Insurance: Carriers Battling It Out On Defense Costs Allocation Bear The Burden Of Showing Each Paid A “Fair Share” Before Chasing Other Carriers

Second District, Division 3 Applies Non-Insurance Equitable Contribution Rule in Insurance Setting.

     In Scottsdale Ins. Co. v. Century Surety Co., Case No. B204521 (2d Dist., Div. 3 Mar. 10, 2010) (certified for partial publication), Acting Presiding Justice Croskey—on behalf of a 3-0 panel of the Second District, Division 3—penned a scholarly opinion about the burden of producing evidence of “fair share” payments for defense and indemnity costs with respect to common insureds in a multiple insurance carrier context. In essence, the Court of Appeal applied the general rule relating to equitable contribution in a non-insurance context, namely, that a carrier claiming contribution must first prove that it paid more than it share of loss as a condition to seeking relief.