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Subject: August 24 2006 LBL Weekly Law Resume

Low, Ball & Lynch’s

WEEKLY LAW RESUME

August 24, 2006  Issue  By: Ray Coates

 

Coverage - CIGA - Covered Claims

 

Parkwoods Community Association v. California Insurance

Guarantee Association

(August 7, 2006)

 

Court of Appeal, First District

 

California Insurance Guarantee Association (“CIGA”) commonly takes the position that where there is other insurance that covers a claim, it is not obligated to contribute to a settlement or judgment. This case considers that issue in a construction defect context.

 

Parkwoods Community Association (“Parkwoods”) sued the developer and general contractor for the construction defects in a condominium development. Five subcontractors were insured by Reliance Insurance Company. Reliance was placed in liquidation, causing CIGA to assume their defense. The action was settled by the developer and general contractor paying an amount that exhausted their primary commercial general liability coverage, and included a contribution from their excess insurance carrier that did not exhaust that coverage. The five Reliance subcontractors had indemnity agreements with the developer and general contractor that provided for Type I indemnity. The settlement was approved as in good faith. A declaratory relief action was then brought to determine whether CIGA was obligated to pay the amount that had been paid by the excess insurance carrier. On cross-motion for summary judgment, the trial court found CIGA was obligated to pay the disputed amount. CIGA appealed.

 

The Court of Appeal reversed. The Court started with the purpose of CIGA, which is to provide a limited form of protection for the public when an insurer becomes insolvent. It is not a fund to protect other insurance carriers. The statutes establishing CIGA provide that the claims it must pay do not include any claim to the extent it is covered by any other insurance. CIGA contended the excess insurance policy of the developer and contractor provided other insurance, and thus the claim was not covered.

 

The trial court found that CIGA was not exempt from paying because the Reliance insureds did not purchase the excess coverage, and had no right to the coverage the developer and contractor had purchased. The Court of Appeal did not find that dispositive. The Court stated the issue was whether there was any other insurance that was available to cover the claim. Here, since all parties were jointly and severally liable to the claimants, the coverage provided by the excess coverage was available to satisfy the Parkwoods claim.

 

The indemnity claim of the developer and contractor was therefore not collectible from CIGA. To do so would sanction an indirect recovery that could not be obtained directly. On the stipulated facts, it was clear that there was other insurance available to satisfy the Parkwoods claim. Because such insurance was available, the claim was not a “covered claim.”  Thus, CIGA was not liable for any portion of the settlement. The judgment was reversed and remanded with instructions to enter judgment in favor of CIGA.

 

COMMENT

 

In a multi-party case, it is not uncommon that CIGA is a party. This decision will fortify the position commonly taken by CIGA that, if there is any other coverage available to satisfy the claim, CIGA does not need to contribute.

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