Filed 3/3/23; Certified for Publication 3/20/23 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

CALIFORNIA CAPITAL INSURANCE 

COMPANY,

 Plaintiff and Respondent,

v.

EMPLOYERS COMPENSATION 

INSURANCE COMPANY,

 Defendant and Appellant.

 G060532

 (Super. Ct. No. 30-2017-00928693)

 O P I N I O N

Appeal from a judgment and postjudgment order of the Superior Court of 

Orange County, Glenn R. Salter, Judge. Reversed and remanded.

Lewis Brisbois Bisgaard & Smith, Jordon E. Harriman and Jeffry A. Miller

for Defendant and Appellant.

Ellen Sims Langille for California Workers’ Compensation Institute as 

Amicus Curiae on behalf of Defendant and Appellant.
2

Berger Khan and David B. Ezra for American Property Casualty Insurance 

Association as Amicus Curiae on behalf of Defendant and Appellant.

Grant, Genovese & Baratta and Lance D. Orloff for Plaintiff and 

Respondent.

* * *

This appeal arises from one insurer’s equitable contribution claim against 

another insurer related to the defense and settlement of an underlying personal injury 

lawsuit against their common insured. The insured’s general liability insurer defended 

under a reservation of rights and paid out its $2 million policy limits to settle the lawsuit. 

The insured’s workers’ compensation and employers’ liability insurer denied coverage

and did not participate in the defense or settlement.

This lawsuit followed, with the general liability insurer suing the workers’

compensation and employers’ liability insurer for equitable contribution. Following a 

bench trial, the trial court entered judgment for the general liability insurer, awarding 

roughly half the cost of defense and indemnity. 

We reverse. It is well settled that an equitable contribution claim only lies 

if the two insurers share the same level of liability on the same risk as to the same 

insured. In this case, the general liability insurer is not entitled to equitable contribution 

because it did not insure the same risk as the workers’ compensation and employers’ 

liability insurer. To the contrary, as observed by the trial judge, the two policies are 

mutually exclusive: the general liability policy covers bodily injury claims unless the 

claimant is an employee injured in the course and scope of his or her employment, 

whereas the workers’ compensation and employers’ liability policy covers bodily injury 

claims only if the claimant is an employee injured in the course and scope of his or her 

employment. Further, the workers’ compensation and employers’ liability policy did not 

potentially cover the underlying lawsuit, so that carrier had no duty to defend or 
3

indemnify its insured against the claims in question. The judgment must therefore be 

reversed and remanded.

FACTS

Byron Remeyer and Asia Torres both worked for the La Sirena Grill 

(La Sirena) at its South Laguna location. One night in August 2013, they had drinks 

together at La Sirena and then left around 10:00 p.m. to go to a party. Shortly before 

midnight, Torres, who was intoxicated, drove his vehicle into a tree in Laguna Niguel.

Remeyer, his passenger, suffered traumatic, life-altering brain injuries as a result.

Remeyer filed a complaint against La Sirena and Torres for negligence and 

negligence per se (the Remeyer lawsuit). He alleged that Torres was employed as a cook 

for La Sirena and “got drunk on the job” on the night of the accident, that drinking on the 

job was a common occurrence at La Sirena, that La Sirena provided the alcohol that 

Torres drank on the night of the accident, that La Sirena’s management was well aware of 

Torres’s intoxicated state when Torres and Remeyer left for the party, and yet 

management did nothing to prevent Torres from driving. Remeyer also alleged that 

Torres was acting within the course and scope of his employment for La Sirena at the 

time of the accident, and was driving a vehicle that La Sirena had entrusted to him for 

performing his job duties. The complaint did not mention that Remeyer was also an 

employee of La Sirena. 

At the time of the accident, La Sirena was insured by two different insurers. 

The first insurer, respondent California Capital Insurance Company (California Capital), 

issued La Sirena a commercial general liability (CGL) policy with bodily injury limits of 

$2 million per occurrence; this policy generally covered bodily injury claims, but 

excluded coverage for workers’ compensation claims and for bodily injuries arising out 

of and in the course of a claimant’s employment with La Sirena. 
4

The second insurer, appellant Employers Compensation Insurance 

Company (ECIC), issued La Sirena a workers’ compensation and employers’ liability 

policy. Part One of this policy covered workers’ compensation claims, and Part Two 

covered bodily injury claims by employees arising out of and in the course of their 

employment with La Sirena if not otherwise covered by workers’ compensation.

