Jason M. Seitz | Butler Weihmuller Katz Craig | April 30, 2018<\/p>\n
Analysis of Zurich Am. Ins. Co. v. S.-Owners Ins. Co., 248 F. Supp. 3d 1268, 1276 (M.D. Fla. 2017)<\/em><\/p>\n In a dispute between two insurers arising from an underlying premises liability action, a federal district court applied Florida law in its analysis of claims for declaratory relief, equitable subrogation, and contribution.<\/p>\n In the underlying action, McMillan asserted negligence claims against Catamount Constructors, Inc. (Catamount) and Duval Concrete Contracting, Inc. (Duval). McMillan alleged he \u201cslipped and fell due to an accumulation of debris as he walked \u2026 towards a port-o-let where Defendant Catamount had begun construction work and established a construction site,\u201d and where \u201cDuval had previously begun concrete cutting.\u201d[1]<\/a><\/p>\n Catamount was the general contractor for a construction project to furnish and install a complete gravel\/sand sub-base package.[2]<\/a>\u00a0Catamount and Duval executed a subcontract, whereby Duval agreed to \u201cfurnish[ ] all labor, materials, tools, equipment, and insurance necessary to\u201d complete the project.[3]<\/a>\u00a0The terms of the subcontract required Duval to maintain liability insurance naming Catamount as an additional insured, and providing primary coverage, for any liability arising from Duval\u2019s work.[4]<\/a><\/p>\n Per the subcontract, Duval purchased a commercial general liability policy from Southern-Owners Insurance Company (SOIC).[5]<\/a>\u00a0Zurich American Insurance Company (ZAIC) issued a commercial insurance policy to Catamount.[6]<\/a><\/p>\n ZAIC initially assumed Catamount\u2019s defense because it \u201cwas not aware at that time that Catamount was a primary insured under the SOIC Policy.\u201d[7]<\/a>\u00a0Pursuant to the subcontract, ZAIC tendered the defense and indemnity of Catamount to Duval and requested that Duval notify its insurer. After ZAIC learned that SOIC had issued a commercial general liability policy to Duval, ZAIC made a second tender to Duval and a first tender to SOIC. SOIC denied the request.<\/p>\n Shortly after receiving\u00a0the SOIC denial, ZAIC filed a complaint for Declaratory Judgment.[8]<\/a>\u00a0After ZAIC \u201cresolved the underlying action on behalf of Catamount\u201d for a confidential amount, it sought leave to drop McMillan as a defendant and file a second amended complaint.[9]<\/a>\u00a0The motion was granted, and ZAIC filed a three-count Second Amended Complaint.<\/p>\n With Count I, ZAIC sought the court\u2019s declaration[10]<\/sup><\/a>\u00a0that SOIC, as Catamount\u2019s primary insurer, had a duty to defend and indemnify Catamount in the underlying action. In Count II, ZAIC sought reimbursement from SOIC for all defense costs and indemnity payments made in resolving the underlying action on a theory of equitable subrogation. With Count III, ZAIC sought full reimbursement on the alternative theory of common law contribution. The court\u2019s analysis of these theories of recovery was prompted by SOIC\u2019s motion to dismiss all three counts under Rule 12(b)(6) of the Federal Rules of Civil Procedure.<\/p>\n<\/div>\n<\/div>\n Count I: Declaratory Relief<\/strong><\/p>\n The party seeking a declaratory judgment bears the burden \u201cof establishing the existence of an actual case or controversy.\u201d[11]<\/a>\u00a0This means that:<\/p>\n [a]t an irreducible minimum, the party who invokes the court\u2019s authority under Article III must show: (1) that they personally have suffered some actual or threatened injury as a result of the alleged conduct of the defendant; (2) that the injury fairly can be traced to the challenged action; and (3) that it is likely to be redressed by a favorable decision.[12]<\/a><\/p>\n \u201cIn addition, the controversy must be \u2018live\u2019 throughout the case; federal jurisdiction is not created by a previously existing dispute.