Opinion
Faced with multiple lawsuits, a company tendered the defense of the actions to one of its insurers. After paying defense costs and indemnity, the insurer looked to an alleged coinsurer for contribution. The coinsurer refused to contribute on the ground that it had not been asked to participate in the litigation, by tender of defense or otherwise. This lawsuit followed. The trial court found that the coinsurer was obligated to contribute. We disagree and
Background
In the late 1980’s and early 1990’s, The Anden Group, a general contractor, worked on several residential developments in Southern California. Anden contracted with Applied, Inc., or a related company to waterproof the outdoor decks of the homes. After the properties were sold, the homeowners began to notice construction problems, including water damage to the decks. Litigation ensued. From 1989 to 1993, Anden was named as a
Meadowwood Village, located in Rancho Cucamonga, is a condominium complex consisting of 41 buildings, each housing eight units. On November 2, 1989, the Meadowwood homeowners association filed a construction defect action against Anden (Meadowwood Village Homeowners Association v. The Anden Group (Super. Ct. San Bernardino County, 1989, No. RCV051111)). Anden cross-complained against “Applied, Inc. dba Applied Systems Waterproofing” and its officers. The defense of the cross-complaint was tendered to respondent Truck Insurance Exchange. Truck retained Cummings & Kemp to defend Applied, Inc.; it chose separate counsel, Nyman & Johnson, to defend the officers. All told, Truck paid $154,652 in defense costs and approximately $50,000 in indemnity. A tender was also made to appellant Unigard Insurance Company. It paid $25,000 in defense costs and $30,000 in indemnity. 2
Cimarron Oaks VI is a 35-unit residential development in Ontario. On August 6, 1991, the Cimarron Oaks VI homeowners association filed suit against Anden, alleging various construction defects (Cimarron Oaks VI v. The Anden Group (Super. Ct. San Bernardino County, 1991, No. RCV059099)). Anden filed a cross-complaint against Applied Systems and its officers. By letter dated October 2, 1992, the defense of the cross-complaint was tendered to Truck. The defense was never tendered to Uni-gard. 3 Truck retained Cummings & Kemp to represent Applied Systems and chose Nyman & Johnson to represent the officers. 4 Truck paid $60,720 in defense costs and $15,000 in indemnity. 5
Another project, Cimarron Oaks XI, located in Diamond Bar, led to a similar lawsuit against Anden
(Cimarron Oaks XI v. The Anden Group
(Super. Ct. L.A. County, 1991, No. KC004708)). As in
Cimarron Oaks VI,
Anden cross-complained against Applied Systems and its officers. The defense was tendered to Truck but not to Unigard. Once again, Truck retained the same counsel to separately represent the company and the officers.
6
Truck paid
Homeowners in Vista del Flores, a 160-unit complex in Lake Forest, also filed a construction defect action against Anden (Vista Del Flores v. The Anden Group (Super. Ct. Orange County, 1993, No. 715927)). This time, Anden cross-complained against Applied, Inc., not Applied Systems or its officers. Applied, Inc., tendered the defense to Truck on August 4, 1994. Truck, in turn, retained Cummings & Kemp as defense counsel. Four months later, on or about December 14, 1994, Unigard received notice of the lawsuit. In response, Unigard began contributing to Applied, Inc.’s defense. By the end of the action, Track had paid $23,693 in defense costs; Unigard had paid $9,309. On June 4, 1996, the case was mediated and settled. Track and Unigard each paid $12,500 in indemnity. 8
Finally, in Chino Hills, residents of Sunset Townhomes, a condominium complex, were experiencing similar construction problems. They, too, filed suit against Anden (Sunset Townhomes Homeowners Association v. The Anden Group (Super. Ct. San Bernardino County, 1993, No. RCV03140)). They also named Applied, Inc., as a defendant. For its part, Anden filed a cross-complaint against Applied, Inc. In a letter'dated July 25, 1994, Applied, Inc., tendered the defense to Truck. Under a reservation of rights, Track retained Cummings & Kemp as defense counsel. Shortly thereafter, the case was also tendered to Unigard and Golden Eagle Insurance Company, both of which agreed to participate in the defense. On May 11, 1995, Track withdrew from the case, having paid $12,453 in defense costs. 9 Unigard incurred $12,111 in defense costs. In or around April 1996, the case settled for $75,000, with Unigard and Golden Eagle each paying half. 10
On April 30, 1997, after all of the construction defect cases had settled, Truck filed this action against seven insurance companies, seeking declaratory relief and equitable contribution. Neither Applied, Inc., nor Truck had requested Unigard’s participation in the Cimarron cases before they settled. Rather, by letter dated May 27, 1997—one month after the present action was filed but before it was served—Track demanded contribution and threatened to serve the complaint if Unigard refused to contribute. Track’s letter, consisting of 14 pages, recited the details of the underlying litigation and included several tables depicting the defense and indemnity payments made or allegedly owed by eight insurers, including itself.
