*1 Company, Insurance Minnetonka INCORPORATED, CARGILL, Respondent, al., Appellants, et Company,

v. Mutual Insurance Respondent, INSURANCE AMERICAN ACE COMPANY, al., et

Respondents, Insurance, National Northwestern Respondent, Company, FM Insurance Affiliated al., Respondents, et Marine Insurance St. Paul Fire and Insurance Allianz Underwriters al., Respondents, Company, et al., Company, et Respondents, Company, The Orion Insurance al., PLC, Respondents, et Assurance, Allied World al., Defendants, et America, XL Insurance Liability

American Guarantee Inc., Respondent. Company, al., et Insurance Respondents, No. A08-1082. Company, Home Assurance American Appeals Court of of Minnesota. al., Respondents, et May Employers’ Insurance American al., Respondents, Company, et Ltd., Respondent,

Arch Reinsurance International Insurance

Associated Respondent,

Company, Company, Reinsurance

Everest al., Respondents,

et American Assurance

Great Respondent,

Company, Lloyd’s,

Certain Underwriters al., Respondents,

et Casualty Company,

Employers Mutual al., Respondents,

et Security Indemnity Company

General al., Respondents, Arizona, et Indemnity Accident and

Hartford al., Respondents,

Company, et

Pennsylvania Lumbermens al., Company, et

Insurance

Respondents, *2 an affirmative has

cooperate, to ob- opportunity insurer’s preserve the in- from other tain contribution defend, and duty to surers with a similar Mielenhausen, H. Christoper *3 Thomas C. equitable has the a district court Vennum, P.L.L.P., Yetka, Lindquist & an relief when authority to award such MN; Langer, Paul L. and Minneapolis, we answer cooperate, refuses to IL, L.L.P., for Rose, Chicago, Proskauer in the affirmative. certified appellants. Meissner, Cohen, Tierney, Michael J. FACTS WI; S.C., Milwaukee, Nichols, & Fisher of Oklahoma the state Kettering, Theodore J. and Robert W. Inc., Cargill and Cargill, appellants sued Arthur, Newkirk, Smetak, D. Christopher Production, (collectively re Turkey LLC Pikala, and Kettering, Smetak Chapman, damages arising for “Cargill”) ferred to as MN, P.A., respondent Lib- Minneapolis, practices at Cargill’s disposal waste out erty Mutual. state, in or around that poultry operations Amy J. Wood- Spevacek, E. Charles pollu contributed to the allegedly which Geer, P.L.L.P., Minne- worth, Meagher & The of the Illinois River Watershed. tion Fire, MN, St. Paul respondents for apolis, named as a year, Cargill was also same al. et in Arkan in of lawsuits defendant a series in alleging that contaminants found sas LARKIN, by and decided Considered Cargill’s plants produced chicken waste MINGE, Judge; and Presiding Judge; plain harm to several physical had caused STAUBER, Judge. unclear when the tiffs. Because was began, lawsuits first alleged harm these OPINION pending liti Cargill provided notice of STAUBER, Judge. gation to its and umbrella-level several dec liability past P. insurers from the Civ.App. R. Pursuant to Minn. defend, duty to potentially who had a 103.03(i), court certified the ades the district receiving no indemnify, Upon or both. appellate review as following question for tice, respondent Liberty Mutual Insur a court or- important and doubtful: “Can ance, Cargill’s to fund insure the same offered who der customary risks, requested Cargill execute and whose insured for the same receipt agreement1 and neutral loan pur- for defense policies triggered are Mutual to seek equally for the costs allow poses, to be liable non-partici 50 other privi- from the more than there is otherwise no defense where dollar insurers for the multi-million pating Because an ty between the insurers?” defending against insured, litigation part of its contractual as duty-to-defend from other insurers. receipt agreement is a device com- 1. A loan disputes. monly repays the used to resolve insurance The insured then See id. at 163. Jostens, See, e.g., Inc. v. Mission Ins. subsequent in the loan with funds recovered (Minn.1986). Under such receipt agreements an are action. Id. Loan arrangement, an insurer with an they essen- tool for insurers because effective agrees defend to loan the insured the amounts tially to seek contribution from allow insurers necessary against a in ex- to defend lawsuit despite the ab- duty-to-defend insurers other pursue change promise to for the insured's them. sence of name to recover the costs of action its own 50-plus insurers and because contribution might None of lawsuits. agree responsibility sought policies” to assume be “fronted would ability incorporated sophisticated without the to seek into its defense costs insur- insurers. ance scheme. It appears contribution from other from the record policies some of these fronted amount- February Cargill sought a On ed to self insurance Cargill, while the relief declaratory judgment by Cargill’s others were issued subsidiar- against allegedly 50 insurers who had over ies. indemnify Car- Thereafter, gill in the lawsuits. asked the dis- partial moved for summary trict declare that each insurer had judgment court to as to Mutual’s *4 duty motion, and indemni- duty part an individual to defend to defend. As of its fy. Liberty Cargill argued Mutual filed cross claims that it could Liberty select against seeking fully several insurers a declara- Mutual to exclusively and -defend right subroga- against that it have a underlying litigation, tion would that it in the tion or contribution from them event had no to enter into a loan -Mutual, Liberty solely receipt agreement Liberty that Mutual incurred de- with that, Cargill. The dis- and agreement, fense costs on behalf absent such an Lib- with proceedings, erty right trict court bifurcated the Mutual had no to seek contribu- phase relating solely duty any the first to’ the tion from other insurer a who has defense.obligation. Liberty Mutual a defend.2 filed partial summary for judg- cross-motion Mutual Liberty On October ment seeking creating order construc- primary again several other noti- receipt, agreement tive loan or a similar that, Cargill subject respec- to their fied Liberty declaration that pur- Mutual could .rights, they tive reservations of would be sue from other insurers with- willing receipt to enter into a neutral loan agreement. out a loan Cargill. Under the terms agreement, summary judgment of the the insurers Prior to proposed hear- .the Cargill equal ing, an amount Cargill proposed would loan new “framework” litigation underlying possible receipt agreement. defense costs for loan Cargill grant Cargill’s proposal permitted on the condition that would would have repayment Liberty pursue the insurers the to seek Mutual to contribution for any of the loan from other insur- defense costs from certain insur- ers, providers duty precluded recovery ance with a to defend. but of defense Liberty Cargill, Mutual also tendered a check for costs from its insurance subsidiar- $704,762.22 ies, partial payment policies. as or the issuers of its fronted costs, Cargill on contingent sign- proposal required The also would have agreement.3 ing Liberty indemnify Cargill declined the Mutual to pri- offer out of concern that it could become the contribution demands of rejected responsible pay- mary Liberty for additional deductible insurers.' Mutual contributing ments and retentions to the the offer. postpone $5.4 3. that at least The district chose consid- Mutual asserts duty indemnify eration of the until the million in defense costs had been incurred phase second because "the of indemnifi- of 2007. as underlying cation not arise until the law- (unless suits are concluded earlier settlements negotiated), be-years are and that could down the road.” sample agreement appropriate pro- subsequently denied