\u201d[13]<\/a>\u00a0Therefore, because the \u201cactual controversy\u201d requirement is jurisdictional, \u201ca threshold question in an action for declaratory relief must be whether a justiciable controversy exists.\u201d[14]<\/a><\/p>\n In the instant matter, the court determined that ZAIC failed to satisfy its burden of establishing its claim for declaratory relief against SOIC constituted an actual case or controversy, appropriate for judicial resolution. Specifically, the court concluded that ZAIC failed to plead the existence of a legal relationship between the parties as well as an ongoing live controversy with respect to its request for declaratory relief.[15]<\/a><\/p>\n Referencing the Eleventh Circuit\u2019s decision in\u00a0Provident Life & Accident Ins. Co.<\/u>, the court concluded an insurer does not have a legal relationship with another insurer by virtue of sharing a common insured.[16]<\/a>\u00a0Therefore, although courts have Article III case or controversy jurisdiction to consider claims between insurers and their insureds, absent some legal basis for an assertion of rights between two insurers, courts lack jurisdiction to adjudicate claims solely between the insurers.[17]<\/a><\/p>\n The court also determined ZAIC\u2019s declaratory judgment claim was deficient because ZAIC failed to assert a live controversy.[18]<\/a>\u00a0\u201cIn the insurance context, once an insurer tenders coverage, any future claims that insurer brings regarding another insurer\u2019s obligations pertain to a past injury.\u201d[19]<\/a>\u00a0As an example, the court referenced\u00a0Interstate Fire & Cas. Co. v. Kluger, Peretz, Kaplan & Berlin, P.L.<\/u>,[20]<\/a>where, after paying its policy limits, an excess insurer sought a declaration that two other insurers should have tendered coverage. That court held that it lacked jurisdiction over the declaratory judgment claim because the plaintiff sought to redress a past injury, which \u201cdoes not support a finding of an Article III case or controversy when the only relief sought is a declaratory judgment.\u201d[21]<\/a>\u00a0As such, the court found Count I was subject to dismissal for lack of subject matter jurisdiction.[22]<\/a><\/p>\n<\/div>\n<\/div>\n Count II: Equitable Subrogation<\/strong><\/p>\n As an initial matter, the court noted an insurer can only recover the amount it paid on behalf of a judgment rendered against its insured, and cannot recover its payments for attorney\u2019s fees and costs.[23]<\/a>\u00a0The court, therefore, concluded ZAIC\u2019s claim of equitable subrogation was subject to dismissal, to the extent it sought recovery of attorney\u2019s fees and costs incurred in the defense of Catamount.[24]<\/a><\/p>\n The court then considered ZAIC\u2019s claim of subrogation for recovery of indemnity payments made on behalf of Catamount and its principals. Under Florida law, equitable subrogation entails \u201cthe substitution of one person in the place of another with reference to a lawful claim or right.\u201d[25]<\/a>\u00a0In the insurance context, the insurer is \u201cput in the position of the insured in order to pursue recovery from third parties legally responsible to the insured for a loss paid by the insurer.\u201d[26]<\/a>\u00a0More specifically, \u201c[t]hrough equitable subrogation, \u2018the excess insurer \u2018stands in the shoes\u2019 of the insured and succeeds to the rights and responsibilities that the insured would normally have against the primary insurer.\u2019 \u201d[27]<\/a><\/p>\n \u201cEquitable subrogation is generally appropriate where: (1) the subrogee made the payment to protect his or her own interest, (2) the subrogee did not act as a volunteer, (3) the subrogee was not primarily liable for the debt, (4) the subrogee paid off the entire debt, and (5) subrogation would not work any injustice to the rights of a third party.\u201d[28]<\/a>\u00a0The Court rejected ZAIC\u2019s attempt to distinguish a decision requiring application of all five elements, noting that several courts have required the plaintiff to plead facts sufficient to give rise to these elements.