Filed 12/6/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

ADVENT, INC.,

Plaintiff,

v.

NATIONAL UNION FIRE INSURANCE 

COMPANY OF PITTSBURGH, PA,

Defendant and Respondent;

TOPA INSURANCE COMPANY,

Intervener and Appellant.

 H041934

 (Santa Clara County

 Super. Ct. No. 1-13-CV238904)

Advent, Inc. (Advent) was hired as the general contractor for the Aspen Family 

Village project in Milpitas, California. Advent subcontracted with Pacific Structures, 

Inc. (Pacific). In turn, Pacific subcontracted with Johnson Western Gunite (Johnson). 

Advent was covered by an insurance policy issued by Landmark American Insurance 

Company (Landmark) and an excess insurance policy issued by appellant Topa Insurance 

Company (Topa). Johnson was covered by primary and excess insurance policies issued 

by respondent National Union Fire Insurance Company of Pittsburgh, PA (National 

Union). 

While construction on the project was underway, a Johnson employee, Jerry 

Kielty, fell down an unguarded stairway shaft at the project site and sustained serious 

injuries. Kielty sued Advent, and Advent tendered its defense to its various insurance 

companies and to National Union. National Union initially refused the tender but later 

accepted it under a reservation of its rights. Kielty settled his action for a sum of 
2

$10 million. Various insurers, including Topa and National Union (under its primary 

policy), contributed to the settlement. National Union continued to reserve its rights

during the settlement process, and it did not provide coverage under its excess policy. 

Advent initiated this underlying action when it sued National Union, seeking a 

declaration that it was an “additional insured” under National Union’s excess policy. 

Topa successfully intervened in the action, seeking declaratory relief, equitable 

contribution from National Union, and equitable subrogation. Advent moved for 

summary judgment, which was denied. Advent then dismissed its complaint against 

National Union with prejudice. Subsequently, Topa and National Union filed 

cross-motions for summary judgment. The trial court denied Topa’s motion and granted 

National Union’s motion. Judgment was entered in favor of National Union, and Topa 

appealed. As we explain below, we find that the trial court did not err when it granted 

National Union’s motion for summary judgment. We affirm.

BACKGROUND

A. The Contractor and Subcontractors

Advent was hired by Global Premier Development, Inc. and Aspen Construction 

Management, Inc., to be the general contractor for the Aspen Family Village project in 

Milpitas, California. Advent subcontracted with Pacific. In turn, Pacific subcontracted 

with Johnson to furnish and install shotcrete for the perimeter walls of the project. 

B. The Subcontracts

i. The Advent/Pacific Subcontract

Advent subcontracted with Pacific on January 14, 2008 (Advent/Pacific

subcontract). The subcontract set forth certain definitions. “Contractor” referred to 

Advent. “Subcontractor” referred to Pacific. “Sub-subcontractor” was defined as any 

subcontractor, architect, engineer, surveyor, laborer, or material man hired or employed 

by the subcontractor (Pacific). The term “Subcontract” or “Contract” referred to “this 
3

Subcontract [meaning the Advent/Pacific subcontract], including all Plans, 

Specifications, General Conditions, Supplemental General Conditions, Special 

Conditions, Amendments and all other documents issued by the Contractor and/or 

prepared by the Architect for the Project.” Pacific was to be paid $6,275,000 for its work 

under the subcontract. 

The Advent/Pacific subcontract contained a provision regarding insurance. The 

provision stated, “Minimum insurance requirements are: General Liability of 

$1,000,000 . . . Workers Compensation. General Liability . . . must have endorsements 

showing the Owner, Contractor [Advent] and Lender as Additional Insured, primary as to 

any and all claims, and any insurance maintained by Contractor shall be excess and 

noncontributory.” 

ii. The Pacific/Johnson Subcontract

Pacific entered into a subcontract with Johnson on February 7, 2008 

(Pacific/Johnson subcontract). The Pacific/Johnson subcontract referred to Johnson as 

the “subcontractor.” It also provided that Johnson would be working on structural 

shotcrete for the Aspen Family Village project and would be paid $289,000. Further, it

referenced the Advent/Pacific subcontract as the “original Contract” or just the 

“Contract.”

Exhibit D of the Pacific/Johnson referenced insurance. In a paragraph, it stated: 

“A. Insurance Requirements: All subcontractors must provide Insurance Certificates as 

designated in the Subcontract, naming parties listed on the attached sheet as additional 

insured. Original signatures are required on all insurance certificates. Insurance 

certificates must be submitted to Advent prior to commencement of work under this 

Subcontract.” The attached sheet required Johnson to submit certificates of liability 

insurance to Advent and required that Advent be listed as an additional insured. 
4

Despite the language of exhibit D and its attached sheet, the subcontract between Pacific 

and Johnson did not actually designate anything about insurance.

C. The Various Insurance Policies

i. The Landmark Policy

Advent was insured by Landmark under a $1 million general commercial liability 

policy, which was in effect at the time of the accident. 

ii. The Topa Policy

Advent was also insured by Topa under a $5 million excess commercial general 

liability policy, which was in effect at the time of the accident. 

The Topa excess policy provides that its excess liability indemnity extends to 

“indemnify the insured for the amount of loss which is in excess of the applicable limits 

of liability, whether collectible or not, of the Underlying Insurance inserted in Item 6 of 

the Declarations . . . .” Item 6 of the declarations lists, as the general liability policy, the 

Landmark policy. “Loss” is defined as “the sum paid in settlement of losses for which 

the insured is liable after making deduction for all recoveries, salvages or other insurance 

(other than recoveries under the policy of the Underlying Insurance) whether recoverable 

or not, and shall include all expenses and ‘costs.’ ” 

iii. The National Union Policies

Johnson was insured by National Union under a $1 million primary general 

liability policy, which was in effect at the time of the accident. The policy was amended 

to include, as additional insureds, those “where required by written contract.” 

Johnson was also insured by National Union under a $15 million excess liability 

policy that was in effect at the time of the accident. The excess liability policy stated that 

“insured” meant “any person or organization, other than [Johnson], included as an 

additional insured under [the National Union primary policy], but not for broader 

coverage than would be afforded by [the primary policy].” 
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The National Union excess policy expressly states that National Union “will not 

make any payment under [the excess] policy unless and until: [¶] 1. the total applicable 

limits of Scheduled Underlying Insurance have been exhausted by the payment of Loss to 

which this policy applies and any applicable, Other Insurance have been exhausted by the 

payment of Loss . . . .” “Other Insurance” is defined as “a valid and collectible policy of 

insurance providing coverage for damages covered in whole or in part by this policy.”

D. The Accident

The undisputed facts of the accident giving rise to this insurance coverage action 

are as follows: At around 11:40 a.m. on August 22, 2008, Jerry Kielty, who was 

employed by Johnson, was working as a cement pump operator. At around noon, the 

Johnson foreman directed Kielty to retrieve a piece of plywood that had been left outside 

between buildings 60 and 70. The path to retrieve the plywood was completely outside.

