Turner Construction Co. v. Zurich Insurance

MEMORANDUM *

Turner Construction Company (“Turner”) appeals the district court’s grant of summary judgment in favor of Zurich Insurance Company (“Zurich”) on Turner’s claim for indemnification as an additional insured under a series of Zurich-issued insurance contracts. Turner seeks indemnification after settling without Zurich’s consent in an underlying lawsuit in which *534 Zurich was defending Turner. We affirm. Because the parties are familiar with the facts of the case, we do not recount them here.

Turner first alleges that the district court erroneously assigned it the burden of proof as to Zurich’s affirmative defense that Turner breached the No Voluntary Payments (“NVP”) Clause. On appeal, both parties correctly state that Zurich bears the burden as to this affirmative defense, as it would bear the burden of proving breach at trial. See C.A.R. Transp. Brokerage Co., v. Darden Rests., Inc., 213 F.3d 474 , 480 (9th Cir.2000). To establish breach, Zurich must show that Turner failed to secure its consent to the settlement. Because Zurich’s lack of consent was undisputed, Zurich carried its burden of showing no genuine issue of material fact on the question of whether the…