[29]<\/a>\u00a0Additionally, the court found decisions applying these elements in cases arising specifically in the insurance context.[30]<\/a>\u00a0Therefore, the Court found ZAIC was required to have pled facts supporting these five elements in order to bring an equitable subrogation claim.[31]<\/a><\/p>\n In weighing the sufficiency of ZAIC\u2019s pleadings, however, the court noted its duty to draw all reasonable inferences in favor of the plaintiff on a motion to dismiss.[32]<\/a>\u00a0The court found this duty to be particularly important in light of the Supreme Court of Florida\u2019s substantive \u201ccommitment to a liberal application of the rule of equitable subrogation.\u201d[33]<\/a>\u00a0Indeed, because the purpose of equitable subrogation \u201cis \u2018to do complete and perfect justice between the parties without regard to form or technicality, the remedy will be applied in all cases where demanded by the dictates of equity, a good conscience, and public policy.\u2019 \u201d[34]<\/a>\u00a0Thus, inferring elements not expressly pled, the court found the interests of justice required it to allow ZAIC to proceed with the indemnity payment portion of its equitable subrogation claim.[35]<\/a>Accordingly, the court denied the motion with respect to that portion of Count II.[36]<\/a><\/p>\n<\/div>\n<\/div>\n Count III: Equitable Contribution<\/strong><\/p>\n In support of its motion to dismiss Count III, SOIC asserted that ZAIC\u2019s claim for \u201ccommon law contribution\u201d is not recognized under Florida law, and that contribution is exclusively a statutory remedy that is only available \u201cwhen two or more persons become jointly or severally liable in tort for the same injury to person or property, or for the same wrongful death \u2026.\u201d[37]<\/a>\u00a0Rejecting SOIC\u2019s arguments as inapposite,[38]<\/a>\u00a0the court then considered whether ZAIC sufficiently asserted a claim for equitable contribution.<\/p>\n In order for an insurer to bring this claim, courts in some states require a plaintiff to allege that the insurers \u201cshare (1) the same level of obligation (2) on the same risk (3) to the same insured.\u201d[39]<\/a>\u00a0Under Florida law, however, the court observed a plaintiff is not required \u201cto explicitly demonstrate the existence of these three elements to pursue its contribution claim.\u201d[40]<\/a>\u00a0Rather, \u201cFlorida courts have used much more general language, holding that equitable contribution is available where the parties share a \u2018common burden,\u2019 or \u2018common liability.\u2019 \u201d[41]<\/a>\u00a0In order to find that two insurers share a common obligation:<\/p>\n It is not necessary that the policies provide identical coverage in all respects in order for \u2026 each insurer [to be] entitled to contribution from the other; as long as the particular risk actually involved in the case is covered by both policies, the coverage is duplicate, and contribution will be allowed.[42]<\/a><\/p>\n As an example, the court referenced\u00a0U.S. Fid. & Guar. Co. v. Liberty Surplus Ins. Corp.<\/u>\u00a0In that case, the court allowed Liberty Surplus Insurance Corporation (Liberty) to proceed with its equitable contribution claim against St. Paul Fire & Marine Insurance Company (St. Paul) in a situation much like the instant action.[43]<\/a>\u00a0There, Liberty \u201cissued two commercial general liability policies \u2026 to John T. Callahan & Sons, Inc. (Callahan), which served as the general contractor for a construction project.[44]<\/a>St. Paul issued commercial liability policies to one of Callahan\u2019s subcontractors and covered Callahan as an additional insured for damages arising out of that subcontractor\u2019s work.