La Sirena tendered the Remeyer lawsuit to its CGL insurer, California 

Capital. California Capital agreed to defend La Sirena under a reservation of rights 

citing, among other provisions, its employer’s liability exclusion for bodily injuries 

arising out of and in the course of a claimant’s employment with La Sirena. 

During discovery, it came to light that Remeyer had been an employee of 

La Sirena at the time of the accident, that both Remeyer and Torres had worked at 

La Sirena earlier in the day, but that both had been off the clock for several hours by the 

time the accident occurred. Whether Remeyer was acting within the course and scope of 

his employment at La Sirena at the time of the accident (a question relevant to the 

applicability of California Capital’s employer’s liability exclusion) remained contested. 

In May 2014, Remeyer’s counsel made a settlement demand of $2 million, 

the California Capital policy limit. California Capital advised La Sirena that if it agreed 

to pay the settlement demand, it would do so under a reservation of its right to seek 

reimbursement from La Sirena pursuant to Blue Ridge Ins. Co. v. Jacobsen (2001) 

25 Cal.4th 489 (Blue Ridge). 

California Capital notified La Sirena’s workers’ compensation and 

employer liability insurer, ECIC, of the settlement demand, explained that Remeyer was 

an employee injured within the course and scope of his employment so as to trigger 

coverage under the ECIC policy, and asked ECIC to participate in the settlement. ECIC 

denied coverage, asserting there was no potential for coverage under either part of its 

policy. 
5

In the months that followed, California Capital incurred roughly $88,000 in 

attorney fees defending the claims against La Sirena. Then, in June 2015, California 

Capital settled the Remeyer lawsuit on La Sirena’s behalf for its policy limits of 

$2 million, without any participation from ECIC. California Capital also settled its Blue 

Ridge reimbursement claim against La Sirena, and as part of that settlement, La Sirena 

assigned California Capital its rights against ECIC.

California Capital then filed the subject lawsuit against ECIC for equitable 

contribution.1 ECIC moved for summary judgment, asserting neither part of its policy 

covered the allegations in the Remeyer lawsuit; the trial court denied that motion without

explanation. 

The trial court conducted a bench trial on stipulated facts in December 

2020. After taking the matter under submission, the court found the ECIC policy 

potentially covered the Remeyer lawsuit and California Capital was equitably entitled to 

half of what it expended in defense and settlement of that lawsuit. The court then entered 

judgment for California Capital, awarding it $44,182.42 in equitable contribution for the 

cost of defending La Sirena, $1 million in equitable contribution for indemnifying 

La Sirena, and interest of $501,299.37.

ECIC moved to set aside the judgment; the trial court denied that motion.

In its minute order, the court acknowledged that the two policies are “mutually exclusive” 

and that ECIC generally has no duty to cover civil suits under its workers’ compensation 

policy, but reasoned that this “general rule must give way where its uncritical application 

would work a hardship.” 

1

The complaint also alleged certain claims that California Capital acquired 

from La Sirena as part of the settlement of the Remeyer lawsuit, but California Capital

later dismissed those causes of action.
6

ECIC filed a notice of appeal from the judgment and the order denying its 

motion to set aside the judgment. 

DISCUSSION

The issue on appeal is straightforward: is California Capital entitled to 

equitable contribution from ECIC for the cost of defending and indemnifying their 

common insured, La Sirena? This is a question of law we review de novo. (Certain 

Underwriters at Lloyds, London v. Arch Specialty Ins. Co. (2016) 246 Cal.App.4th 418, 

429; Carmel Development Co. v. RLI Ins. Co. (2005) 126 Cal.App.4th 502, 507.)