Later, a driver of a cement truck reported that he had seen Kielty enter building 70. The 

driver did not see Kielty leave the building. Between noon and 1:00 p.m., the Johnson 

supervisor sent the foreman to find Kielty. The foreman searched the areas between 

buildings 60 and 70. He did not find Kielty. At approximately 1:15 p.m., two Helix 

Electric employees said that they heard something fall in the garage area. At around 

1:35 p.m., while searching for a ladder inside building 70, a Pacific employee found that 

Kielty had fallen in the stairwell area of the building. At the time, Johnson was not 

performing any work in the interior of the building. Kielty suffered severe injuries as the 

result of the fall and could not remember how he fell. 

E. The Kielty Action

On March 27, 2009, Kielty filed an action in Santa Clara County Superior Court

(Kielty et al. v. Advent, Inc. et al., Sup. Ct. No. 1-08-CV122946) (Kielty Action) seeking 

damages for the injuries he had sustained in the accident. Kielty named, among others,

Advent as a defendant. Kielty alleged that he fell down the unguarded stairwell as a 
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result of the negligence of the named defendants, including Advent. Kielty did not name 

Johnson as a defendant.1 

Advent tendered its defense to its insurers and included National Union. Advent 

contended that it was an additional insured under the policies issued by National Union to 

Johnson. National Union initially refused the tender but later agreed to share the cost of 

defending Advent under a reservation of its rights. 

Advent’s answer alleged that Kielty was negligent and that other parties or third 

parties not a part of the action were responsible for the damages incurred by Kielty. 

F. Advent’s Cross-complaint

Advent and Global cross-complained against Johnson for express indemnity under 

the contract between Pacific and Johnson, breach of contract, equitable indemnity, 

contribution, declaratory relief, and negligence. In part, Advent alleged that Kielty’s 

injuries were sustained as a result of Johnson’s negligence, carelessness, tortious acts, or 

other acts or omissions by Johnson and its employees, which included Kielty. 

Advent and Johnson moved for summary judgment on the cross-complaint. The 

trial court denied Advent’s motion for summary judgment, finding that Johnson did not 

have a duty to indemnify Advent. The Advent subcontract had an indemnity provision. 

However, the trial court concluded that the Pacific/Johnson subcontract had no 

indemnification language and could not be reasonably interpreted as incorporating the 

indemnity provisions in the Advent/Pacific subcontract. Additionally, the trial court 

noted that Kielty did not allege that Johnson was liable for his injuries. Kielty’s 

complaint did not allege that Johnson was responsible for the stairwell shaft where he fell

or that anyone employed by Johnson had directed him to enter the building. 

 

1 At some point, Kielty made a successful worker’s compensation claim with 

Johnson. 
7

Furthermore, with respect to Advent’s cause of action for breach of contract, the 

court found that Johnson had met its initial burden by supplying an insurance certificate 

showing that Johnson had complied with the requirement to provide insurance to Advent. 

The trial court granted Johnson’s motion for summary judgment, and Advent 

dismissed Johnson from the Kielty Action with prejudice. 

G. Kielty’s Settlement

Kielty entered into a partial settlement in the Kielty Action for $10 million. Under 

the settlement, Landmark paid $1 million, Topa paid $5 million, National Union paid 

$1 million, and the remainder was paid by other insurers. During the settlement process, 

National Union continued to reserve its rights under both its primary and excess policies. 

The settlement agreement stated that its payment was made “on behalf of its insured 

[Johnson] and alleged insureds Advent, Global and [Pacific].” 

As part of the settlement, Kielty agreed to stay the action pending a determination 

of whether Advent was an additional insured under National Union’s policies. If it was 

determined that Advent was not an additional insured under National Union policies, 

Kielty agreed to dismiss all claims against Advent with prejudice. If, however, it was 

determined that Advent was an additional insured under National Union’s policies, the 

stay would be lifted and trial would proceed against Advent only. 

H. The Present Action

After the partial settlement, Advent initiated this present action by suing National 

Union for declaratory relief. Advent sought a declaration that it was an additional 

insured under National Union’s $15 million excess policy. 

Advent moved for summary judgment, which was denied. The trial court cited to 

some procedural defects with Advent’s motion, but also noted that it was “not persuaded 

that Advent’s interpretation of the relevant documents establishes that it is entitled to the 

declaration it is seeking.” Afterwards, Advent dismissed its complaint against National 
8

Union with prejudice. Kielty thereafter dismissed his action against Advent, making the 

partial settlement the full and final settlement of the Kielty Action. 

Before the denial of Advent’s motion for summary judgment and the dismissal of 

Advent’s complaint, Topa intervened in the action, seeking equitable contribution for its 

$5 million contribution to the settlement. Topa asserted claims against National Union 

for equitable contribution, equitable subrogation, and declaratory relief. 

Thereafter, Topa and National Union filed cross-motions for summary judgment. 

Topa alleged that Advent is an additional insured under both of Johnson’s

National Union policies under the insurance requirements in the subcontract between 

Pacific and Johnson. In support of this proposition, Topa pointed to the language of the 

National Union policies, the Advent/Pacific subcontract, and the Pacific/Johnson

subcontract. Topa argued that based on the wording of the Pacific/Johnson subcontract, 

Johnson was required to add Advent as an additional insured under its primary policy

with National Union. As a result, National Union’s excess policy provided coverage to 

Advent. Topa also alleged that there was coverage under National Union’s policies, 

because the undisputed facts demonstrated a potential that Johnson (or Kielty himself)

contributed to Kielty’s injuries.

In its opposition to Topa’s motion for summary judgment, National Union argued 

that Johnson never agreed to provide Advent with additional insurance coverage based on 

the language of the Pacific/Johnson subcontract, National Union’s excess policy was in 

excess of Topa’s policy and therefore did not apply, and, regardless, Topa failed to 

demonstrate that there was actual coverage rather than potential coverage, as the issue 

here was one of indemnity and not defense.

National Union, in its motion for summary judgment, echoed many of the same 

arguments that were contained in its opposition to Topa’s motion for summary judgment. 

National Union claimed that it was entitled to judgment in its favor because the 
9

subcontract between Johnson and Pacific did not require Johnson to purchase additional 

insured coverage for Advent. Further, National Union argued that even if Johnson was 

required to purchase additional insured coverage for Advent, coverage would apply only 

if Johnson’s acts or omissions caused Kielty’s injuries, which also had to be incurred 

during the performance of Johnson’s ongoing operations for Advent. National Union 

maintained that these conditions were not present. 

Finally, National Union asserted that the excess additional insured coverage could 

not be broader than the coverage available under the primary policy, and the primary 

policy here applied only “where required by written contract.” National Union insisted 

that the primary policy had a limit of $1 million. Therefore, total additional insured 

coverage (if any existed) could not exceed $1 million. And Advent had its own excess 

insurance through Topa, which properly paid Kielty’s claim.

After considering the parties’ arguments, the trial court granted National Union’s 

motion and denied Topa’s motion. As to Topa’s first cause of action seeking a 

declaration that Advent was an additional insured under National Union’s excess policy, 

the trial court concluded that the language of the policies did not support Topa’s 

interpretation that Advent was an additional insured. Namely, the subcontract between 

Pacific and Johnson could not be reasonably interpreted as incorporating by reference the 

insurance requirements in the Advent/Pacific subcontract. Further, the Pacific/Johnson 

subcontract did not include an express insurance requirement of any kind. The only 

reference in the Pacific/Johnson subcontract to insurance was the generic reference in 

exhibit D that required subcontractors to provide insurance certificates as designated in 

the subcontract. The trial court concluded that “[p]oor drafting of contract language by 

Advent and/or [Pacific] cannot be construed against [Johnson].” Therefore, the trial court 

determined that Topa failed to show that there was a written contract that required 
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Johnson to name Advent as an additional insured on any specific policy type. The trial 

court also concluded that Kielty never alleged that Johnson was at fault for his accident. 