The district noteworthy It visions to its order. is granted partial sum- Cargill’s motion Cargill or the court did not decide whether favor of Mutual. mary judgment in arrangements its fronted insurance would that no acknowledged Although the court in the of defense be included allocation exists between privity of contract costs, of the case law relat- stating “[s]ome with a similar other insurers Mutual and costs treats ing to allocation defend, that it it concluded would and self-in- captive company reinsurance require inequitable be lia- differently surance than it treats mere multi-million dollar cost of to assume the bility for a deductible.” any right to con- defending Cargill without appeal The court certified for the issue tribution, stating following the mem- pri- can “order of whether a district court order: accompanying orandum in- mary who insure the same Cargill, sophisti point The here is risks, poli- and whose sured for same entity, has created this cated business triggered purposes, are for defense cies structure, inequi seems equally be liable for the costs of defense they permitted should now be table there otherwise no be- where *5 Liberty Mutu cooperating to avoid the insurers.” The court tween concluded (the they al insurer who have self-chosen “important that the was because claims) liability to defend their underlying but it relates to substantial re- of their concern that the insurance litigation likely persist lated which is to for they may created structure that have ... years very expensive and to be is [and] consequences go have some adverse' ques- The impact.” issue of state-wide they the- benefits have re along with tion was also declared doubtful “because ceived. appear there to be unresolved conflicts decisions, appellate the Minnesota posited that refus- The court also than occasion which on more one have cooperate al to Mutual’s re- indicated each is different and case receipt agreement consti- quest for a loan n specific must be on its facts.” resolved policy obligations of its tuted violation Liberty Mutual. ISSUE court determined that Accordingly, the When an insured maintains numerous equitable the most result would be to allow policies arrange- and insurance equitable apportionment for an of defense ments and the insured demands that one insurers among costs the numerous be- all primary pay insurer defense costs and “encourag[e] ... cause would insurers refuses to with that insurer to promptly undertake the insured’s defense contribution, preserve a full does a [they] beginning ... if from the know authority court have the district fashion apportioned equally defense costs will be remedy primary that will allow the insur- among policies those whose are insurers claim contribution preserve er its for In triggered.” order facilitate the shar- defense costs? costs, ing of defense the court ruled Liberty Mutual was allowed to seek contri- ANALYSIS primary bution from other liable Civ.App. Minn. R. P. 103.03© necessity a loan receipt without that an appeal be taken to provides alternative, In the agreement. this court from order that denies a impose it could indicated that construc- summary judgment motion for if the dis agreement, question pre- tive loan trict court that the attached “certifies