By letter of June 24, 1997, Unigard informed Track that it was not liable for contribution in the Cimarron cases because it had not been tendered the defense. Unigard denied liability in the other cases on the ground that it had already paid defense costs and indemnity as to them. Track decided to go forward with this action.
On June 29 and June 30, 1998, Truck’s .claims for declaratory relief and contribution were tried to the court on
As to the Cimarron cases, Unigard was found liable for $103,600 in defense costs, indemnity, and interest. With respect to Vista del Flores and Sunset Townhomes, the trial court determined that Unigard was liable for a total of $15,330. Prejudgment interest was also awarded. The trial court reduced Unigard’s liability to account for the contribution payments made by other insurers. On September 15, 1998, judgment was ultimately entered in Truck’s favor for $100,860. Unigard filed a timely appeal.
Discussion
Unigard contends that it is not liable for defense costs or indemnity with regard to the Cimarron cases because it was not tendered the defense or otherwise put on notice of a potential claim for contribution. As to Vista del Flores and Sunset Townhomes, Unigard argues that the trial court erred in the way it allocated the loss among coinsurers and that prejudgment interest should not have been awarded. We address these points seriatim. 13
A. The Cimarron Cases
The question of whether Truck is entitled to contribution from Unigard in the
Cimarron
cases rests on the application of equitable principles to stipulated facts. Accordingly, we are presented with a question of law, which we decide de novo. (See
20th Century Ins. Co.
v.
Stewart
(1998)
The trial court concluded that Unigard was liable for contribution on the Cimarron cases, stating: “Truck’s right to contribution does not depend on its tender of the underlying matters to Unigard.” We agree that Truck did not have to tender the defense to Unigard. However, we conclude that, when Truck undertook the defense in the Cimarron cases, it should have notified Unigard of the possibility of contribution.
“Equitable contribution is . . . the right to recover . . . from a co-obligor who shares such liability with the party seeking contribution. 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. . . . 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 other insurers .... 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. [Citations.]
“[T]he reciprocal contribution rights of coinsurers who insure the same risk are based on the equitable principle that the burden of indemnifying or defending the insured with whom each has independently contracted should be borne by all the insurance carriers together, with the loss equitably distributed among those
Even so, absent compelling equitable reasons, courts should not impose an obligation on an insurer that contravenes a provision in its insurance policy.
(Signal Companies, supra,
Turning to the particulars of the Unigard policy, we focus on three of its provisions. First, the policy contained a “notice” provision requiring the insured to “promptly” inform Unigard of any claims, “suits,” or “occurrences.” 14 The notice provision also required the insured to “immediately” forward a copy of “any demands, notices, summonses or legal papers received in connection with [a] claim or ‘suit.’ ”
Second, the policy contained a “cooperation” clause, which provided that the insured would “[c]ooperate with [Unigard] in the investigation, settlement or defense of the claim or ‘suit.’ ”
Last, the policy prohibited payments by the insured without Unigard’s consent, stating: “No insureds will, except at their own cost, voluntarily make a payment, assume any obligation, or incur any expense, other than of first aid, without our consent.”
These three provisions play an important role in defining the insured-insurer relationship. With respect to notice provisions, one Court of Appeal has explained: “ ‘[A]n “occurrence” policy provides coverage for any acts or omissions that arise during the policy period even though the claim is made after the policy has expired.’ ... [H] ... [H] Occurrence policies were developed to provide coverage for damage caused by collision, fire, war, and other identifiable events. . . . Because the occurrence of these events was relatively easy to ascertain, the insurer was able to ‘conduct a prompt investigation of the incidentNotice provisions contained in such occurrence policies were ‘included to aid the insurer in investigating, settling, and defending claims,’ . . .”
