Expert Commentary

The Courts and Equitable Subrogation versus Equitable Contribution (Part 2)

What must an insurer that settled a suit against its insured prove in order to obtain reimbursement from an insurer that provided additional insured coverage, but did not pay? What happens when the policies in question provide overlapping coverage? This is a question that is the basis of much recent litigation.


Additional Insured Issues
September 2004

Part 1 of this series explained the difference between equitable subrogation and equitable contribution—and how many courts have confused the two. This article focuses on cases of overlapping coverage, or mutually exclusive coverage where unresolved factual questions make it impossible to determine which policy applies, but both potentially do. Part 3 examines the conflicting decisions of the First and Third Districts of the Illinois Appellate Court and the issues to be resolved by the Illinois Supreme Court.

Duplicating or Overlapping Insurance Policies

"Few areas in the field of insurance law give courts and parties more difficulty than that of duplicating or overlapping insurance."2 In cases of overlapping coverage, where the two insurers cover different risks but with respect to the particular loss at issue, they both provide coverage (or at least potentially do), courts have taken different approaches. Some courts have regarded the policies as covering the same risk, despite the difference in the scope of coverage, and have approved of an action for equitable contribution for partial reimbursement, rather than an action for equitable subrogation for full reimbursement.3

In Fire Ins. Exch. v American States Ins. Co.,, 39 Cal App 4th 653, 46 Cal Rptr 2d 135 (Cal App 1995), the settling insurer settled a bodily injury claim arising out of construction work at a home. The injured man was employed by a subcontractor, and he sued the owners (husband and wife) and the general contractor (who was the husband's father). The homeowners' primary and excess insurers, Fire and Truck respectively, covered the owners and the father/general contractor, since he resided with them during the construction. The father also had his own personal umbrella policy issued by American States, but which covered only him, not his son and daughter-in-law. Fire and Truck settled the underlying injury suit on behalf of the husband, wife, and father, without any contribution from American States, and then sued American States for equitable contribution.

American States contended that it was not subject to equitable contribution without a judicial determination that its only insured, the father, was at fault. The court of appeal rejected this contention, stating as follows:

American States has cited no California authority holding that equitable contribution requires a specific finding of each insured's comparative fault. Such a rule would hamper settlements and require the defendant to prove its own fault before the defendant's insurer could seek equitable contribution. [39 Cal App 4th at 663, 46 Cal Rptr 2d at 140.]

To the same effect is Indiana Ins. Cos. v Granite State Ins. Co., 689 F Supp 1549 (SD Ind 1988). In that case, after settlement of a personal injury suit by a person injured in a swimming pool in an apartment complex, the liability insurer of the owners and managers of the apartment complex (the Hatfields) sought equitable contribution from the liability insurer for the builder of the complex (also the Hatfields). The underlying complaint alleged that the Hatfields were negligent in both their design and construction of the pool, and also in their maintenance and operation of the pool. The Granite State policy provided completed operations coverage to the Hatfields for the design and construction of the pool, and also covered them for the negligent maintenance and operation of the pool. The Indiana policy did not include completed operations coverage, however. That policy, therefore, covered only the negligent maintenance and operation of the pool, and not negligent design and construction.

Despite this difference in causes of loss covered, the court found that the policies covered identical risks:

However, identity of casualty or risk does not require identity of coverage under the applicable policies as Granite State seems to suggest. "The requirement that there be an identity of risk does not mean that the total coverage under both policies be the same, but only that with respect to the harm suffered there be coverage under both policies." [689 F Supp at 1558.]

This is the view taken by Couch on Insurance 3d at 218:6:

It is not necessary that the policies provide identical coverage in all respects in order for the two policies to be considered concurrent, and each insurer entitled to contribution from the other; as long as that particular risk actually involved in the case is covered by both policies, the coverage is duplicate, and contribution will be allowed. To illustrate, the fact that the first liability insurer's policy covered only property damage while the second insurer's policy covered bodily injury and property damage did not relieve the first insurer from having to contribute; both policies covered the same risk because both provided coverage for property damage that occurred during their respective policy periods. [Emphasis supplied.]

