Zurich American Insurance v. Lim & Nascimento Engineering Corp.

MEMORANDUM

Zurich American Insurance Company (Zurich) appeals the dismissal of its action against Lim and Nascimento Engineering (LAN) — for subrogation and equitable contribution arising out of Zurich’s defense of Riverside County (County) in a tort suit— on res judicata and collateral estbppel grounds. We have jurisdiction under 28 U.S.C. § 1291 (2012), and we affirm on the basis of res judicata.

In the noninsurance context, the Supreme Court of California has held that “unless the parties’ agreement expressly provides otherwise, a contractual indemnitor has the obligation, upon proper tender by the indemnitee, to accept and assume the indemnitee’s active defense against claims encompassed by the indemnity provision.” Crawford v. Weather Shield Mfg. Inc., 44 Cal.4th 541, 555 , 79 Cal.Rptr.3d 721 , 187 P.3d 424 (2008). In the previous cross-complaint between the County and LAN, the Riverside County Superior Court held unambiguously that the allegations in the underlying tort suit and, consequently, the allegations in the cross-complaint, never triggered LAN’s contractual duty to indemnify or defend the County. LAN did not breach its contractual obligations to the County because…