63 In with a and doubtful.” de- insurer important sented question arising from a certified ciding normally must enter into a loan receipt judgment, this court summary denial of -order to obtain contribution wheth- the record to determine “review[s] primary duty-to-defend from other insu fact exists issue of material a.genuine er Cargill argues rers. that this issue is con correctly ap- the law was whether supreme trolled ruling court’s Sys., v. Allina Health 668 plied.” Murphy seminal case of Iowa Nat’l Mut. Ins. v.Co. 17, review de- (Minn.App.2003), N.W.2d Universal Underwriters Ins. 2003). (Minn. 18, genu- Nov. Absent nied (1967). Minn. 150 N.W.2d 233 We fact, appellate of material courts ine issues National, agree. Iowa questions de novo. Em- review certified court concluded that an insurer who un A.C.C.T., Inc., v. ployers Mut. Cas. Co. of an gener dertakes the defense (Minn.1998). Here, de ally pursue cannot contribution for defense appropriate because the novo review is costs from another with a parallel insurer dispute. not in material facts are to defend because no of con challenges the district court’s joint liability tract or exists between the preservation apportionment 367-68, insurers. Id. at 150 N.W.2d at claiming all (“The controversy 236-37 between the two many individual it can select one of insurance carriers who have no contractual because each insurers to tender separate and distinct obli- relationship operate insurer owes to each other cannot pay the defense costs without gation to to alter the that each owes unto similarly obligated from other insured, they with whom each have a *6 that, argues also absent insurers. contract.”). Nor can reimbursement be receipt agreement, privity a loan no of principles subrogation based on of since among contract exists the insurers that “separate each insurer has a and distinct” Liberty would allow Mutual to seek contri- obligation to that allows in the Conversely, Liberty con- bution. Mutual upon sured to “call either or both carriers receipt agreement only that a loan tends policy obligations.” to fulfill at their Id. necessary in where an insurer situations principles 150 N.W.2d at 237. These actually Liberty a has tendered defense. privity contract apply here because no that argues principles good Mutual also Liberty exists between Mutual and the dealing, coop- faith fair as well as the primary other insurers. Liberty eration clause contained the policy, require Cargill Mutual holding Mutual claims that the enabling in Iowa National is limited to situations preserve opportunity the to obtain contri- where an insurer seeks contribution after further bution from other insurers and support a In of its tendering defense. Cargill to into a neutral obligates enter Jostens, Liberty Mutual cites argument, Mutu- receipt loan Co., Inc. v. Mission Ins. 387 N.W.2d exchange al in for its tender of defense. (Minn.1986). Jostens, supreme the that, pre- although 1. court concluded an insurer receipt agreement Is a loan necessary equally ap- sumptively pass to defend cannot on who “undertakes portion costs the in- carriers,” expenses to the other defense surers? a de primary no insurer undertakes when insured, an a district court fense of in an The first issue consider equally apportion liability a for defense costs swering the certified is whether ... insurers. Id. at 166— his costs from either or both insurers’ primary among the ’ only that them are insur- However, ‘as between facts here are distin the liable such costs.” Id. equally ers because in that guishable from Jostens 167). Jostens, The (quoting 387 N.W.2d had entered into loan case the insured court then observed that the insurer’s one of its receipt agreement with “remedy, any, if is to seek contribution avoiding the issue that thereby Id. [the insurer].” from the for the Iowa National formed basis 163-64; holding. Id. at see also Home from does not language This Domtar Co., v. Natl. Fire Ins. Pitts Ins. Union support the conclusion that an insurer is (Minn.2003) burgh, 658 N.W.2d entitled to contribution the absence of in that (distinguishing receipt agreement. Iowa National from Jos- loan The issue could case was not whether insurer on the basis that Jostens involved a tens insurer, from another seek contribution in receipt agreement). loan Unlike the limit whether an insurer could its de- but Jostens, sign sured in refuses to obligations fense on the basis agreement. neutral loan paral- that another insurer had upon Mutual also relies Wood provide lel contractual a defense. Builders, Co., Maryland dale Inc. v. Cas. Thus, in declining grant See id. the (Minn.2006), Domtar, 722 N.W.2d 283 relief, the court in insurer Domtar was Niagara Inc. v. Fire Ins. 563 N.W.2d merely applying from holding the Iowa (Minn.1997). Builders, In Wooddale separate that National each insurer has a applied the rationale of and distinct to defend an in- apportion liability for Jostens to noteworthy sured. We also find it among five had equally insurers who stopped stating short of despite to defend an insured insurer could seek contribution from the receipt agreement. absence of a loan See (stating other insurer. See id. 722 N.W.2d at 301-04. But Wooddale ” remedy insurer’s is to seek con- “if resolving Builders is of limited value to (emphasis tribution the other insurer this issue because the insurers in that case added)). had waived Iowa National rule and whole, *7 As a our review of the relevant already several had tendered a defense to precedent case convinces us that Iowa Na at n. the insured. Id. 302 150 tional controls this issue. Due to the lack N.W.2d 233. of contractual between Mu Domtar, Finally, in an insurer who re- tual in co-primary duty-to-defend and its fused to defend its insured and had not surers, Liberty Mutual has no agree- been able to obtain a loan receipt in the absence of a loan re challenged ment the district court’s deci- Nat’l, ceipt agreement. 276 See Iowa sion to hold it liable en- for insured’s 367-68, at at Minn. 150 N.W.2d 236-37. despite tire defense costs the fact that the a duty 2. Can insurer with sought payment also an-