As to Topa’s claims of equitable contribution and equitable subrogation, the trial 

court determined that the same evidence supporting its conclusion that Topa’s 

sought-after declaration that Advent was an additional insured under the National Union 

excess policy also supported the conclusion that the equitable claims failed. 

Judgment was entered in favor of National Union. Topa appealed. 

DISCUSSION

Topa argues that the trial court erred when it granted summary judgment in favor 

of National Union. We conclude the court did not err.

1. Overview of Summary Judgment Motions and Standard of Review

“[W]here the plaintiff has . . . moved for summary judgment . . . [it] has the 

burden of showing there is no defense to a cause of action. (Code Civ. Proc., § 437c, 

subd. (a).) That burden can be met if the plaintiff ‘has proved each element of the cause 

of action entitling [it] to judgment on that cause of action.’ (Code Civ. Proc., § 437c, 

subd. (p)(1).) If the plaintiff meets this burden, it is up to the defendant ‘to show that a 

triable issue of one or more material facts exists as to that cause of action or a defense 

thereto.’ (Code Civ. Proc., § 437c, subd. (p)(1).)” (S.B.C.C., Inc. v. St. Paul Fire & 

Marine Ins. Co. (2010) 186 Cal.App.4th 383, 388.) 

“A defendant or cross-defendant has met his or her burden of showing that a cause 

of action has no merit if that party has shown that one or more elements of the cause of 

action, even if not separately pleaded, cannot be established, or that there is a complete 

defense to that cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) Once the 

defendant or cross-defendant has met this initial burden, the burden shifts to the plaintiff 

to produce admissible evidence showing that a triable issue exists. (Ibid.) 
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“The fact that both parties moved for summary judgment does not conclusively 

establish the absence of a triable issue of fact; the trial court must independently 

determine the motions.” (Tahoe Regional Planning Agency v. King (1991) 233 

Cal.App.3d 1365, 1375, fn. 2.) We may affirm on any legally correct ground, “regardless 

of the grounds relied upon by the trial court.” (Becerra v. County of Santa Cruz (1998) 

68 Cal.App.4th 1450, 1457.)

2. Overview of Topa’s Claims

Topa’s complaint-in-intervention alleged three causes of action: (1) a cause of 

action for declaratory relief seeking a declaration that Advent was an additional insured 

under National Union’s excess policy, Advent was entitled to coverage under the excess 

policy, and Topa is entitled to reimbursement for a portion of the settlement that Topa 

paid; (2) a cause of action for equitable contribution, and (3) a cause of action for 

equitable subrogation.2

“Equitable contribution apportions costs among insurers sharing the same level of 

liability on the same risk as to the same insured, and is available 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 participation by the 

others.” . . . “The purpose of this rule of equity is to accomplish substantial justice by 

equalizing the common burden shared by coinsurers, and to prevent one insurer from 

profiting at the expense of others.” ’ ” (Safeco Ins. Co. of America v. Superior Court

(2006) 140 Cal.App.4th 874, 879 (Safeco).) 

 

2

Topa made no argument in the trial court and no argument on appeal regarding 

its cause of action for equitable subrogation. We therefore deem this issue waived. 

(Rutledge v. Hewlet-Packard Co. (2015) 238 Cal.App.4th 1164, 1171, fn. 3.)
12

3. Coverage for Injuries “Caused By” Johnson or Those Acting on Johnson’s Behalf

First, Topa argues that the trial court erred in rejecting its argument that exhibit D 

in the Pacific/Johnson subcontract’s statement that Johnson was to provide insurance 

certificates as designated in the “Subcontract” referred to the Advent/Pacific subcontract. 

National Union, however, maintains that even if we were to find that the trial court erred 

in concluding that the Pacific/Johnson subcontract is not reasonably susceptible to Topa’s 

interpretation, summary judgment was still properly granted in its favor because Topa 

failed to show that Kielty’s injuries were caused by Johnson. Absent causation by 

Johnson, National Union’s excess policy would not afford Advent with coverage. As we 

explain below, we agree with National Union’s argument on this point and find that this 

issue is dispositive. 

a. Burdens of Proof in Equitable Contribution Claims

Before we address the merits of National Union and Topa’s appellate arguments 

regarding coverage, we first review the applicable burdens of proof that must be met by 

parties moving for summary judgment in an equitable contribution action. On appeal, the 

parties dispute a critical issue: whether Topa bore the burden to prove that Kielty’s 

accident was actually covered by National Union’s policies, or whether National Union 

bore the burden to prove that Kielty’s accident was not actually covered. 

“An insurer’s duty to indemnify ‘runs to claims that are actually covered, in lights 

of the facts proved. . . . By definition, it entails the payment of money in order to resolve 

liability. . . . It arises only after liability is established.’ ” (Safeco, supra, 140 

Cal.App.4th at p. 880.) “By settling, however, the parties forgo their right to have 

liability ‘established’ by a trier of fact, and the settlement ‘becomes presumptive 

evidence of the [insured’s] liability and the amount thereof, which presumption is subject 

to being overcome by proof. . . . “A contrary rule would make the right to settle 

meaningless.” ’ ” (Ibid.)
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Topa argues that under Safeco, supra, 140 Cal.App.4th 874, it only needed to 

demonstrate a potential for coverage under National Union’s excess policy. Thereafter, 

the burden shifted to National Union to show, as an affirmative defense, that coverage did 

not exist.

In Safeco, the plaintiff (the settling coinsurer) sued the nonparticipating coinsurer 

for equitable contribution and declaratory relief, alleging that the nonparticipating 

coinsurer had breached its duty to defend and was thus obligated to reimburse the settling 

coinsurer for its share of the defense and settlements. (Safeco, supra, 140 Cal.App.4th at 

p. 877.) The settling coinsurer moved for summary judgment, or summary adjudication, 

on its claims. The nonparticipating coinsurer responded by arguing that the settling 

coinsurer had to prove both that the nonparticipating coinsurer had a duty to defend based 

on a potential for coverage and that there was, in fact, actual coverage under the 

nonparticipating coinsurer’s policies. (Id. at p. 878.) The trial court denied the settling 

coinsurer’s motion for summary judgment, siding with the nonparticipating coinsurer that 

the settling coinsurer had to prove that it was entitled to contribution as a matter of law. 

(Ibid.) The settling coinsurer filed a petition for writ of mandate challenging the trial 

court’s ruling.

The appellate court agreed with the settling coinsurer and rejected the 

nonparticipating coinsurer’s argument that the settling insurer bore the burden of proving 

that the coinsurer had a duty to indemnify their mutual insureds. (Safeco, supra, 140 

Cal.App.4th at p. 880.) The Safeco court reasoned that a nonparticipating coinsurer 

waives its right to challenge the reasonableness of a settlement amount with the insured. 

