barns construction company which was the general contractor on a project at u c davis and the court noted that based on the pop insurance policies alon cole primary insurers the principle of aquittal contributions that apply and the insurance companies would split the cost of the loss however the district court decided that it was appropriate in the case district court in looking at that agreement decided that it provided that richard hancock owed an indemnity obligation to endow barns for injuries arising out of the thirty eight sixty four if an action prosecuted by an employee against a third person results in a settlement by that third person then the employes employer shall have no liability to reimburse or hold such third person harmless in the absence of a written agreement to do so executed prior to the injury now in our case  there wasn't even a signature line for the party who was making the most of the equipment and the court said well that's even worse because it wasn't even contemplated it would ever be executed and that just does not policies themselves interpreted by themselves show that the insurance companies were coke primary and sure there was no need to go beyond that to indemnity obligations provisions to which it was not a party and that was a similar situation where in that case reliance was attempting to go beyond the insurance documents and got to an indemnity agreement and the court said no you know this is  responsible at the same call it only be responsible for anything over a million dollars and if that was the night by reliance and wouldn't that go to whether st paul felt they needed to become  i believe that the record reflects all of the correspondence that occurred and it's part of the stipulation between the parties what happened was reliance agreed to  didn't notify st paul that it should come to the film at conference and that it should contribute as a primary koan sure based on the doctrine of maryland casualty that is in the record two companies were coprime or insure record so i do not agree you do not agree i do not agree ok we provided a twenty eight j letter to the court which cited the new case st paul mercury in that case they said the court should look to the conduct of the underlying parties to determine whether or not the absent party was negligent in the underlying case and if they did that here they would find that there was some fault on behalf hancock and that would have the effect of making reliance primary pursuant to paragraph to be their additional insured and or service so that would mean that they're to have to go back and be a  trial on the conduct of the underlying conduct they'd have to conduct an investigation yes and that's what the st paul mercury case stands for if we don't we end up with a weird situation where when the next time it's needed we say you can't take it because we want to litigate the cross complaint to establish the negligence of your insurer so that we can get equitable subrogation if we can't get equitable contribution so in this case if you replay it back to when the tender is made we say do you accept everything well we want to continue with we want to find across complaint against hancock and we want to establish hancock's negligence because if we do then we can get equitable subrogation on the one hand or in this case to establish that clause b of the reliance policy which i think everybody would concede makes them primary if they're insured is found to have any negligence secondly weren't equity here i heard reliance talking a lot about the law and trying to get the very fine points and argue against integration which is what the trial court found with regards to the scaffolding agreement but were in equity and if you read the cases and admittedly they're confusing and there are a lot of them the courts are continually saying in this equitable contribution arena you need to go to the underlying case you need to see what the parties underlying agreement was involved insurance companies they're not anxious to start injecting those issues in through the dispute between me and turns companies that puts the insurer in the position of having to go off and l the conduct of its own insured so that it's not quite quite as clear as you just put it well we respect lee disagree with the maryland we wouldn't be here for work for reliance versus maryland that came down just about the time that reliance decided in this case the jew is we don't want to accept the responsibility that we've accepted i think it's wrong because if they don't do that they are going to force us at the trial court level to litigate the indemnity issue every time and that is clearly counter to public policy that's what  in the case that we cited to the court twenty eight j letter the st paul mercury case and if you look at the maryland case it does talk about looking at the underlying contracts to determine that i'm sorry nationwide to determine what the parties intended because if you don't you can end up the some very serious anomaly a small subcontractor in the triple cd case having to defend the developer for the entire development and the courts saying now look at what the parties really intended here you're suggesting we should ignore maryland maryland i think the court should review all of the cases including the st paul case and others i don't think we need to go that far the trial court here got it right as far as looking at integrating the scaffolding agreement with the contract you need go no further well i'm not sure cases and i just and secondly we're going to equity here you know one of the issues i find amusing and i waited my entire career to be able to argue unclean hands and if we actually get there and start talking about the waiver and the s and i had enough trouble with equitable subrogation an equitable contribution and trying to rationalize the cases we have out here without going into those but if we get there we've got all kinds of arguments about unclean hands and what we're in equity here what