However, we need not decide if a mere volunteer may recover in a claim for contribution, because plaintiff was not a mere volunteer. No legal action may be brought against us until there has been full compliance with all the terms of this policy. The amount of that obligation has been finally determined by judgment after trial. Provisions of this type generally are enforceable. However, an insurer who unjustifiably refuses to defend an insured breaches the insurance contract and waives any provisions that define the insured's duties and obligations.
Defendant also contends that plaintiff's claim is barred by the applicable statute of limitations.
An insurer who sues another insurer under a theory of equitable subrogation to recover settlement payments and defense costs is barred from recovering payments made and expenses incurred more than three years before suit was filed. Although we have held that plaintiff has not stated a claim under subrogation theory, we hold that its claim for contribution is sufficiently analogous to a claim for subrogation under Jamestown to warrant application of the three year statute of limitations set out in N.C. Gen. Stat. We disagree with defendant's assertion that the one year statute of limitations under N.C. Gen. Stat. G.S. section 1B-3 applies to actions for contribution among joint tortfeasors. See Duke Univ.