(Id. at p. 881.) The nonparticipating coinsurer, however, does not waive its right “to raise 

other coverage defenses as affirmative defenses in a contribution action—which means, 

of course, that the recalcitrant coinsurer has the burden of proof on those issues.” (Ibid.) 

Therefore, the Safeco court held that “in the circumstances of [their] case—where [the 
14

nonparticipating coinsurer’s] duty to defend is undisputed, and where by law the 

settlements are presumptively reasonable—the burden of proof is on [the nonparticipating 

coinsurer] to establish that there was no coverage (and not on the [settling coinsurer] to 

prove the opposite).” (Ibid.) Therefore, the appellate court granted the settling 

coinsurer’s petition for a writ of mandate to the extent that it sought a determination that 

the settling coinsurer had met its burden by showing a potential for coverage, and the 

burden then shifted to the nonparticipating coinsurer to prove the absence of actual 

coverage.

National Union rejects the application of the burden-shifting principles enunciated 

in Safeco, arguing that Safeco is factually distinguishable because it involved primary 

insurers not excess insurers, and because the public policy that supported the shifting of 

burdens in Safeco is not present in this current situation. Unlike the nonparticipating 

coinsurer in Safeco, National Union provided a defense under its primary policy and paid 

$1 million under its primary policy toward the settlement of the Kielty Action. National 

Union maintains that because Topa seeks contribution from National Union’s excess

policy, adhering to the principle that Topa must prove existence of actual coverage would 

not “encourage insurance companies to disavow their contractual responsibilities to their 

insureds [citation] and, by extension, their responsibilities to coinsurers.” (Safeco, supra, 

140 Cal.App.4th at p. 881.) 

We agree with National Union that Safeco is factually distinguishable. As 

National Union points out, National Union tendered a defense under its primary policy. 

It is therefore not like the nonparticipating coinsurer in Safeco who refused to tender its 

insured a defense and thereafter refused to contribute to the settlement. Rather, the 

dispute here concerns whether National Union’s excess policy provides coverage to 

Advent for Kielty’s injuries. Additionally, unlike Safeco, National Union’s duty to 

defend was disputed below. Although National Union accepted tender of Advent’s 
15

defense, it did so under a reservation of rights and never conceded that it was obligated to 

defend Advent in the Kielty action.

Despite these factual distinctions, we find the rationale behind the burden-shifting 

in Safeco to be applicable here. First, we note that the discussion of “burdens” is 

complicated by the fact that both Topa and National Union filed motions for summary 

judgment, or in the alternative, summary adjudication, below. These cross-motions for 

summary judgment are crucial to understand each party’s burden of proof. That is 

because the burdens allocated to parties are, in part, dictated by whether a party is 

bringing the motion for summary judgment or opposing the motion for summary 

judgment. 

Take Safeco as an example. In Safeco, the moving party was the settling 

coinsurer. Under the general principles governing summary judgment motions, the 

settling coinsurer (as the moving party) bore the burden to make a prima facie showing in 

its motion that there was no triable issue of material fact, it was entitled to judgment as a 

matter of law, and there was no defense to the cause of action. (Code Civ. Proc., § 437c, 

subds. (c) & (p)(1).) As articulated above, Safeco held that the settling coinsurer met its 

initial burden on its summary judgment motion by making a prima facie showing that 

there was coverage under the nonparticipating coinsurer’s policy (which was satisfied by 

showing that there was a potential for coverage). In other words, the settling coinsurer 

did not have to go out of its way to negate an affirmative defense such as lack of 

coverage.

Like the settling insurer in Safeco, Topa bore the burden on its motion for 

summary judgment to make a prima facie showing that there was no triable issue of 

material fact—that actual coverage existed under National Union’s excess policy. “A 

prima facie showing is one that is sufficient to support the position of the party in 

question.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851.) Certainly, in 
16

cases where the plaintiff has not settled the case, liability would often be conclusively 

established by the ensuing trial’s outcome. A trier of fact would determine which insured

(or insureds), if any, are liable for the plaintiff’s injuries. Here, however, Kielty settled 

the action before it went to trial. “By settling . . . the parties forgo their right to have 

liability ‘established’ by a trier of fact, and the settlement ‘becomes presumptive 

evidence of the [insured’s] liability and the amount thereof, which presumption is subject 

to being overcome by proof.’ ” (Safeco, supra, 140 Cal.App.4th at p. 880.) In this case, 

National Union continued to reserve its rights throughout the settlement process, so the 

settlement cannot be used as presumptive evidence that National Union’s policy applies. 

What we are left with are the allegations in Kielty’s complaint and the parties’ 

undisputed facts recounting the accident. From this, we believe that Topa can satisfy its 

initial burden to make a prima facie showing of actual coverage if it can demonstrate a 

potential for coverage based on known extrinsic facts and the allegations of the 

complaint. As noted by Safeco, this is the same as the potential liability triggering a duty 

to defend. (Safeco, supra, 140 Cal.App.4th at p. 879.) 

Similarly, National Union, on its motion for summary judgment, bears the initial 

burden to show that a cause of action cannot be established or that there is a complete 

defense to Topa’s causes of actions. (Code Civ. Proc., § 437c, subd. (p)(2).) National 

Union could achieve this by presenting affirmative evidence negating an essential 

element of Topa’s claim. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) 

Alternatively, National Union could also meet its initial burden by proving each element 

of an affirmative defense to Topa’s claim of coverage, such as the affirmative defense 

that there was no actual coverage. (Safeco, supra, 140 Cal.App.4th at p. 878 

[characterizing absence of actual coverage as an affirmative defense to equitable 

contribution].) If National Union meets this burden, the burden would shift to Topa to 
17

produce admissible evidence showing that a triable issue of fact exists. (Code Civ. Proc., 

§ 437c, subd. (p)(1).) 

Applying these principles, we come to the following conclusion: Topa is correct 

that in order to satisfy its initial burden on its motion for summary judgment, it had to 

make a prima facie showing of actual coverage. (In other words, Topa must show that 

there is a potential for coverage.) The burden would then shift to National Union to 

demonstrate that there is a triable issue of material fact—that there is evidence or a 

reasonable inference showing that there is no actual coverage. On the other hand, when 

National Union moves for summary judgment, it must satisfy its initial burden by 

showing there are undisputed facts supporting each element of its affirmative defense of 

lack of coverage. Once National Union has satisfied this initial burden, Topa must prove 

that a triable issue of material fact exists—again, that there is evidence or a reasonable 

inference that there is coverage. 

b. Application to this Case

With these concepts in mind, we first evaluate whether National Union met its 

initial burden on its motion for summary judgment to demonstrate that coverage cannot 

be established. We find that based on the undisputed facts in the record, National Union 

met its initial burden. 

According to the National Union primary policy, coverage for additional insured 

extends only “with respect to liability for ‘bodily injury,’ ‘property damage’ or ‘personal 

and advertising injury’ caused, in whole or in part, by: [¶] 1. Your [Johnson’s] acts or 

omissions; or [¶] 2. The acts or omissions of those acting on your [Johnson’s] behalf; [¶] 

in the performance of your [Johnson’s] ongoing operations for the additional insured(s) at 

the location(s) designated above.” 