(Pacific Employers Ins. Co.
v.
Superior Court
(1990)
Similarly, cooperation clauses serve an important purpose. “[A] condition of a policy requiring the cooperation and assistance of the assured in opposing a claim or an action lodged against him by an injured person is material to the risk and of the utmost importance in a practical sense. Without such cooperation and assistance the insurer is severely handicapped and may in some instances be absolutely precluded from advancing any
defense.”
(Valladao v. Fireman’s Fund Indem. Co.
(1939)
Finally, we come to the provision prohibiting an insured from making voluntary payments without the insurer’s consent. Typically, a breach of that provision occurs, if at all, before the insured has tendered the defense to the insurer. “The duty to defend is ‘a continuing one, arising on
tender of defense
and lasting until the underlying lawsuit is concluded [citation], or until it has been shown that there is no potential for coverage . . . .’”
(Foster-Gardner, Inc. v. National Union Fire Ins Co.
(1998)
The same temporal limits are relevant where an insured has made a voluntary payment in defending an action or resolving a claim. As our Supreme Court has noted: “The provisions . . . requiring [the insurer’s] prior consent to the expenditure of defense costs and permitting [the insurer] to assume the defense of any claim are common in [all] liability insurance policies. Their purpose ‘is to prevent collusion as well as to invest the insurer with the complete control and direction of the defense or compromise of suits or claims. . . .’”
(Gribaldo, Jacobs, Jones & Associates
v.
Agrippina Versicherunges A.G.
(1970)
In
Gribaldo,
the high court also stated that where, upon tender of the defense, an insurer wrongly refuses to defend, the insured may undertake its own defense and recover from the insurer the expenses of litigation, including costs and attorneys’ fees.
(Gribaldo, supra, 3
Cal.3d at p. 449; see also
Isaacson v. California Ins. Guarantee Assn.
(1988)
The Court of Appeal went on to explain that, unlike a notice provision or a cooperation clause, a no-voluntary-payment provision can be enforced without a showing of prejudice: “ ‘[T]he existence or absence of prejudice to [the insurer] is simply irrelevant to [its] duty to indemnify costs incurred
before
notice. The policy plainly provides that notice is a
condition precedent
to the insured’s right to be indemnified; a fortiori the right to be indemnified cannot relate back to payments made or obligations incurred before notice. . . . The prejudice requirement . . . applies only to the insurer’s attempt to assert lack of notice as a
policy defense
against payment even of losses and costs incurred
after
belated notice.’ ”
(Jamestown Builders, supra,
Having discussed the particulars of the Unigard policy, we next examine—in light of those particulars—the relation of Applied, Inc., to
Unigard and the nature of Truck’s claim against Unigard. (See
Fire Ins. Exchange
v.
American States Ins. Co., supra,
Nevertheless, although the policy language may not be controlling, it is certainly relevant. After all, we are supposed to consider the particulars of the policy in deciding whether equitable contribution is appropriate.
(Fire Ins. Exchange
v.
American States Ins. Co., supra,
While the court in
Signal Companies
acknowledged the importance of equitable principles, it also pointed out: “[The excess insurer’s] policy explicitly states that its liability would not attach until the primary coverage has been exhausted. ... [It further] provides that the duty to contribute to costs would arise only if [the insured] obtained [the excess insurer’s] written consent to incur costs which [the insured] neither sought nor obtained. . . . [![]... [The primary insurer’s] fundamental contention would require [the excess insurer] to contribute to the defense costs incurred by the primary carrier even though excess liability might never attach and
despite the explicit provisions of [the excess
insurer’s]
policy.
... [^] ... [^] To impose an obligation on [the excess insurer] to reimburse [the primary insurer]
in contravention of the provisions of its policy
could only be justified . . . by some compelling equitable consideration. We find no such consideration here.”
(Signal Companies, supra,
In this case, the question is not whether coinsurers can seek contribution from one another. Clearly, they can. Rather, the question is when does an insurer that is providing a defense have to raise the issue of contribution with potential coinsurers that are not participating in the litigation due to a lack of tender.
Obviously, at some point, Truck had to determine the identity of potential coinsurers. According to Truck, regardless of when it acquired that knowledge, notice to potential coinsurers was not necessary until the underlying actions had concluded. We reject that position and find that notice should be given sooner rather than later.
