Low, Ball & Lynch’s
WEEKLY LAW RESUME
November
18, 2004 Issue By: Raymond
Coates
Duty to Defend - Contribution
Among Insurers
Mercury Insurance Company v.
Allstate Insurance Company
Court of Appeal, Second District
(November 9, 2025)
In 1995, the Legislature enacted a new law that states where two or more
personal policies provide liability coverage for the same motor vehicle
involved in an accident, and one is primary and one is excess, each insurer
must pay the cost of defense in proportion to the percentage of total damages
paid by that insurer. This case is the first case to interpret that law.
Mercury Insurance Company issued a policy of automobile liability insurance
to Alex Tsiboukas insuring four vehicles with limits of $100,000 per person and
$300,000 per accident. Allstate Insurance Company issued a personal
umbrella to Alex Tsiboukas with a $1 million per occurrence limit.
Tsiboukas' daughter was involved in an accident wherein four people were
seriously injured. The litigation involving their claims was eventually
settled by both carriers paying policy limits of $1.3 million. Mercury
paid the entire defense in the sum of $23,656.59. Mercury then sued
Allstate for contribution for the cost of defense. Relying on Insurance Code
section 11580.9(g), the trial court awarded Mercury $18,197.38. Allstate
appealed.
The Court of Appeal affirmed. The central argument of Allstate on
appeal was that its policy was not an automobile liability policy, and
therefore, it was error to require it to contribute to the cost of
defense. The Court disagreed, primarily relying upon the language of
Insurance Code section 11580.9(g). That code section provides that where
two or more personal policies provide liability insurance for the same motor
vehicle involved in an accident, and one policy, "as defined in
subdivision (a) of section 660," is primary, and the other policy,
"as defined in section 108," is excess, then the sharing of defense
costs in the same percentage as the payment of indemnity applies.
The Court looked to the two code sections referenced. Section 660 of
the Insurance Code defines what is an automobile liability policy.
Section 108 of the Insurance Code defines what is a general liability insurance
policy. The Court felt it was clear that the Legislature was referring to
a primary automobile liability policy and an excess general liability insurance
policy. The Court rejected the argument that the section was intended to
be limited to excess automobile liability insurance policies.
The Court noted the general rule that an excess carrier is not required to
pay defense costs unless the primary policy is exhausted. It appeared to
be the intent of the Legislature to change this rule in this specific
situation. The Court felt the wisdom of the legislation was not for it to
question. However, it did note that the statute might encourage excess
carriers to participate earlier in settling a case in order to minimize the
cost of defense.
The Court felt there was nothing in the statute that showed it was meant to
apply only to the situation where two primary automobile policies apply and one
of them is rendered excess by an operation of law. The Court felt that
the Legislature intended to regulate the interaction of various levels of
insurance that cover death or injury to persons or property caused by the
operation of motor vehicles. The judgment was affirmed.
COMMENT
This is the first case to interpret Insurance Code section 11580.9(g).
Due to the importance of this issue to personal umbrella carriers, we expect an
effort will be made to have the Supreme Court take a look at this case.
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