insured had condition its tender de- duty-to-defend insurer who had not of on the insured’s execution fense participated in the lawsuit.4 563 N.W.2d receipt agreement? neutral loan decision, affirming at the su- preme quoted propo- court Jostens Relying principle on the that each ‘may separate duty sition that “an ... recover insurer owes and distinct dispute disputing per- 4. The insured’s with the the other insurer was other insurer jurisdiction. over defense costs was not before the court sonal 563 N.W.2d 728 n. 1. no when over 50 other defend, that it is under insurers have insured Cargill claims receipt Cargill against incompa enter into a loan the same risks is obligation to Cargill Mutual. underlying with tible with the rationale of Jos- noted, courts have no argues that Minnesota As the also tens.5 Jostens “[w]ho a constructive loan authority impose pay should the insured’s defense costs disagree with both receipt agreement. We depend caprice should not on the whim or insured, when, assertions. of the at the time the de needed, fense was ar [numerous] insurers separate has a Although each insurer duty had a guably to defend.” Id. defend, obligation to in situa and distinct this, multiple primary where tions such as Requiring Cargill to enter into a neutral offered to tender defense insurers have receipt agreement comports loan also agreement, exchange receipt in for a loan cooperation the terms of the con clause principles good that faith we believe in the tained dealing impose an affirmative ob and fair policy. requires Cargill The clause to as by en cooperate on the insured to ligation “enforcing any right sist Mutual in agree tering into a neutral loan indemnity of contribution or against liability equitably apportions ment person organization who be liable Minn.Stat. insurers. See Therefore, [Cargill].” has a con (2008) “[e]very (stating § 336.1-304 obligation tractual with Liber Com contract or within the Uniform ty By declining Mutual as its insurer. imposes obligation mercial Code receipt agreement execute neutral loan in good performance faith and enforce customarily industry used the insurance ment”); Hennepin County 1986 Re In re impose upon order to one insurer the Litig., 540 N.W.2d cycling Bond liability for the entire multi-million dollar (Minn.1995) (providing “every con costs, has acted bad implied good covenant of tract includes Advisors, Sterling Capital faith. Inc. v. dealing”). ruling faith and fair Our Herzog, (Minn.App. 575 N.W.2d holding in based on the court’s 1998) (stating that bad faith occurs when a equally apportion In deciding Jostens. refuses to fulfill some or con party insurers who had re tractual based on an ulterior defense, fused to tender a Jostens motive, regarding not an honest mistake that a court repeatedly emphasized duties). rights or The basis for Car- one’s it was for must “look at the situation as gill’s refusal was to avoid contribution for confronted at the time was [the insured] policies.” defense costs from its “fronted underlying [the lawsuit].” *8 decision Our N.W.2d at 167. from this stand “Viewed as supported by policy reasons as well point, hardly it seems fair [that precedent. for the the court stat- responsible [As should now be Mutual] [,] allowing ... an simply [Cargill] ed] entire costs because has Jostens recovery to of defense costs [Liberty [the selected rather than seek Mutual] insurer, making equally but insurers duty-to-defend pay to insurers] themselves, encourage among liable Allowing Cargill strategical them.” Id. will defense, when tendered a ly one insurer to bear the entire the select promptly the to defend burden of defense to resolve multi-million dollar position despite noteworthy many Liberty Mutual's their own We find it of also portion supported potential liability a of these costs. Cargill’s primary have insurers 66 LARKIN, by cooperative Judge (dissenting). either some ar-

