From: Publish [[email protected]]
Sent: Wednesday, August 02, 2026 6:29 PM
To: READERS
Subject: August 3 2006 LBL Weekly Law Resume

Low, Ball & Lynch’s

WEEKLY LAW RESUME

August 3, 2006  Issue  By: Ray Coates

 

Coverage - Contribution

 

Employers Ins. Co. of Wausau v. Travelers Indemnity Co.

(June 16, 2006)

 

Court of Appeal, First District

 

The principle that an insurer who has defended an action may pursue a non-defending insurer for contribution is well established. This case concerns whether such an action can be brought where the insured has released the non-defending insurer.

 

The insurers to this action sequentially insured a succession of companies that had allegedly released hazardous contaminants from a manufacturing plant. In 1997 and 1998, the insured settled with a number of insurers, including the defendants to this action, to resolve disputed coverage claims as part of the litigation known as the “Jensen-Kelly” action. The settlement included a release from defense or indemnification of any past, present, or future environmental actions, and an indemnification agreement by the insured to the carriers against any claims under their policies, including claims for contribution.

 

The present action was triggered by two additional cases filed against the insured for different plaintiffs for bodily injury and property damage due to environmental contamination. Wausau defended and indemnified. It then filed an action against the insurers who had previously settled the “Jensen-Kelly” action in order to obtain contribution. The trial court found that Wausau was entitled to contribution despite the settlement. An appeal was filed.

 

The Court of Appeal affirmed. The Court rejected the notion that an insurer could avoid contribution to other insurers by settling with the policyholder. This is because contribution rights are based on equitable principles, which exist independent of the rights of the insured. This duty to share in the cost of defense and indemnification does not depend on whether the prior actions were settled or not. This is because the rights are grounded in equity, not contract. Further, since there was no evidence that the settlements exhausted coverage, there was no bar to seeking contribution.

 

The Court also refused to give the settling insurers an offset for the amount that they had paid. There was no showing that anything paid to settle the prior action had any effect on the amount owing under the current action.

 

As to the amount of liability, the Court agreed with the trial court that defense costs should be apportioned based on the “time on the risk” approach. The Court concluded that the trial court’s method of allocation was within its broad discretion. The judgment was therefore affirmed.

 

COMMENT

 

In trying to analyze ways in which the settling insurers could  have been protected against future contribution actions, the Court hints at various ways, including exhaustion of policies, rescission of policies, or perhaps, a buy-back of coverage. However, the Court indicated that the actual effect of the agreements will be looked at, rather than their characterization, as exhausting, rescinding, or cancelling the policy.

____

To order a printed version of this analysis, or change your subscription information, reply to this transmission Information regarding this and other WEEKLY LAW RESUME TM articles is available from Raymond Coates at (650) 366-4000, [email protected] or at WWW.LOWBALL.COM. The WEEKLY LAW RESUME TM is published fifty-two times a year, and is a complimentary publication of LOW, BALL & LYNCH, Attorneys at Law, a Professional Corporation, with offices in San Francisco, Redwood City and Monterey, California.