The National Union excess policy provides that National Union “will pay on 

behalf of the Insured those sums in excess of the Retained Limit that the Insured becomes 
18

legally obligated to pay as damages by reason of liability imposed by law because of 

Bodily Injury . . . to which this insurance applies . . . .” (Italics added.) Accordingly, the 

excess policy applies only to those claims covered by the primary policy. The issue is 

thus whether Kielty’s injuries were caused, in whole or in part, by Johnson or by 

someone acting on behalf of Johnson.

The following facts are undisputed: Kielty was working as a cement pump 

operator for Johnson when the accident occurred. Around noon, Kielty was directed by a 

Johnson foreman to retrieve a piece of plywood located outside between two buildings, 

building 60 and building 70. The path to retrieve the plywood was outside. Kielty did 

not return after being sent on this errand, and other workers searched for him twice in the 

area between buildings 60 and 70. Later, another subcontractor’s employee found Kielty 

in a stairwell area inside of building 70. Johnson was not performing work in the interior 

of building 70 at the time of the accident. 

In the underlying Kielty action, Kielty alleged that certain named defendants, 

including Advent, were negligent and caused his injuries. Johnson was not named in 

Kielty’s lawsuit.

Based on these undisputed facts, National Union maintains that it is clear that 

Kielty’s injuries were not “caused by” Johnson or someone acting on behalf of Johnson, 

which Topa argues could include the Johnson foreman or Kielty himself. Although a 

Johnson foreman directed Kielty to retrieve the plywood, the path was entirely outside. 

Furthermore, Johnson was not conducting work in the interior of building 70 at the time 

of Kielty’s fall. There is no evidence shedding light on the circumstances of Kielty’s fall 

and whether he was at fault himself. Based on the foregoing, we agree with National 

Union’s assessment that it met its initial burden by demonstrating that Johnson’s (or 

Kielty’s) acts did not cause Kielty’s injuries. 
19

Topa, however, claims that it met its burden in opposing National Union’s 

summary judgment motion by demonstrating that a triable issue of fact exists regarding 

the existence of coverage. Topa argues that based on the undisputed facts, Kielty’s 

injuries were potentially caused by Johnson (or Kielty), because “[a]t all relevant times 

[Kielty] was acting on [Johnson’s] behalf” and Kielty’s injuries may have resulted from 

his own acts or omissions while he was acting on behalf of Johnson. 

National Union argues that Topa’s evidence is merely speculation, and not 

admissible evidence. “ ‘Speculation . . . is not evidence’ that can be utilized in opposing 

a motion for summary judgment.” (Knapp v. Doherty (2004) 123 Cal.App.4th 76, 99.) 

Speculation also differs from a reasonable inference. “When opposition to a motion for 

summary judgment is based on inferences, those inferences must be reasonably deducible 

from the evidence, and not such as are derived from speculation, conjecture, imagination, 

or guesswork.” (Joseph E. Di Loreto, Inc. v. O’Neill (1991) 1 Cal.App.4th 149, 161.) 

We agree with National Union that Topa does not actually provide evidence that 

shows that Kielty’s injuries were caused by Johnson’s acts or omissions or Kielty’s own 

acts or omissions. The undisputed facts reflect that Kielty was directed by the Johnson 

foreman to retrieve plywood. However, for some reason, Kielty went inside the building, 

when the path to the plywood was outside, and fell down a stairwell. There is no 

evidence that Johnson caused Kielty to enter building 70. The foreman did not tell him to 

enter the building. Johnson was not even doing work inside building 70. In the Kielty 

Action, Kielty never alleged that Johnson was at fault for his fall.3 And Kielty himself 

could not remember how he fell.

Topa seems to claim that based on the undisputed circumstances of Kielty’s fall—

the fact that he was at the jobsite and was directed by the Johnson foreman to retrieve 

 

3

Topa posits in its opening brief that Kielty did not allege that Johnson was at 

fault, because Kielty had filed a worker’s compensation claim with Johnson. 
20

plywood when he fell—it can be reasonably inferred that Johnson was at fault. We 

disagree with Topa’s assessment, which relies purely on speculation, not reasonable 

inferences. 

Speculation about facts has been found to be insufficient when construing an 

insurer’s duty to defend—which is broader than the duty to indemnify. When construing 

whether an insurer has a duty to defend courts have routinely held that the duty is 

determined by looking at the “ ‘facts alleged or otherwise disclosed.’ . . . [¶] . . . it does 

not include made up facts, just because those facts might naturally be supposed to exist 

along with the known facts.” (Friedman Prof. Management Co., Inc. v. Norcal Mutual

Ins. Co. (2004) 120 Cal.App.4th 17, 34-35.) “An insured may not trigger the duty to 

defend by speculating about extraneous ‘facts’ regarding potential liability or ways in 

which the third party claimant might amend its complaint at some future date.” 

(Gunderson v. Fire Ins. Exchange (1995) 37 Cal.App.4th 1106, 1114.) Along these same 

lines, we do not believe that an insurer establishes there is a duty to indemnify by 

speculating about extraneous facts. Nor is such speculation sufficient to create a triable 

issue of material fact.

National Union directs us to St. Paul Fire & Marine Ins. Co. v. American Dynasty 

Surplus Lines Ins. Co. (2002) 101 Cal.App.4th 1038 (St. Paul). In St. Paul, a licensed 

contractor (ARB) entered into a contract to perform construction work at a rail 

maintenance yard. Subsequently, ARB entered into a subcontract with Sasco to perform 

electrical work. Sasco was required to add ARB as an additional insured under Sasco’s 

liability policy with American Dynasty. (Id. at p. 1043.) The subcontract with Sasco 

provided that Sasco agreed to indemnify ARB and the owner of the project for damages 

arising out of or resulting from the performance of its work, or from injury or destruction 

of property that arises or is alleged to have arisen in whole or in part by an act or 

omission of Sasco or any subcontractor under Sasco, or any servants, agents, or 
21

employees. (Id. at p. 1044.) ARB had its own general liability policy issued by St. Paul. 

(Ibid.)

One day, an employee of Sasco was injured at the worksite after ARB was 

pressure-testing a pipe connected to a fuel tank that exploded, striking the employee. 

(St. Paul, supra, 101 Cal.App.4th at p. 1045.) Sasco was not involved in pressure-testing 

for the pipe, nor did its subcontract involve pressure-testing. At the time, ARB was 

working independently of Sasco. Prior to the explosion, the employee had heard a 

hissing noise, which frightened him and caused him to run from his worksite. While 

running, he was struck by a fragment from the pipe in his leg. The employee filed a 

lawsuit against ARB and the project owner. ARB and the project owner tendered its 

defense to St. Paul, and St. Paul tendered defense to American Dynasty, contending that 

the lawsuit was covered under the additional insured endorsement issued by American 

Dynasty. (Ibid.) American Dynasty denied coverage and refused tender of the defense. 

