Usaa

Defendants Alaska Insurance Company and its successor in interest New Hampshire Insurance Company (collectively New Hampshire) appeal a judgment requiring New Hampshire, as a primary insurer, to reimburse plaintiff United Services Automobile Association (USAA), as an excess insurer, the money USAA paid to settle a bad faith action brought against it by an injured third party claimant as the assignee of the parties’ mutual insured. New Hampshire contends: (1) USAA cannot maintain this action because it was not an excess carrier as to the subject claim; (2) USAA is not an equitable indemnitee of New Hampshire; (3) USAA is estopped from claiming it is an excess carrier; (4) USAA waived any claim that it is an excess carrier; (5) USAA’s payments in settlement of the bad faith action were made as a volunteer; and (6) the court erred in awarding USAA its attorney fees in the present action. We reverse.

Factual and Procedural Background

The facts essential to the resolution of this appeal are undisputed. In 1989, in Anchorage, Alaska, Dr. Claudewell Thomas and his wife, Carolyn Thomas, rented a car and were involved in a collision with another vehicle while Mrs. Thomas was…