Equitable contribution (not to be confused with equitable subrogation or 

equitable indemnity) is a loss sharing procedure by which an insurer that defended and 

settled a claim against its insured may seek to apportion those costs among coinsurers 

who refused to settle or defend the claim. (Maryland Casualty Co. v. Nationwide Mutual 

Ins. Co. (2000) 81 Cal.App.4th 1082, 1089; see also Croskey et al., Cal. Practice Guide: 

Insurance Litigation (The Rutter Group 2022) ¶ 8:65.1, p. 8-26 [discussing differences 

between equitable contribution, equitable indemnity, and equitable subrogation, and 

noting “it is important for an insurer seeking reimbursement from other insurers to select 

the appropriate remedy”].)

“In the insurance context, the right to contribution arises 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 any participation by 

the others. Where multiple insurance carriers insure the same insured and cover the same 

risk, each insurer has independent standing to assert a cause of action against its 

coinsurers for equitable contribution when it has undertaken the defense or 

indemnification of the common insured. Equitable contribution permits reimbursement 

to the insurer that paid on the loss for the excess it paid over its proportionate share of the 

obligation, on the theory that the debt it paid was equally and concurrently owed by the 
7

other insurers and should be shared by them pro rata in proportion to their respective 

coverage of the risk. 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.” (Fireman’s Fund Ins. Co. v. Maryland Casualty

Co. (1998) 65 Cal.App.4th 1279, 1293, fn. omitted (Fireman’s Fund).)

Equitable contribution is only available if the two insurers “‘share the same 

level of liability on the same risk as to the same insured.’” (Transcontinental Ins. Co. v. 

Insurance Co. of the State of Pennsylvania (2007) 148 Cal.App.4th 1296, 1303; see also 

Fireman’s Fund, supra, 65 Cal.App.4th at p. 1294, fn.4.) If the insurers do not (1) “share 

the same level of obligation, (2) on the same risk, (3) as to the same insured[,] . . . the 

equitable contribution claim must fail.” (Lexington Ins. Co. v. Allianz Ins. Co. (9th Cir. 

2006) 177 Fed.Appx. 572, 573; see, e.g., Travelers Indemnity Co. of Ct. v. Hudson Ins.

Co. (E.D.Cal. 2020) 442 F.Supp.3d 1259, 1269 [CGL insurer was not entitled to 

equitable contribution from common insured’s professional liability insurer because their

two policies “did not insure . . . against the same risk”].) 

We must therefore determine whether the California Capital policy and 

ECIC policy cover the same risk. California Capital’s CGL policy covers bodily injury 

claims; it excludes coverage for workers’ compensation claims and claims by employees 

injured in the course and scope of employment.2 ECIC’s policy covers workers’

compensation claims in Part One, and in Part Two it covers bodily injury claims by 

2

To quote the policy, California Capital agreed to “pay those sums that the 

insured becomes legally obligated to pay because of ‘bodily injury’ or ‘property damage’ 

to which this insurance applies,” and “to defend the insured against any ‘suit’ seeking 

those damages.” The policy contains an exclusion for “[a]ny obligation of the insured 

under a workers’ compensation . . . law,” as well as an exclusion for bodily injury to an 

“‘employee’ of the insured arising out of and in the course of: [¶] (a) [e]mployment by 

the insured; or [¶] (b) Performing duties related to the conduct of the insured’s 

business . . . .” 
8

employees arising out of and in the course of their employment with La Sirena if not 

otherwise covered by workers’ compensation.3 

It becomes immediately apparent after reviewing these coverages that

California Capital’s CGL policy does not cover the same risk as ECIC’s workers’

compensation and employers’ liability policy. In fact, we agree with the trial judge the 

two policies are mutually exclusive: California Capital’s CGL policy covers bodily 

injury claims unless the claimant is an employee injured in the course and scope of his 

employment, whereas ECIC’s workers’ compensation and employers’ liability policy 

covers bodily injury claims only if the claimant is an employee injured in the course and 

scope of his or her employment. Because California Capital and ECIC did not cover the

same risk, California Capital cannot establish one of the requisite elements of equitable 

contribution, and its claim necessarily fails.4

California Capital nonetheless insists it is entitled to equitable contribution 

because discovery in the Remeyer lawsuit established Remeyer was a La Sirena 

employee, thereby creating a potential for coverage under ECIC’s policy and triggering 

3

To quote the ECIC policy, in Part One, ECIC agreed to “pay promptly 

when due the benefits required of you by the workers compensation law” and to “defend 

at our expense any claim, proceeding or suit against you for benefits payable by this 

insurance.” In Part Two, ECIC agreed to “pay all sums that you legally must pay as 

damages because of bodily injury to your employees,” provided that the “bodily injury 

must arise out of and in the course of the injured employee’s employment by [the 

insured].” Part Two contains an exclusion for “[a]ny obligation imposed by a workers 

compensation . . . law.” 

