Lexington Insurance v. Allianz Insurance

dissenting.

I agree with the majority’s conclusion that both the Lexington and Allianz insurance policies afforded primary coverage. However, I respectfully disagree with the conclusion that the Lexington and Allianz policies insured completely different interests. The majority, citing Alexander v. Security-First Nat. Bank of Los Angeles, 7 Cal.2d 718 , 62 P.2d 735, 737 (1936), correctly notes that California law distinguishes between the insurable interests of lessors and lessees. However, it then holds that “Allianz’s policy insures the owner’s interest in the property, an interest in fee, whereas Lexington’s policy insures the tenant’s interest in the property, a leasehold interest.”

However, Lexington’s policy, which insured the lessee, explicitly provided that it insured, as “Additional Insureds ... Any lessor, lessee or other party as required under the terms and conditions of any lease, contract, or agreement entered into by the insured.” The lease between the insureds required the lessee to purchase fire insurance “to the extent of at least ninety percent (90%) of the full insurable replacement value thereof on the building in which the demised premises are a part, and…

MEMORANDUM **

Lexington Insurance Company appeals the district court’s grant of summary judgment to Allianz Insurance Company on Lexington’s equitable contribution claim. We affirm. Because the parties are familiar with the factual and procedural history of the case, we will not recount it here.

Equitable contribution in the insurance context is a proper remedy when “several insurers are obligated to indemnify or defend the same loss or claim, and one insurer has paid more than its share of the loss or defended the action without any participation by the others.” Fireman’s Fund Ins. Co. v. Maryland Cas. Co., 65 Cal. App.4th 1279 , 77 Cal.Rptr.2d 296, 303 (1998). To establish a claim for equitable contribution three elements must be satisfied: (1) the insurers must share the same level of obligation, (2) on the same risk, (3) as to the same insured. Id. at 304 n. 4. If any one of these elements is not met, the equitable contribution claim must fail. We disagree with the district court’s conclusion that the two insurers did not share the same level of obligation; however, we affirm summary judgment for Allianz because Lexington and Allianz did not insure the same risk.

*574 A.…