On September 22, 2011, an appellate court in California issued a ruling that is troublesome, but instructive. Both the Court and the insurer seriously confused the interrelationship of three compatible provisions in the insurer's Commercial General Liability policy, but in different ways. These are the duty to defend as provided for in the insuring agreement; the application of the deductible to defense expenses, as explained in an endorsement; and the inclusion of defense expenses in the Supplementary Payments provision in the policy.
To carry the metaphor further, apples and oranges are both fruit, and like apples and oranges these policy provisions are related, but distinct. The duty to defend is related to and compatible with, but distinct from the application of a deductible to defense expenses. And defense expenses are supplementary payments.
In Zurich Specialties London, LTD v. Century Surety Company, 2011 Cal. App. Unpub. LEXIS 7192 (Cal. App. 4th Dist. Sept. 22, 2011), Zurich sued Century for equitable contribution for the defense and indemnity it provided to their mutual insured, a sheet metal contractor, in six construction defect lawsuits involving the contractor's work at a number of housing projects in the 1990's.
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