4

Nor could the two policies cover the same risk, as workers’ compensation 

coverage cannot be included in a CGL policy. (Ins. Code, § 108, subd. (a) [liability 

insurance includes “[i]insurance against loss resulting from liability for injury, fatal or 

nonfatal, suffered by any natural person, . . . but does not include worker’s compensation

. . . insurance” (italics added)]; Reagen’s Vacuum Truck Service, Inc. v. Beaver Ins. Co. 

(1994) 31 Cal.App.4th 375, 383 [general liability coverage and other classes of insurance 

“may not be included in the same policy providing workers’ compensation and 

employers’ liability insurance”].)
9

ECIC’s duty to defend. This argument ignores the fact that the two policies do not insure

against the same risk (an essential element of equitable contribution); it also reflects a 

fundamental misunderstanding of what ECIC’s policy covers. 

Before addressing California Capital’s argument, we review the interplay 

between Parts One and Two of the ECIC policy. As noted, ECIC’s policy covers

workers’ compensation claims in Part One, and in Part Two it covers bodily injury claims 

by employees arising out of and in the course of their employment with La Sirena if not

otherwise covered by workers’ compensation. As our Supreme Court has explained, 

“these two kinds of coverage are mutually exclusive,” but they are “meant to be read 

together.” (Producers Dairy Delivery Co. v. Sentry Ins. Co. (1986) 41 Cal.3d 903, 916

(Producers Dairy).)

Since workers’ compensation is generally an employee’s exclusive remedy

against his or her employer for injuries suffered in the course and scope of employment

(Lab. Code, §§ 3602, subd. (a), 5300; Privette v. Superior Court (1993) 5 Cal.4th 689, 

697), Part One of ECIC’s policy (workers’ compensation coverage) applies in the 

majority of cases where an employee is injured in the course and scope of employment. 

(Power Fabricating, Inc. v. State Comp. Ins. Fund (2008) 167 Cal.App.4th 1446, 1452

(Power Fabricating) [“In the vast majority of cases where an employee is injured in the 

course and scope of employment, workers’ compensation exclusivity excludes ELI 

coverage”].) 

However, there are “rare situations” where an employee may sue his or her 

employer for injuries in superior court, in which case Part Two would be triggered. 

(Power Fabricating, supra, 167 Cal.App.4th at pp. 1452-1453; see California Capital 

Ins. Co. v. Republic Underwriters Ins. Co. (N.D.Cal. 2020) 445 F.Supp.3d 61, 68

(Republic).) For example, an employee injured on the job may sue his or her employer in 

superior court if the injury was proximately caused by a willful physical assault by the 

employer (Lab. Code, § 3602, subd. (b)(1)); if the injury was aggravated by the 
10

employer’s fraudulent concealment of its existence (id., subd. (b)(2)); if the injury was 

proximately caused by a defective product manufactured by the employer (id., 

subd. (b)(3)); or if the injury was proximately caused by the employer’s knowing removal 

of, or knowing failure to install, a point of operation guard on a power press (Lab. Code,

§ 4558, subd. (b)). Part Two therefore “serve[s] as a ‘gap-filler,’ providing protection to 

the employer in those situations where the employee has a right to bring a tort action 

despite the provisions of the workers’ compensation statute or the employee is not subject 

to the workers’ compensation law.” (Producers Dairy, supra, 41 Cal.3d at p. 916.) It “is 

not a general liability policy providing coverage for injuries to members of the general 

public.” (Id. at p. 917.)

California Capital insists it is entitled to equitable contribution because 

there was a possibility that Remeyer, as a La Sirena employee, was acting in the course 

and scope of employment at the time of the accident, thereby triggering a potential for 

coverage under the ECIC policy. We cannot agree.

