIST, as well as their respective agents, representatives, principals, employees, officers and directors, harmless from and against any loss, damage or expense, including reasonable attorney's fees, incurred or suffered by or threatened against PRODUCER or ARTIST or any of the foregoing in connection with or as result of any claim for personal injury or property damage or otherwise brought by or on behalf of any third party person, firm or corporation as a result of or in connection with the engagement, which claim does not result from the active negligence of the ARTIST and/or PRODUCER." It is this indemnification clause upon which Reliance relies on in large part to support its contention that Rossmoor, Inc., supra, 13 Cal.3d at pages 628-635 is controlling in this case.
The June 18, 1994, contract further required Don Law to purchase commercial general or public liability insurance naming Lollapalooza as an additional insured and with a combined single limit of $5 million aggregate per occurrence and $5 million total per event. Paragraph K provided: "1. Purchaser shall secure at its sole cost and expense, Commercial General (or so-called "Public") Liability Insurance covering any claims, liabilities, or losses resulting directly or indirectly from injuries to any person (including Bodily Injury and Personal Injury) and from any Property Damage and/or Loss in an amount of a combined single limit of Five Million Dollars ($5,000,000 U.S.D.) aggregate per occurrence and Five Million Dollars ($5,000,000 U.S.D.) aggregate per event placed with an insurance company acceptable to PRODUCER and naming PRODUCER and its principals and their respective officers, partne
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