Focusing on the Underlying Facts

Some courts have remanded such disputes to trial courts for factual determinations as to the cause of loss in order to permit a determination as to which insurer was primarily liable for the loss. For example, in North American Ins. Co. v Kemper National Ins. Co., 325 Ill App 3d 477, 758 NE2d 856 (1st Dist 2001), an action for equitable subrogation by a group health insurer against a workers compensation insurer concerning medical bills for work-related injuries, where the group health plan excluded work-related injuries and the workers compensation policy covered only work-related injuries, the employee in question had a complicated medical history that made it a difficult factual question whether the disputed medical bills were work-related or rather, due to preexisting, non-work related conditions.

The court noted that despite the exclusion in the group health insurer's policy for work-related injuries, "there was a potential for liability against North American [the group health insurer]." 325 Ill App 3d at 483, 758 NE2d at 861. The court therefore reversed the summary judgment in favor of the workers compensation insurer and remanded the case for an evidentiary hearing to determine which disputed medical bills, if any, were work-related and thus subject to a right of equitable subrogation, or if, on the other hand, the bills were so clearly work-related that the group health insurer's payments should be deemed voluntary, and thus an inadequate basis for subrogation.

The parties agreed that this was not an appropriate case for equitable contribution, because the policies covered different risks. The court reasoned that there was an overlap between the two policies, however, because under applicable workers compensation law, "the fact that a workers compensation claimant may have had a preexisting condition does not preclude an award of benefits upon her showing her condition was aggravated or accelerated by the employment." 325 Ill App 3d at 483, 758 NE2d at 860. Thus, under this view, both insurers may have been responsible for at least some of the disputed bills, to the extent that they represented treatment of a non-work related condition aggravated by the on-the-job injury. It would seem that as to these bills, then, equitable contribution would have been the appropriate remedy.

Likewise, in State Farm Fire & Cas. Co. v Cooperative of American Physicians, Inc., 163 Cal App 3d 199, 209 Cal Rptr 251 (Cal App 1984), where a medical practice group's premises liability insurer settled a claim by a patient injured by a fall from an examination table, the court reversed the dismissal of the equitable subrogation claim on the pleadings, stating as follows:

The equitable issue of State Farm's right to recover damages from Cooperative and Mutual does not arise until the legal issue—i.e., whether Smith's injuries were caused by negligent maintenance of the premises or medical malpractice—is determined in its favor. We know of no legal impediment to a jury trial of that preliminary question, and defendants offer none. [163 Cal App 3d at 206, 209 Cal al Rptr at 254.]

Disregard the Facts—Assume Viability of Underlying Tort Cases

In contrast to the approach taken by the courts in North American Ins. Co. v Kemper National Ins. Co. and State Farm Fire & Cas. Co. v Cooperative of American Physicians, Inc., where the courts remanded the case for factual determinations as to cause of loss so as to permit a determination of which insurer was primarily liable for the loss, many courts finding an identity of risks despite some differences in the coverage or persons insured have been loathe to engage in fact finding with respect to issues in the underlying case resolved by the settlement, reasoning instead that they were entitled to assume that the plaintiff could have prevailed under either theory alleged in the complaint (where one theory was covered by one insurer and the other theory by the other insurer). For example, in Home Ins. Co. v Certain Underwriters at Lloyd's London, 729 F2d 1132 (7th Cir 1984) (Illinois law), an action by a general liability insurer for equitable contribution against a professional liability insurer, the common insured (UOP) was an engineering firm that was sued by a worker (Pendergraft) injured in an explosion involving an oil company plant industrial system designed by UOP.

The underlying complaint alleged that UOP negligently designed the industrial system and also that UOP negligently assembled, controlled, manufactured, constructed, repaired, tested, and maintained the system. Home issued a general liability policy to UOP, which covered the allegations that UOP negligently assembled, controlled, manufactured, constructed, repaired, tested, and maintained the system, and the British Insurers issued a professional liability policy that covered the allegation that UOP negligently designed the system. The British insurers took the position that their policy, covering only the design theory, did not apply to the loss, since the plaintiff would not have prevailed on that theory. After Home settled the case without any finding of fact as to which theory gave rise to UOP's liability, Home sued the British insurers for equitable contribution. The British insurers argued that as the plaintiff, Home had the burden of proving which theory led to the liability and the settlement, and that, without any finding of fact from the court in the underlying case, Home could not meet its burden. The court rejected this contention, stating as follows:

It is plain that the British Insurers are asking the impossible. Home paid $290,000 to settle the case; there is no way to divide this figure into constituents representing Pendergraft's "design" theory, "manufacturing" theory, "construction" theory, and the like. Indeed, the case is in the same posture as if a general verdict had been returned in favor of Pendergraft. Thus there are only two possibilities: either Home must bear the entire $290,000 or Home and the British Insurers will be treated as coinsurers of the same risk and the $290,000 will be apportioned according to the policies' other-insurance provisions. Guided by principles of equity and the particular facts of this case, we select the latter option.

