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Fireman''s Fund Insurance. Co. v. Maryland Casualty Co.7/31/1998
order to avoid a multiplicity of suits. (Watson v. Sutro (1890) 86 Cal. 500, 528; 11 Witkin, Summary of Cal. Law, supra, Equity, ยง 2, p. 680.) There was no error in allocating the cost of indemnifying the parties' insured on an equal basis.
Maryland also asserts that it deserves a set-off in the amount of $5,500 for being on the risk only 44.5 percent of the time, rather than half. The record shows that the trial court exercised its discretion to allocate defense and indemnification costs on a 50-50 basis as a matter of equity, based on the parties' overlapping one-year insurance policies between 1978 and 1992. The court determined that Maryland and Fireman's Fund had each provided eight one-year liability insurance policies to their mutual insured, Hanf, during the relevant time period. A trial court's determination of the correct allocation to impose for purposes of contribution is a matter of distributive Justice and equity, not of contractual specifics. (Signal Companies, Inc. v. Harbor Ins. Co., supra, 27 Cal.3d at p. 369.) In view of the fact Fireman's Fund stepped into the breach to undertake the defense of its insured when Maryland refused to accept the tender of defense despite its obligation to do so, the 50-50 allocation of defense costs in this case was well within the trial court's equitable discretion. (Continental Cas. Co. v. Zurich Ins. Co., supra, 57 Cal.2d at pp. 35-38.) Any discrepancy based on the actual number of months each insurer was "on the risk" was truly de minimis.
IV. Disposition
The judgment is affirmed. Each side shall bear its own costs on appeal.
We concur: Hanlon, P.J. Reardon, J.
Trial Court: Marin County Superior Court
Trial Judge: Hon. Lynn Duryee
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 California Personal Injury Attorneys
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