If Remeyer was acting in the course and scope of his employment at the 

time of the accident, his exclusive remedy would have been to file a workers’ 

compensation claim, and his civil suit against his employer would have been statutorily 

barred by the workers’ compensation exclusivity doctrine. Although Part One of ECIC’s 

policy would potentially cover any workers’ compensation claim he might have filed,

Part One could not cover the civil suit because there is no way the trial court in that case 

could acquire jurisdiction to award workers’ compensation benefits. (La Jolla Beach 

& Tennis Club, Inc. v. Industrial Indemnity Co. (1994) 9 Cal.4th 27, 43 [workers’ 

compensation and employers’ liability insurer had no duty to defend insured against its 

former employee’s civil suit for wrongful termination; there was no potential for 

coverage because “the superior court never had jurisdiction to award workers’

compensation benefits”].) 
11

Further, Part Two of ECIC’s policy was not triggered because there were 

no allegations or facts in the Remeyer lawsuit suggesting any of the rare exceptions to the 

workers compensation exclusivity doctrine apply here: Remeyer did not allege La Sirena 

physically assaulted him, fraudulently concealed his injuries, manufactured a defective 

product that injured him, or injured him with a punch press. (See Lab. Code, §§ 3602, 

subd. (b)(1-3), 4558, subd. (b).) 5 

In sum, even if Remeyer was potentially acting in the course and scope of 

his employment at the time of the accident, there is no theory whereby the Remeyer 

lawsuit could fall within ECIC’s coverage, and thus there was no duty to defend by 

ECIC. (Gray v. Zurich Insurance Co. (1966) 65 Cal.2d 263, 276, fn.15 [“insurer need 

not defend if the third party complaint can by no conceivable theory raise a single issue 

which could bring it within the policy coverage”].) California Capital’s equitable 

contribution claim fails for this additional reason. (See Republic, supra, 445 F.Supp.3d at 

p. 69 [granting summary judgment for workers’ compensation and employers’ liability 

5

The federal district court’s analysis in Republic, supra, 445 F.Supp.3d 61, 

is instructive. In that case, an employee of a golf course visited the golf course on his day 

off to play golf with his father, and his coworker struck him in the head with a golf club 

while trying to demonstrate the proper hand grip on the club. (Id. at pp. 63-64.) The 

employee filed a workers’ compensation claim and also sued his employer, the golf 

course, in superior court. (Id. at p. 63.) Much like in the present case, the employer’s 

CGL insurer, California Capital, defended and settled the civil suit, and its workers’ 

compensation and employers’ liability insurer, Republic, denied coverage. (Id. at p. 64.) 

California Capital sued Republic for reimbursement (i.e., equitable contribution) and 

other claims. (Ibid.) 

The district court granted summary judgment for Republic, finding there 

was no potential for coverage under either its workers’ compensation coverage or its 

employers’ liability coverage. (Republic, supra, 445 F.Supp.3d at p. 69.) The court 

reasoned, as we do above, that “nothing about the undisputed facts presented here raises 

the potential that, if [the] injury did occur in the course and scope of his employment, it 

would fall outside the provisions of the Workers’ Compensation policy such that 

Employers Liability coverage would be available.” (Ibid.)
12

insurer on equitable contribution claim because its policy did not potentially cover the 

claims in the insured employee’s underlying personal injury lawsuit].)

DISPOSITION

The judgment for California Capital is reversed. On remand, the trial court 

is directed to enter judgment for ECIC. ECIC is to recover its costs on appeal. (Cal. 

Rules of Court, rule 8.278(a)(1).)

GOETHALS, J.

WE CONCUR:

O’LEARY, P. J.

BEDSWORTH, J.
Filed 3/20/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

CALIFORNIA CAPITAL INSURANCE 

COMPANY,

 Plaintiff and Respondent,

v.

EMPLOYERS COMPENSATION 

INSURANCE COMPANY,

 Defendant and Appellant.

 G060532

 (Super. Ct. No. 30-2017-00928693)

 O P I N I O N

Appellant has requested that our opinion filed on March 3, 2023, be certified for 

publication. It appears that our opinion meets the standards set forth in California Rules 

of Court, rule 8.1105(c). The request is GRANTED. 

The opinion is ordered published in the Official Reports. 

GOETHALS, J.

WE CONCUR:

O’LEARY, P. J.

BEDSWORTH, J.