First, there was but one explosion and Pendergraft suffered one set of damages. Although the British Insurers indemnified UOP only against claims of design negligence, if such negligence was the cause of the explosion, then the British Insurers' policies would fully apply. Because we are entitled to assume that Pendergraft could have prevailed on his design negligence claim, it follows that Home and the British Insurers had the same maximum exposure from the Pendergraft suit. [729 F2d at 1134. Emphasis supplied; citations omitted.]

Likewise, in Indiana Ins. Cos. v Granite State Ins. Co., supra, 689 F Supp. 1549 (SD Ind 1988), the court assumed that the plaintiff could have prevailed on any theory:

After settlement, the court is permitted to assume that the plaintiff could have been successful on any claim still pending at the time of the settlement; therefore each insurer's exposure is identical, in that the settlement cannot be apportioned among the theories. [689 F Supp at 1552-53.]

Similarly, in John Alden Life Ins. Co. v North Carolina Ins. Guar. Assoc., supra, 589 SE2d 908 (NC App 2004), where a group health insurer, whose policy excluded work-related injuries, paid medical bills for an employee who suffered a heart attack at work and then sued the workers compensation insurer for equitable subrogation, rather than remanding the case for a factual determination as to which bills were work-related and which were not (as the Illinois Appellate Court did in North American Ins. Co. v Kemper National Ins. Co., supra), the court simply noted that the North Carolina Industrial Commission had determined that the heart attack was work-related, and this determination conferred a right of equitable subrogation on the group health insurer.

The approach taken by these latter courts is better, because it avoids a multiplicity of litigation. Most cases settle, as the court observed in Western Cas. Co. v Western World Ins. Co., 769 F2d 381, 384 (7th Cir 1985), thus making it impossible to determine which theory of recovery would have prevailed, or which insured was at fault, so it is usually better to assume that all theories alleged in the underlying complaint were viable and that all defendants were at fault, and to divide liability equitably on that basis, rather than to burden the coverage courts with mini-trials of issues in the underlying tort cases. This is not to say that a court in a subsequent coverage action should never involve itself in fact finding with respect to the underlying case, but only that reasonable presumptions and assumptions such as those employed by these latter courts should be liberally employed in order to preserve judicial resources, and to avoid imposing undue burdens on responsible insurers seeking rightful reimbursement from other insurers..


Follow these links for Part 1 and Part 3 of this series.


1On May 26, 2004, the Illinois Supreme Court accepted for review an important additional insured case, Home Ins. v Cincinnati Ins., 801 NE2d 997 (Ill App 2003), leave to appeal allowed. The case has been briefed, and was argued on September 29th, and a decision is expected late this year. Liberty Mutual Insurance Group filed an amicus curiae brief in that case, from which this series of three articles was adapted. This article also serves as an update of Where There Is a Right, There Is a Remedy—Except in Illinois (February 2001)

2Home Ins. Co. v Certain Underwriters at Lloyd's London, supra, 729 F2d 1132 (7th Cir 1984) (Illinois law).

3See, e.g., Continental Cas. Co. v Security Ins. Co. of Hartford, 279 Ill App 3d 815, 820, 665 NE2d 374, 377 (1st Dist 1996) (rejecting defendant insurer's contention that equitable contribution was unavailable because policies covered different insureds (one covered a joint venture and the other covered the joint venturers), and different risks since they had different policy periods, different limits, different deductibles, and different scope of coverage; both policies covered the loss, and "[t]he policy differences, therefore, set forth above on the facts of the case at bar, are unimportant."); Home Ins. Co. v Certain Underwriters at Lloyd's London, supra, 729 F2d 1132 (7th Cir 1984) (Illinois law) (equitable contribution allowed where both general liability and professional liability policies covered the loss at issue).


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