the court should be doing is trying to look at all of the circumstances and under that determine where the law should be placed the trial court did that the trial court looked at all of the circumstances and determined that the intent of the parties in the underlying agreement was to place the risk of loss for the utilization of that scaffolding on the party utilizing it again it makes sense in the business context when the court asked whether there was anything time out of the time out of me that i may be oversimplifying this a contest between two primary insurers who absent the scaffolding agreement would be on the hook fifty fifty would you disagree with the scaffolding agreement yes i would again based on leak clause me but you say closer than you're saying they actually the insurance companies actually when they be negligent then we will be primary and noncontributory this is done every single day it's part of underwriting with the idea that you're going to ship the loss into one particular place it's contemplated in the policy and  asked whether or not it could be assumed i would again direct them to the reliance policy paragraph of the additional insured indorsement that specifically addresses the situation and that's why i say we need to go if we need to go back to the lower court then we need to determine whether or not hancock wasn't back negligent whether or not he could have been found liable in the case because of california labor code and the exclusivities worker that i would not be able to use that to prosecute an action against hancock in the underlying case i don't think it changes the fact that hancock would still have some negligence handsome mechanical does stand for the proposition that both parties m st paul and i think that we tried to do that we directed the court for the record i believe it's the record starting at about two to sixty which may not be per se evidence in the underlying case but again we're in equity where they reliance evaluator of the claim says that he expects both the employee and the employer to be found negligent that's in the record i think to sixty and it's just the notes of  the employee but we were and whose negligence would you be proving we would be establishing that at least the employer had some percentage of responsibility to trigger clause b of the additional insured indorsement i think under the facts are being house and the employer being alliance primary insured and the hancock being hancock and the employer of the right of who was injured and i think it's pretty easy to contemplate that that negligence would in fact be established that they've made some modifications to the scaffolding as indicated in the record in the stipulated facts they were working on the scaffolding and the man finds himself off of the scaffolding and down on the ground  and if again on the record i think the that's in there there's strong indication that there was a significant issue of contributory negligence which would have been if the employees could be imputed to the employer for the purposes of  of the additional certain or i think that the court got it right in finding integration i think the court in applying equity and record recognizing where in equity here i mean we keep wanting to a reliance wants to get very hypertechnical about the scaffolding agreeing that someone but what we're trying to do is a just the last week when two parties that don't have a really relationship going in and what's contemplated i think if one looks back the way the reliance policy is written per sub contractor it's contemplated that they may well be the primary carrier in a situation like this if the case if the courts find that there is not integration and  believes that the trial court got it wrong then i think the case needs to be remanded under the st paul mercury case that we can look at the issue of the underlying negligence and we can then address the issues of one thing enhanced waiver and stop all that really weren't  over the defense obviously didn't prosecutor cross complain against their own insurer which would have established negligence and their obligation to pay all of this grab the defense told st paul your access were primary and they ran with it where they specifically said something to the extent you may wish to keep your file open as this case may have a value of more than a million dollars that is in the record someplace and i'll see if i can find the court all right thank you possibly over a million dollars that you know that barnes would want to possibly you know review its other options with respect to other coverage now the that was normal in the eventuality that there was a result that went over a million dollars that the insured needed to know that reliance wasn't providing coverage there so again this was an issue between and in fact below and in our brief here we pointed out that the party who is attempting to show negligence has the burden of proof on that issue that's california evidence code section five twenty one that was started a law in the district court was cited here because there's no basis on which this coverage would be in the reliance policy could be activated it doesn't apply that's what additional insured provision and it and coverage does not have the language that coverage b has coverage b says if we're defending because of our named insurance negligence then we will thank you i did find a reference in the record one seventy three a letter from reliance to i'm going to leave it there because it's a tough name and would be hard to spell out but it's a letter dated and could be exposed you may wish to employ separate counsel at st paul's expense to resume your involvement in the litigation and participate in any mediations or settlement conferences so that you can protect your name to ensure its interest against interest there are a number of evaluations that claim one found it on the record sixty liability versus virus probable likely more than thirty percent comparative either or employer that meaning