issue them, by or a de- rangement between I respectfully Every dissent. insurer action, claratory judgment by or some an independent duty owes its insured other means. defend, provides and an insurer that a Builders, Wooddale 722 N.W.2d at 303 defense is not entitled to recover its costs omitted). preserving (quotation Without provide from the insurers that did not opportunity equitable to recover Builders, Inc. defense. Wooddale v. Ma in- apportionment among of defense costs Co., ryland Cas. N.W.2d defense, yet surers who have to tender a (Minn.2006) (citing Iowa Nat’l Mut. Ins. mercy insurers be at of the would Co. v. Universal Underwriters Ins. unilaterally insured who could select an 362, 367-68, 276 Minn. 150 N.W.2d to defend. insurer insurers Such (1967)). 236-37 a loan-receipt Absent policy undoubtedly would cause insurers to agreement, an insurer that undertakes the adopt approach the “wait and see” may defense of its insured not seek recov Jostens, hoped Jostens to avoid. See ery of defense costs from other insurers Therefore, protecting at 167. provide that failed to a defense. Id. rights through of an insurer a court-or- Due to the lack of contractual privity receipt agreement dered loan is also bene- Mutual and oth ficial to the insured because eliminates insurers, Liberty er Mutual has no delay an insurer’s incentive to or refuse to contribution in the absence of a loan-re undertake defense. Nat’l, ceipt agreement. See Iowa Accordingly, if an insured in bad 366-68, Minn. at 150 N.W.2d at 236-37. A faith refuses to enter into a neutral loan conclusion that principles equity agreement,. we conclude that fundamental obligate Cargill fairness courts, asked, timely Minnesota when loan-receipt agreement enter into a protect by imposing an insurer a construc Liberty Mutual receipt obligation. tive loan On this rec offered to defend is inconsistent ord, necessary such court action is to en with the Iowa National holding, which Cargills duty force and its specifically rejected an argument eq good faith and dealing fair justify uitable concerns allowing order commercial preserve transactions so as to an insurer that defends its insured to re opportunity Mutuals to obtain an cover its costs from other insurers. Id. at ultimately equitable apportionment of de 365-69, (considering 150 N.W.2d at 235-37 fense costs a defending whether insurer should be al defend. lowed to recover its defense costs from equitable another insurer based on an DECISION principle arising out of by a circumstance authority The district court has the non-defending which the insurer was said impose receipt agree- constructive loan unjustly by to have been enriched reason ment that allows a insurer with a expenses defending incurred duty to opportunity *9 insurer). obtain equitable apportionment of defense all with a insurers In Iowa supreme National the duty to defend. concluded that a equities the de- fending non-defending Certified insurer and insurer answered in the af- reasoning were “at best firmative. equal,” the