(Ibid.) Subsequently, St. Paul provided a defense to ARB and the project owner, and 

ultimately settled the lawsuit. St. Paul and ARB then brought a cause of action against 

Sasco and American Dynasty for breach of contract and declaratory relief, seeking to 

recover the amount that had been paid to settle the employee’s lawsuit. (Id. at 

pp. 1045-1046.) The trial court agreed with St. Paul and ARB, but the appellate court did 

not. Following an appeal, the appellate court reversed the trial court’s judgment in favor 

of St. Paul and ARB. (Id. at p. 1047.)

Interpreting the language of the subcontract agreement, the St. Paul court stated 

that by expressly limiting Sasco’s obligation to indemnify from acts or omission arising 

out of or resulting from the work that Sasco was to perform, the parties intended “to limit 

the scope of Sasco’s indemnity to injuries occurring in circumstances over which it has at 

least some control and where it is engaged in activity that is causally related in some 

manner to the injury for which indemnity is claimed.” (St. Paul, supra, 101 Cal.App.4th 
22

at pp. 1052-1053.) Further, “[t]o construe the promise of indemnity made by Sasco as 

applying merely because its employee was present within the zone of danger created 

solely by the negligence of ARB would offend . . . the clearly expressed intent of the 

parties in article 4.1 of the Subcontract . . . .” (Id. at p. 1054.)

Topa attempts to argue that it is sufficient that Kielty was at the project site that 

day when he was injured. However, like in St. Paul, there is no evidence that Kielty was 

engaged in activity over which Johnson had control over at the time of his accident. As 

we stated before, the undisputed facts reflect that Kielty was told to retrieve plywood 

outside, and the path to the plywood was completely outside. Somehow, Kielty fell down 

an unguarded shaft in building 70. At the time, Johnson was not performing work inside 

building 70. It was also not alleged that the unguarded shaft where Kielty sustained his 

injuries was hazardous due to some act or omission by Johnson or its employees. The 

only theory of causation advanced by Topa is the fact that Kielty was at the project site at 

the time of the accident. And as articulated in St. Paul, mere presence at a jobsite is 

insufficient to find that an accident or injury arose from a subcontractor’s actions. 

Along those same lines, we do not believe that mere presence at a jobsite is sufficient to 

find that the accident was caused by Johnson’s acts or omissions.

Topa cites to several cases from other jurisdictions that it claims supports its 

points. First, it cites to First Mercury Ins. v. Shawmut Woodworking & Supply (D. Conn. 

2014) 48 F.Supp.3d 158 (First Mercury). In First Mercury, the plaintiff insurance 

company (First Mercury) sought a declaratory judgment that the defendants (a general 

contractor and a subcontractor) were not additional insureds under a general liability 

policy it had issued to Fast Trek, a sub-subcontractor. (Id. at p. 160.) In September 

2010, a steel web structure collapsed, killing one Fast Trek worker and injuring three 

others. (Ibid.) The employees sued. Like this present case, First Mercury’s policy 

extended coverage to the defendants but only for injuries “caused, in whole or in by part, 
23

by” Fast Trek’s acts or omissions or the acts or omissions of those acting on Fast Trek’s 

behalf in the performance of Fast Trek’s ongoing operations for defendants. (Id. at 

p. 167.) 

First Mercury argued that it had no duty to defend the defendants, because there 

was no coverage since the employees’ complaints did not name Fast Trek as a defendant. 

Therefore the lawsuit did not allege that the injuries were caused by Fast Trek. (First 

Mercury, supra, 48 F.Supp.3d at p. 168.) The federal district court disagreed, concluding 

that it could consider facts outside the four corners of the state court complaints that 

showed there was a “possibility that the injuries could have been caused at least in part by 

the acts or omissions of Fast Trek or those acting on its behalf.” (Ibid.)

First, the district court held that facts extrinsic to the complaints—including an 

OSHA report—suggested the possibility of coverage, because there was evidence that the 

accident was at least partially attributable to Fast Trek. (First Mercury, supra, 48 

F.Supp.3d at pp. 169-170.) The court also held that the allegations in the four corners of 

the complaints sufficiently created the possibility of coverage. (Id. at pp. 170-171.) 

Two of the complaints alleged that the employees were working for Fast Trek at the time 

of the accident and that the general contractor and subcontractor caused their injuries 

through their agents, servants, or employees—which would include Fast Trek. (Id. at 

p. 170.) Two of the other complaints similarly alleged that the general contractor and 

subcontractor acted negligently through their agents, servants, and/or employees—which 

again would include Fast Trek. (Ibid.) The complaints therefore suggested a possibility 

of coverage triggering First Mercury’s duty to defend. (Id. at p. 171.) 

Topa also cites to Ramara, Inc. v. Westfield Ins. Co. (E.D.Pa. 2014) 298 F.R.D. 

219, which was cited by the First Mercury court. In Ramara, an employee of a 

construction subcontractor was injured at a jobsite. The employee thereafter asserted 

claims against the general contractor and not the employer—who he was barred from 
24

suing under the state’s worker compensation scheme. The Ramara court held that 

consideration of the four corners of the complaint gave rise to the possibility of coverage 

and the general contractor was entitled to a defense under the subcontractor’s additional 

insured provision. The employee had alleged in its complaint that the general contractor 

was acting by and through its agents, servants, and/or employees. Accordingly, the court 

held that it was possible that the jury could find that the employer’s conduct caused the 

employee’s injury. (Id. at p. 226.)

Lastly, Topa relies on Pro Con, Inc. v. Interstate Fire & Cas. Co. (D.Me. 2011) 

794 F.Supp.2d 242. In Pro Con, the allegations of the underlying complaint clearly 

established that the complained of injury arose from the insured’s operations, even 

though the insured was not expressly named in the complaint. (Id. at p. 257.) 

First Mercury, Ramara, and Pro Con are readily distinguishable from the present 

case. Kielty did not allege in his complaint that his accident was caused in whole or in 

part by those acting on behalf of Advent, which would have—conceivably—included 

Johnson as a subcontractor working under Advent’s subcontractor, Pacific. Neither do 

the undisputed facts show that Kielty’s injuries were sustained as a result of Johnson’s 

acts at the project site that day. Again, Kielty’s argument that Johnson was responsible, 

in whole or in part, for Kielty’s accident is based solely on speculation. 

Additionally, we must reject Topa’s argument to the extent that it claims that 

Advent and the project owner’s cross-complaint against Johnson in the main Kielty 

Action, which alleged that Johnson was negligent, creates a potential for coverage. The 

allegations made by Advent and the project owner in their cross-complaint against 

Johnson were not asserted against Johnson in the main Kielty Action—the action for 

which indemnity and coverage are sought. Therefore, the allegations in the crosscomplaint cannot create coverage. (See Monticello Ins. Co. v. Essex Ins. Co. (2008) 162 

Cal.App.4th 1376, 1389.)
25

For these reasons, we do not believe that Topa satisfies its burden in opposing 

National Union’s motion for summary judgment. Topa’s speculations about unknown 

facts fail to show that a triable issue of material fact exists regarding actual coverage. 

Accordingly, we do not believe the trial court erred when it granted National Union’s 

motion for summary judgment. Without actual coverage, Topa cannot obtain equitable

contribution from National Union. It is also not entitled to a declaration that it is entitled 

to reimbursement from National Union.

And for these same reasons, we do not find that Topa met its initial burden on its 

motion for summary judgment to make a prima facie showing of actual coverage. 