The insured-insurer relationship is based on the premise that, in the event of a claim, occurrence, or suit, the insured will tender the defense to the insurer, which will provide a defense and control the litigation with the full cooperation of the insured. “When the insurer provides a defense to its insured, the insured has no right to interfere with the insurer’s control of the defense . . . .”
(Safeco Ins. Co. v. Superior Court
(1999)
Applied, Inc., Unigard’s insured, tendered the defense of the Cimarron cases to Truck, not Unigard. 16 Absent tender, it is difficult to understand what, if anything, Unigard was supposed to do. (See Foster-Gardner, Inc. v. National Union Fire Ins. Co., supra, 18 Cal.4th at pp. 869, 886 [insurer’s duty to defend arises upon tender of defense].) Although the defense was tendered to, and accepted by, Truck, Unigard did not receive notice of its potential liability for contribution until after the Cimarron cases were resolved.
Under these circumstances, the imposition of contribution on Unigard—a stranger to the litigation—would subject it to a significant financial burden even though it did not enjoy any of the concomitant benefits, e.g., the right to participate in and control the defense. Truck decided to investigate and settle the Cimarron cases without Unigard’s involvement. Having done so, Truck should not be permitted to drag Unigard into the picture after the fact.
For instance, in the late 1980’s, there were three separate but related businesses operating under a variation of “Applied”: Applied Systems, Applied Systems Waterproofing, and, Unigard’s insured, Applied, Inc. 17 The named cross-defendant in the Cimarron cases, Applied Systems, was not insured by Unigard. Further, the record does not suggest that Unigard knew or should have known that Applied, Inc., was or would be a cross-defendant in the Cimarron cases. On the contrary, from a coverage perspective, Cimar-ron Oaks VI and Cimarron Oaks XI were substantially similar, and Truck had already made clear that Cimarron Oaks VI was not being tendered to Unigard. Quite possibly, Truck had superior knowledge that Applied, Inc., was the proper cross-defendant in the Cimarron cases. 18
If Truck had notified Unigard about potential contribution at the beginning of the Cimarron litigation, Unigard would have had two options. It could have decided not to participate in the defense, thereby risking a finding of liability in a separate action. Or it could have joined in the defense, making coverage litigation unnecessary. Indeed, in the other underlying cases—Meadowwood, Vista del Flores, and Sunset Townhomes—a tender was made to Unigard, and it paid defense costs and indemnity in all three. Unfortunately, the approach taken by Truck—notice in the form of a summons and complaint—came too late for Unigard to participate in the Cimarron cases. It also spawned a second round of litigation.
Moreover, since Unigard did not consent to any expenditures in the Cimarron litigation, the no-voluntary-payment provision precluded Applied, Inc. from recovering against Unigard. Truck does not dispute this. Instead, Truck asserts that it can obtain contribution from Unigard because the rights and obligations between coinsurers are governed by principles of equity, not policy provisions. That assertion is true as far as it goes, but we fail to see the equity in Truck’s point of view. To say that an insured cannot recover against its insurer is not to say that a coinsurer can.
The no-voluntary-payment provision is based on the equitable rule that “ ‘the insurer [is invested] with the
complete control and direction
of the defense’ ”
(Gribaldo, supra,
“[I]t is only when the insured has requested and been denied a defense by the insurer that the insured may ignore the policy’s provisions forbidding the incurring of defense costs without the insurer’s prior consent, and under the compulsion of that refusal undertake his own defense at the insurer’s expense. ... [1] ... 00 ... [If the insureds had] made the statutory demand [for a defense], [the insurers] would have been required to choose between accepting the defense at their expense, consenting to the expenditure of defense costs by [the insureds’] attorney, or refusing to defend (in which case [the insureds] could have assumed the defense at [the insurers’] expense). Having failed to make such a demand and thereby put [the insurers] to a choice, [the insureds] should not be entitled to recover defense costs voluntarily incurred by them.” (Gribaldo, supra, 3 Cal.3d at pp. 449-450, italics added.) Similarly, since Truck failed to put Unigard to a choice about joining in the defense, equity precludes Truck from being reimbursed for expenses it alone approved.
