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Scottsdale Insurance Company v. National Union Fire Insurance Company of Pittsburgh1/30/2002
the same proportion as they contributed to the judgment.
Appellants argue that, in Fireman's Fund Ins. Co. v. Maryland Casualty Co., supra, 65 Cal.App.4th 1279, "neither [of the insurers in the case] questioned the fact that standard `other insurance' clauses applied equally to defense and indemnification costs." Of course, " n opinion is not authority for a point not raised, considered, or resolved therein. [Citations.]" (Styne v. Stevens (2001) 26 Cal.4th 42, 57-58.) Interestingly, however, the excess clauses in Fireman's Fund did expressly apply to the duty to defend. They provided: "`This insurance is excess over any of the other insurance . . . [ ] . . . [ ] hat is valid and collectible insurance . . . . [ ] When this insurance is excess, we will have no duty . . . to defend any claim or "suit" that any other insurer has a duty to defend.'" (Fireman's Fund Ins. Co. v. Maryland Casualty Co., supra, 65 Cal.App.4th at p. 1303, fn. 8, italics added.) Precisely because the parties did not distinguish between defense costs and indemnity, the opinion did not quote the pro rata clauses involved. (See id., at p. 1303.) Thus, appellants cannot show that they did not apply to the duty to defend. Certainly that would explain why the issue was not raised.
We therefore conclude that the "other insurance" clauses at issue are not in conflict. We can give effect to the duty-to-defend provisions of both appellants' policies and Scottsdale's policies at the same time.
At oral argument, counsel for appellants, relying on the maxim that the duty to defend is broader than the duty to indemnify, asserted that we were the first California court ever to hold that an insurer had a duty to indemnify but no duty to defend. We must decline that honor, however, because it belongs to the California Supreme Court.
In Signal Companies, Inc. v. Harbor Ins. Co., supra, 27 Cal.3d 359, the primary insurer defended an action against the insured which was settled with a payment by the primary insurer of $25,000, its policy limits, and a payment by the excess insurer of $10,000. (Id., at p. 363.) The primary insurer then sought contribution to the defense costs from the excess insurer. (Id., at p. 364.) The excess insurer's policy provided that it was subject to the same terms and conditions as the primary policy, "`except as regards . . . the obligation to investigate and defend '"; that if a claim appeared likely to exceed the primary limits, the primary insurer was required to obtain the excess insurer's written consent before incurring defense costs; and that the excess insurer would be liable for defense costs only if it had consented "`to the proceedings continuing[.]'" (Id., at pp. 362-363, italics omitted.)
The Supreme Court held that the excess insurer had no obligation to contribute to the defense costs because the primary insurer had not sought its consent until after the underlying action had already been settled. (Signal Companies, Inc. v. Harbor Ins. Co., supra, 27 Cal.3d at pp. 365-371.) The court specifically rejected the argument that the excess insurer had a duty to contribute to the defense because it had a duty to contribute to the settlement. (Id., at pp. 368-369.) In other words, it held that, on the facts presented, the excess insurer had a duty to indemnify but no duty to defend.
Appellants argue that enforcing Scottsdale's escape clause would prejudice Davey by reducing the total funds available for its defense. Appellants waived this argument by failing to raise it below. (In re Marriage of King (2000) 80 Cal.App.4th 92, 117.) Separately and alternatively, even if not waived, it lacks merit. Scottsdale responds by noting that appellants have agree
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