Topa’s showing below consisted of its speculation regarding facts that do not actually 

exist in the record. We cannot reasonably infer from the stated evidence that Johnson, or 

Kielty himself, caused Kielty’s injuries; we can only use guesswork or our imagination. 

Accordingly, we do not find the court erred when it denied Topa’s motion for summary 

judgment.

4. “Other Insurance” Clauses

Additionally, even if we were to find that National Union’s excess policy provided 

coverage to Advent as an additional insured, National Union would still be entitled to 

judgment in its favor. We agree with National Union that the Topa policy was a specific 

excess policy that attached prior to National Union’s general excess policy.

a. Policy Language

The National Union excess policy expressly states that National Union “will not 

make any payment under [the excess] policy unless and until: [¶] 1. the total applicable 

limits of Scheduled Underlying Insurance have been exhausted by the payment of Loss to 

which this policy applies and any applicable, Other Insurance have been exhausted by the 

payment of Loss . . . .” “Other Insurance” is defined as “a valid and collectible policy of 

insurance providing coverage for damages covered in whole or in part by this policy.”
26

The Topa excess policy provides that its excess liability indemnity extends to 

“indemnify the insured for the amount of loss which is in excess of the applicable limits 

of liability, whether collectible or not, of the Underlying Insurance inserted in Item 6 of 

the Declarations . . . .” Item 6 of the declarations lists, as the general liability policy, the 

Landmark policy (Advent’s primary policy). “Loss” is defined as “the sum paid in 

settlement of losses for which the insured is liable after making deduction for all 

recoveries, salvages or other insurance (other than recoveries under the policy of the 

Underlying Insurance) whether recoverable or not, and shall include all expenses and 

‘costs.’ ” 

b. Specific and General Excess Policies

“When two insurers cover the same level of liability (e.g., both primary or both 

excess) on the same risk as to the same insured, courts may require each to contribute to 

the cost of defending the claim or indemnifying the loss.” (Carmel Development Co. v.

RLI Ins. Co. (2005) 126 Cal.App.4th 502, 507-508 (Carmel Development).) Many 

insurance policies contain an “ ‘other insurance’ clause” that attempt to limit the 

insurer’s liability to the extent that other insurance policies may cover the same risk. (Id.

at p. 508.) “Although courts honor coverage terms, including ‘other insurance’ clauses, 

whenever possible, ‘where the policies of two or more insurers of a common insured, 

providing [the same level of] coverage for the same risk, contain conflicting “other 

insurance” clauses . . . if one insurer pays more than its share of the loss or defense costs 

without participation from the other insurer or insurers, a right to contribution arises.’ ” 

(Ibid.)

Even when an insurance policy has an “other insurance” clause that purports to be 

excess only and another insurance policy provides for pro rata coverage, “the prevailing 

judicial view is that imposing the entire liability for a loss on the former ‘would annul 

that policy’s language, and create the anomaly that courts will . . . enforce proration 
27

between policies [only] when they [both] have conflicting “excess other insurance” 

language barring proration.’ ” (Carmel Development, supra, 126 Cal.App.4th at p. 508.) 

The general rule when multiple policies share the same risk but have inconsistent “other 

insurance” clauses is to prorate according to each policy’s limits. (Id. at p. 509.) 

National Union argues that Carmel Development is directly on point and compels 

a conclusion that Topa’s excess policy was a specific excess policy that attached before 

National Union’s general excess policy. In Carmel Development, a dispute arose 

between two excess insurers, RLI Insurance Company (RLI) and Fireman’s Fund 

Insurance Company (Fireman’s Fund). (Carmel Development, supra, 126 Cal.App.4th at 

p. 506.) Carmel Development Company (Carmel) was the general contractor on a project 

constructing golf and residential facilities. Carmel subcontracted with Largo Concrete 

Company (Largo), which in turn subcontracted with CAB Concrete (CAB). During 

construction, a CAB employee was severely injured at the worksite. The employee filed 

a lawsuit against Carmel and Largo and settled against Largo. The lawsuit against 

Carmel proceeded to a jury trial, and a jury awarded the employee more than $10 million 

in damages. (Ibid.) 

Carmel was insured by a commercial general liability policy issued by Reliance 

Insurance Company (Reliance) and a $10 million excess liability policy from Fireman’s 

Fund. (Carmel Development, supra, 126 Cal.App.4th at p. 506.) Largo had a primary 

commercial liability policy with Acceptance Insurance Company (Acceptance) and a 

commercial umbrella policy with RLI. Reliance settled the employee’s lawsuit for 

$7.25 million, with Reliance paying its policy limit of $1 million and Fireman’s Fund 

paying $6.25 million. (Ibid.) 

Subsequently, Carmel sued Acceptance and RLI seeking a judicial determination 

that it was an additional insured under the Acceptance policy and that RLI (as the excess 

insurer) was required to contribute to the employee’s settlement after Acceptance’s 
28

policy limits were met. (Carmel Development, supra, 126 Cal.App.4th at pp. 506-507.) 

Fireman’s Fund successfully intervened in the action, and RLI filed a cross-complaint 

against Carmel, Fireman’s Fund, and Reliance. (Ibid.) At trial, Fireman’s Fund argued 

that it was an excess insurer just like RLI, and the policies contained irreconcilable 

“ ‘other insurance’ ” clauses. RLI argued that its policy was “ ‘second level excess’ ” 

that applied only when all other insurance was exhausted, including the Fireman’s Fund 

policy. (Id. at p. 507.) The trial court agreed with Fireman Fund’s argument, found that 

RLI and Fireman’s Fund had competing “other insurance” clauses, and concluded that it 

was appropriate for both of them to contribute to the settlement in proportion to their 

policy limits. (Ibid.) 

This court reversed the trial court’s decision. We noted that if we limited our 

analysis to the two competing “other insurance” clauses, we would have agreed with the 

trial court. The Fireman’s Fund’s policy stated that “ ‘[i]f there is any (1) Other 

Insurance . . . this policy shall apply as excess of and not contributory with such 

Insurance.’ ” (Carmel Development, supra, 126 Cal.App.4th at p. 509.) “ ‘Other 

Insurance’ ” was defined in the policy as “ ‘Insurance, other than Primary Insurance or 

Insurance which is specifically purchased by the Named Insured to be in excess of the 

Insurance afforded by this policy, which is available to the Insured and affords coverage 

for Injury or damage to which this policy applies.’ ” (Ibid.) RLI’s “other insurance” 

clause provided: “ ‘Whenever the insured is covered by other primary, excess or 

excess-contingent insurance not scheduled on this policy as scheduled underlying 

insurance, this policy shall apply on in excess of, and will not contribute with, such other 

insurance. This policy shall not be subject to the terms, conditions or limitations of such 

other insurance.’ ” (Ibid.)

We concluded, however, that the language of the insurance policies in question 

rendered it apparent that RLI and Fireman’s Fund were not on the same footing with each 
29

other. Fireman’s Fund provided that it would provide coverage immediately upon 

exhaustion of Reliance’s policy limits. (Carmel Development, supra, 126 Cal.App.4th at 

pp. 510-511.) The Fireman’s Fund policy specifically stated that it would “pay on behalf 

of the Insured those sums in excess of Primary Insurance that the Insured becomes legally 

obligated to pay as damages.” (Id. at p. 510.) In other words, the Fireman’s Fund’s 

policy was specifically excess to that of the primary insurer, Reliance.