“[Unigard] did not turn down any tender of a defense, nor did it disclaim coverage responsibilities .... It took no action to prevent [Applied, Inc.,] from promptly tendering [a] claim, and there is no basis for findings of waiver, detrimental reliance, or insurer misconduct or nonperformance.”
(Jamestown Builders, supra,
In sum, the defense of the Cimarron cases was tendered to Truck. Because the cases were not tendered to Unigard, Truck should have notified Unigard of the potential for contribution. The notice should have been made promptly after Truck agreed to provide a defense. That is not to say that Truck had to tender the defense to Unigard. A simple notice regarding the possibility of contribution would have been sufficient. 20
Our conclusion finds support in the case law of other jurisdictions. In
Casualty Indent. Ins.
v.
Liberty Nat. Fire Ins. Co.
(D.Mont. 1995)
In
State of N.Y.
v.
Blank
(2d Cir. 1994)
As the Missouri Supreme Court has recognized, an insurer seeking contribution “must meet a test of reasonableness. In determining this issue the trier of fact may consider[, among other things,] ... the presence or absence of notice to other carriers, and the discussions among the carriers . . . .”
(State Farm Mut. Auto. Ins. v. MFAMut. Ins.
(Mo. 1984)
And in
United National Ins. v. Admiral Ins.
(U.S. Dist. Ct., E.D.Pa., Aug. 19, 1992, Civ. A. No. 90-7625)
“A venerable maxim holds that ‘[h]e who seeks equity must do equity.’ ... In this regard, the courts have stated that the right to contribution is not absolute; it depends on an analysis of several factors, including ‘the presence or absence of notice to other carriers.’ . . .
“Consideration of notice in a contribution action . . . comports with the ever present specter of fairness subsumed in equity. It is unfair to ask co-insurers to contribute to a completed settlement when [they] have been given absolutely no prior opportunity to participate in or simply monitor the lawsuit or the settlement proceedings, regardless of the participation of counsel for . . . the settling insurer.” (1992 WL 210000 at pp.*6-7, citations omitted.)
Nothing in
Meritplan Ins. Co. v. Universal Underwriters Ins. Co.
(1966)
In permitting contribution, the
Meritplan
court made a number of observations about the adverse consequences of such a broad rule. For example, the court noted that “[fjailure to grant contribution unjustly enriches the unknown as well as the recalcitrant insurer.” (
Moreover, it can hardly be said that Unigard was unknown, recalcitrant, or unjustly enriched. Nor did Unigard deny liability; it was never tendered the defense in the
Cimarron
cases. Finally, the court in
Meritplan
was concerned that both insurers might deny coverage (
Based on the foregoing analysis, we conclude that Truck was not entitled to contribution from Unigard with respect to the Cimarron cases. 22
B. Vista del Flores and Sunset *
Disposition
The judgment is reversed. On remand, the trial court shall not (1) award any damages based on the underlying litigation in Cimarron Oaks VI v. The Anden Group (Super. Ct. San Bernardino County, 1991, No. RCV059099) and Cimarron Oaks XI v. The Anden Group (Super. Ct. L.A. County, 1991, No. KC004708), or (2) award prejudgment interest pursuant to Civil Code section 3287, subdivision (a). The trial court shall reallocate the loss between the parties in accordance with this opinion. Appellant is entitled to costs on appeal.
Ortega, Acting P. J., and Vogel (Miriam A.), J., concurred.
Notes
More than 40 entities and individuals were named as cross-defendants.
Unigard insured one entity, “Applied, Inc.” Truck, on the other hand, insured “Applied Systems,” “Applied, Inc. dba Applied Systems Waterproofing,” “Applied Water Proofing,” and three individuals (Allan Kalpakoff, Jodie Randles, and June Hozen) doing business as “Applied Systems Waterproofing.”
On the Cimarron Oaks VI project, Anden entered into a subcontract with “Paul Hozen dba Applied Systems” to waterproof the decks. Unigard’s insured, Applied, Inc., was not a party to the subcontract. Nor did Unigard insure the Paul Hozen enterprise.
Although the cross-complaint was against Applied Systems, Cummings & Kemp appeared on behalf of “Applied, Inc., a dissolved California corporation, erroneously sued and served as Applied Systems, and/or Allan Kalpakoff dba Applied Systems Waterproofing, and/or Allan Kalpakoff dba Applied Systems.”
