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Golden Eagle Insurance Co. v. Century Surety Company12/8/2003
ther insurers had discharged their duties under their "pro rata" provisions. (Century, supra, 109 Cal.App.4th at pp. 1256-1257.) The Century Surety Co. court concluded that this result was improper, and that the "excess only" and "pro rata" provisions should be set aside in favor of an equitable pro rata apportionment of settlement funds and defense expenses. (Id. at p. 1260.)
It is unnecessary for us to revisit this conclusion. As we have explained (see p. B., ante), upon tender of the defense in the Solemint action, Century failed to identify facts demonstrating that the "excess only" clause discharged its duty to defend, and these facts were never subsequently developed. For this reason, the situation envisaged in Century Surety Ins. was not established in the present case. Because summary judgment is properly affirmed on grounds other than those addressed in Century Surety Ins., we decline to reassess the holding in that case.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
We concur:
VOGEL (C.S.), P.J.
EPSTEIN, J.
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