67 in by defending insur ment that case. 387 at 164-65. incurred the N.W.2d expenses to incur expenses agreed that it er are an error-correcting were We court. Sefkow to its contract with its insured. pursuant (Minn. 203, 427 Sefkow, v. N.W.2d 210 368-69, 150 at 237. The at N.W.2d Id. 1988). task of extending existing “[T]he defending court noted that supreme supreme falls to the or the legis law in premiums received from its insurer lature, but it does not fall to this court.” exchange to sured for its Palmer, 283, Tereault v. 286 413 N.W.2d of ex insuring the risk these assume (Minn. (Minn.App.1987), review denied stating, charges are not in penses, “These 1987). 18, Moreover, Dec. we are not a payment a a debt for the nature of of court. policy-setting Sefkow, 427 N.W.2d They primarily another was liable. which (“The ap at 210 function of the court of defending expense of insurer’s] are [the peals is limited to identifying errors and 369, 150 Id. at doing at N.W.2d business.” them.”). correcting then And we have Jostens, 237-38; see Inc. v. Mission Ins. previously argu stated that public policy (Minn.1986) Co., 161, 166 387 N.W.2d ments, “while appealing, cannot overcome rejected that Iowa (recognizing National preference express Minnesota’s that each argument equity compelled shared independent duty insurer fulfill its to cover liability among who were not a mutual insured.” L. Andrew stating, assuming “the insurer privity Co., Inc. v. Youngquist, Cincinnati Ins. complain has no cause to (re 178, (Minn.App.2001) 625 N.W.2d 187 its is protecting it is own interests and argument jecting public policy agreed paid what it and was only doing prof mandates that one insurer should not ”) added). do premium (emphasis wrongful it from its while failure to defend Thus, not liabil equity compel does shared punished performing another insurer is multiple ity among insurers with Nat’l, 368, obligation). its Iowa 276 Minn. at 150 defend. obligation at is (stating, N.W.2d 237 “The Cargill has a to a de contractual and the carrier is not entitled several irrespective from Mutual fense duty nor require divide the Nat’l, other insurance. Iowa Minn. specific another absent a contractual 367, 236-37; 150 N.W.2d at also Nord see right.”). v. Atlantic Mut. by Ins. Likewise, equity compel does not (Minn.1983) (stating, insur “Each in an ef imposition of contractual obligation separate and er’s defend is Cady liability. fort to achieve shared See coverage provide distinct from its Bush, 283 Minn. 166 N.W.2d v. pay judgment, irrespective of other (1969) (stating, kept “it must be irrespective insurance and of whether unjust principle mind that the enrich coverage”). provides excess merely not be be ment should invoked analysis, merely asking the final is party bargain” cause a has made a bad provide Mutual to it with a de interfering are not warranted in “[c]ourts fense, was agreed as rights parties with the contract as evi is in no paid premium to do. This result their writings purport

denced which simply unfair. way harsh or The result agreement”). their full And it is express parties sophisticated what both of these purview not within the of this court for. desire to bargained Mutual’s holding in Jos- extend court’s can tens, contribution from other insurers giv seek factually distinguishable which is alter to its loan-receipt agree operate the existence of not en *10 Nat’l, (2) 367-68, 276 Minn. privity insured. Iowa at between the we are N.W.2d 237. policy-setting not a and is not the law, existing role of this court to extend posited Cargill’s The district court (3) and the district may impose not Liberty refusal to with Mutual’s terms, extra-contractual I would adhere to request loan-receipt agreement for a con holding Liberty Iowa National. policy obligations stituted violation of its Mutual Cargill entered into a contrac- Liberty Mutual. But the district court agreement, whereby Liberty tual stopped holding Cargill short was to undertake a defense of contractually obligated to execute a loan- for which Liberty premi- Mutual received receipt agreement under the terms of the payments. um inappropriate It is for the Liberty Mutual policy. The ma impose district court a loan-receipt jority policy language regarding cites Car- parties’ when the contract does gill’s obligation Liberty to assist Mutual in require not one. Absent agree- such an “enforcing right of contribution or in ment, Liberty Mutual is not entitled to demnity against any person organiza Accordingly, contribution. I would answer [Cargill].” Rely tion who be liable to the certified ing negative. on language, majority opinion this concludes that has a contractual

obligation to cooperate Mutu equates

al as its insurer cooperation a loan-receipt agreement. execution of

This conclusion is flawed because it pre

sumes that right Mutual has a

contribution. Mutual has no given the lack of contractu Minnesota, Respondent, STATE of al Mutual and Nat’l, other insurers. See Iowa v. 366-68, 276 Minn. at 150 N.W.2d at 236- CRANE, Appellant. Kenneth William 37. No. A08-0377. The policy language does not obligate Cargill to execute a loan-receipt agree Appeals Court of of Minnesota. ment. And it is improper for courts to requirement insert such a policy. into the June law cannot finish parties “[T]he what the

have thereby left unfinished and create a they

contract where intentionally omitted

to make one for themselves.” Druar v.

Ellerbe & 222 Minn. (1946); see also St. Paul

Fire & Marine Ins. v. Ruddy, Co. 299 F. (8th Cir.1924) (“It

189, 196 is not within province of the courts to create con

tracts.”). (1) equity

Because does compel not liability

shared among multiple insurers

with a to defend absent contractual