Unigard contacted Truck about coverage for Cimarron Oaks VI and was told the defense of that action was not being tendered to Unigard. This came about as á result of a letter dated April 29, 1993, in which Truck tendered the defense in Meadowwood Village to Unigard. The letter stated that the Meadowwood Village cross-complaint was attached, but it was not. Instead, the cross-complaint in Cimarron Oaks VI was enclosed. By letter dated May 26, 1993, Unigard informed Truck that “[t]here appears to be confusion regarding which case you are actually tendering . . . .” In response, Truck indicated that the Meadowwood Village case was being tendered, not Cimarron Oaks VI. On appeal, neither side attaches any legal significance to this string of events.
Cummings & Kemp appeared on behalf of “Applied, Inc. a dissolved California corporation, previously dba Applied Systems Waterproofing, sued and served erroneously herein as Applied Systems.”
Applied, Inc., Unigard’s insured, performed the waterproofing on the Cimarron Oaks XI project. We do not know how or when Unigard learned this.
The two insurers also contributed equally to a $5,000 payment made under an “additional insured” endorsement. The parties have not discussed the language or scope of that endorsement. (See generally
National Union Fire Ins. Co. v. Nationwide Ins. Co.
(1999)
Truck withdrew upon learning that its insurance policy had expired before Applied, Inc., agreed to work on the Sunset project.
As in Vista del Flores, the settlement in Sunset Townhomes included a sum based on an “additional insured” endorsement. (See fn. 8, ante.)
At the pleading stage, Unigard had filed a cross-complaint against eight insurance companies, including Truck. By the time of trial, Unigard had dismissed all cross-defendants except Truck.
Apparently, the dispute involving Meadowwood Village was resolved before trial.
We discuss allocation of the loss and the award of prejudgment interest in the unpublished portion of the opinion.
The policy defined “suit” to include “a civil proceeding in which damages because of ‘bodily injury,’ ‘property damage,’ ‘personal injury’ or ‘advertising injury’ to which this insurance applies are alleged.” “Occurrence” meant “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.”
There may be exceptions to the prohibition on voluntary payments, as where the insured is unaware of the identity of the insurer, the payment is necessary for reasons beyond the
insured’s control, or the insured faces a situation requiring an immediate response to protect its legal interests.
(Jamestown Builders, supra, 11
Cal.App.4th at p. 348; accord,
Fiorito v. Superior Court
(1990)
Tender can be either formal or constructive. (See
Shell Oil Co. v. National Union Fire Ins. Co.
(1996)
As alleged in Truck’s complaint: (1) Applied Systems was a fictitious business name for Paul and June Hozen, who used the name until they went out of business in early 1986; (2) in May 1986, Allan Kalpakoff began doing business as Applied Systems Waterproofing; (3) in January 1987, Kalpakoff and Jodie Randles formed Applied, Inc.; (4) in February 1987, Kalpakoff and Randles filed a fictitious business statement so that Applied, Inc. could do business as Applied Systems Waterproofing; and (5) in June 1989, Kalpakoff and Randles stopped doing business as Applied Systems Waterproofing and started using Inland Waterproofing and Sheet Metal. Putting the complaint aside, the record does not explain the relationship between the various “Applied” entities.
Although Applied Systems was the named cross-defendant, Truck retained defense counsel who appeared on behalf of “Applied, Inc., a dissolved California corporation, erroneously sued and served as Applied Systems ....’’ (See fn. 4, ante; see also fn. 6, ante.) As far as we can tell, Unigard did not know that Applied, Inc., had been involved in the Cimarron projects.
Truck contends that Unigard insured not only the Applied entities but also their officers. Assuming that to be true, our analysis of the notice issue remains the same. Neither the entities nor the officers tendered the defense of the Cimarron cases to Unigard or gave notice of potential contribution. There is no basis for treating the officers differently than the entities.
In a passing reference, Truck states that Unigard was not prejudiced by any delay in the demand for contribution. But Truck does not present any argument that a showing of prejudice was necessary. As a result, we need not consider -the issue. (See
Interinsuran.ee Exchange v. Collins
(1994)
In
Aydin Corp.
v.
First State Ins. Co.
(1998)
Given the basis for our opinion, we do not address the remainder of Unigard’s arguments, e.g., the statute of limitations barred Truck from recovering some of the defense costs.
See footnote, ante, page 966.