In contrast, the language of RLI’s policy obligated RLI to provide coverage only 

when the limits of both the Acceptance policy and all other available coverage, including 

primary and excess, were exceeded. (Carmel Development, supra, 126 Cal.App.4th at 

pp. 510-511.) “RLI’s insuring agreement promised, ‘subject to the terms, conditions and 

exclusions of this policy,’ to pay ‘all sums which the insured becomes legally obligated 

to pay as ultimate net loss, because of: [¶] A. Bodily injury and property damage; or [¶] 

B. Personal injury; or [¶] C. Advertising injury caused by an occurrence which takes 

place during the policy period . . . .’ Under the next paragraph, ‘LIMITS OF 

LIABILITY,’ RLI stated that it would be liable only ‘for the ultimate net loss in excess 

of: [¶] 1. the applicable limits of scheduled underlying insurance stated in Item 5 of the 

Declarations, for occurrences covered by scheduled underlying insurance, plus the limits 

of any unscheduled underlying insurance which also provides coverage for such 

occurrences . . . .’ [¶] . . . ‘Ultimate net loss’ represented the amount for which the 

insured was liable ‘after deducting for all other recoveries and salvages,’ and it excluded 

certain payments, fees, and expenses. The term ‘scheduled underlying insurance’

referred to the policies listed in the ‘Schedule of Underlying Insurance,’ which (for 

comprehensive general liability) meant the policy issued by Acceptance. The term 

‘unscheduled underlying insurance’ was defined as ‘any insurance policies available to 

any insured (whether primary, excess, excess-contingent, or otherwise) except the 

policies listed in the Schedule of Underlying Insurance.’ ” (Id. at p. 510.)
30

Accordingly, we concluded in Carmel Development that it was clear from the 

language of the RLI policy that it offered a different level of coverage to its insured 

compared with the Fireman’s Fund policy. (Camel Development, supra, 126 Cal.App.4th 

at p. 514.) It was therefore unnecessary to resort to proration. (Ibid.)

Here, like the RLI policy contemplated in Carmel Development, the National 

Union policy provided that National Union would be obligated only after “Other 

Insurance have been exhausted by the payment of Loss . . . .” The National Union policy 

specifically defined “Other Insurance” as “a valid and collectible policy of insurance 

providing coverage for damages covered in whole or in part by this policy.” And the 

Topa excess policy is similar to the Fireman’s Fund’s policy in Carmel Development. 

Topa’s excess policy agreed to “indemnify the insured for the amount of loss which is in 

excess of the applicable limits of liability, whether collectible or not, of the Underlying 

Insurance inserted in Item 6 of the Declarations . . . .” Item 6 of the declarations lists, as 

the general liability policy, the Landmark policy. 

Topa, however, argues that the definition of “loss” in its policy is, in effect, an 

“other insurance” policy. As described above, Topa’s policy defined “Loss” as “the sum 

paid in settlement of losses for which the insured is liable after making deduction for all 

recoveries, salvages or other insurance (other than recoveries under the policy of the 

Underlying Insurance) whether recoverable or not, and shall include all expenses and 

‘costs.’ ” (Italics added.) There is no definition of “other insurance” in the Topa policy.

As National Union notes, a similar argument was rejected in Fireman’s Fund 

Indemnity Co. v. Prudential Assurance Co. (1961) 192 Cal.App.2d 492 (Fireman’s 

Fund). There, an insurer, whose policy defined “ ‘ultimate net loss’ ” to mean “ ‘the 

sums paid in settlement of losses for which the Assured is liable after making deductions

for all recoveries, salvages and other insurances . . . whether recoverable or not. . . .’ ” 

unsuccessfully argued that this definition constituted a valid “ ‘other insurance’ ” clause. 
31

(Id. at p. 494.) The appellate court noted that the definition of “loss” that the insurer 

attempted to construe as an “other insurance” clause referred to insurance which the 

primary insurer could enlist—therefore, if the primary insurer could reduce its loss by 

other insurance, the insurer would get the benefit. (Id. at p. 496.) Additionally, the 

insurer was seeking a double benefit from its definition of “loss” by “fix[ing the primary 

insurer’s] ultimate net loss under it and deduct[ing] from its liability all other insurance” 

and by “fix[ing] its own ultimate net loss under it, claiming the benefit of all other 

insurance.” (Ibid.) Lastly, enforcement of the provision in the way argued by the insurer 

could conceivably result in a denial of insurance protection to the insured, since the 

clause calls for deduction of other insurance whether recoverable or not. (Id. at 

pp. 496-497.) The appellate court concluded that if “the company would limit its liability 

by the interposition of ‘other insurance,’ it should at least define the ‘other insurance.’ ” 

(Id. at p. 501.) 

We agree with the analysis set forth in Fireman’s Fund. And we find the rationale 

set forth in Carmel Development is applicable here. Although Topa’s definition of “loss” 

referenced “other insurance,” the reference was vague. There was no definition of what 

this “other insurance” included. Additionally, Topa’s policy contained specific language 

that indicated that coverage applied immediately once the Landmark policy was 

exhausted. In contrast, National Union’s “other insurance” clause is clearly written, 

specifically defining other insurance as “a valid and collectible policy of insurance 

providing coverage for damages covered in whole or in part by this policy.” And, 

importantly, National Union’s excess policy expressly states that coverage will not apply 

until “the total applicable limits of Scheduled Underlying Insurance have been exhausted 

by the payment of Loss to which this policy applies and any applicable, Other Insurance 

have been exhausted by the payment of Loss . . . .” 
32

Based on the foregoing, we also do not find the court erred when it entered 

summary judgment in favor of National Union. Topa cannot demonstrate that its policy 

was the same level excess policy as National Union’s.4

DISPOSITION

The judgment is affirmed. National Union Fire Insurance Company of Pittsburgh, 

PA is entitled to its costs on appeal.

 

4 Based on our conclusion that summary judgment was properly entered in favor 

of National Union because (1) there is no evidence that Kielty or Johnson caused Kielty’s 

injuries and (2) National Union’s excess policy was a general excess policy while Topa’s 

excess policy was a specific excess policy, we need not address National Union and 

Topa’s arguments pertaining to whether the Pacific/Johnson subcontract incorporated the 

insurance provisions of the Advent/Pacific contract.
Premo, J.

WE CONCUR:

Rushing, P.J.

Grover, J.

Advent, Inc. v. National Union Fire Insurance Company of Pittsburgh, PA

H041934
Trial Court: Santa Clara County Superior Court

Superior Court No. 1-13-CV238904

Trial Judge: Hon. William J. Elfving

Counsel for Intervener/Appellant:

Topa Insurance Company

MURCHISON & CUMMING

Philip H. Thompson

Counsel for Defendant/Respondent:

National Union Fire Insurance 

Company of Pittsburgh, PA

McCURDY & FULLER

Rosemary J. Springer 

Kevin G. McCurdy

Advent, Inc. v. National Union Fire Insurance Company of Pittsburgh, PA

H041934