[45]<\/a>\u00a0The court found that because \u201cboth the St. Paul Policies and the Liberty Policies provide[d] coverage to Callahan for liability arising out of the work of [the subcontractor],\u201d the insurers \u201cshare[d] a common obligation, and Liberty\u2019s contingent equitable contribution claim [wa]s legally proper.\u201d[46]<\/a>\u00a0The court distinguished this scenario from cases in which a primary insurer brought a contribution claim against an excess insurer,[47]<\/a>\u00a0and in which a subcontractor\u2019s insurer brought a contribution claim against a different subcontractor\u2019s insurer, both of whom covered the general contractor as an additional insured, but only for damages arising out of their respective insured\u2019s work.[48]<\/a><\/p>\n Here, as in\u00a0U.S. Fid. & Guar. Co.<\/u>, ZAIC issued a commercial general liability policy to Catamount.[49]<\/a>SOIC issued a commercial general liability policy to Duval, Catamount\u2019s subcontractor, and covered Catamount as an additional insured for damages arising out of Duval\u2019s work.[50]<\/a>\u00a0Thus, ZAIC alleged that SOIC had a duty to provide primary coverage to Catamount for all damages arising out of Duval\u2019s work, and ZAIC had a duty to provide excess coverage to Catamount for these damages.[51]<\/a>Accordingly, the court determined \u201cit appears that both the [SOIC] and [ZAIC] policies [may] provide coverage to [Catamount] for liability arising out of the work of Duval.\u201d[52]<\/a>\u00a0The court, therefore, concluded that ZAIC\u2019s allegations suggested a common obligation sufficient to permit ZAIC\u2019s contingent equitable contribution claim to proceed, and denied the Motion to Dismiss with respect to Count III.<\/p>\n<\/div>\n<\/div>\n IV Conclusion<\/strong><\/p>\n Where an insurer seeks the allocation of indemnity and defense costs among multiple insurers, the lack of an ongoing live controversy and legal relationship between the insurers can preclude declaratory relief. However, equitable subrogation may provide a limited remedy. Under this theory, an insurer can recover the amount it paid on behalf of a judgment rendered against its insured, but cannot recover its payment for attorney\u2019s fees and costs. Notwithstanding the limitation on recovery, the Florida Supreme Court mandates that equitable subrogation will be available in all cases where demanded by the dictates of equity, a good conscience, and public policy.<\/p>\n Under the theory of equitable contribution, an insurer can recover indemnity and defense costs. Florida courts have held that equitable contribution is available where the parties share a \u2018common burden,\u2019 or \u2018common liability.\u2019 \u201d To meet this requirement, it has not been necessary that the policies provide identical coverage in all respects; as long as the particular risk actually involved in the case is covered by both policies, and the coverage is duplicate, then contribution will be allowed. However, because the policies do not cover the same risk, a primary insurer is not permitted to bring a claim for contribution against an excess insurer.<\/p>\n [1]<\/a>\u00a0Zurich Am. Ins. Co. v. S.-Owners Ins. Co.<\/u>, 248 F. Supp. 3d 1268, 1276 (M.D. Fla. 2017).<\/p>\n [2]<\/a>\u00a0Id. at 1274.<\/p>\n [3]<\/a>\u00a0Id. at 1275.<\/p>\n [4]<\/a>\u00a0Id.<\/p>\n [5]<\/a>\u00a0Id.<\/p>\n [6]<\/a>\u00a0Id.<\/p>\n [7]<\/a>\u00a0Id. at 1276.<\/p>\n [8]<\/a>\u00a0Id.<\/p>\n [9]<\/a>\u00a0Id. at 1277.<\/p>\n [10]<\/a>\u00a0Pursuant to 28 U.S.C. \u00a7 2201.<\/p>\n [11]<\/a>\u00a0Cardinal Chem. Co. v. Morton Int\u2019l, Inc.<\/u>, 508 U.S. 83, 95, 113 S.Ct. 1967, 1974, 124 L.Ed.2d 1 (1993).<\/p>\n [12]<\/a>\u00a0U.S. Fire Ins. Co. v. Caulkins Indiantown Citrus Co.<\/u>, 931 F.2d 744, 747 (11th Cir. 1991) (citing<\/em>Valley Forge Christian Coll. v. Ams. United for Separation of Church & State<\/u>, 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982));\u00a0see also<\/em>\u00a0GTE Directories Publ\u2019g Corp. v. Trimen Am., Inc.<\/u>, 67 F.3d 1563, 1567 (11th Cir. 1995).<\/p>\n [13]<\/a>\u00a0Caulkins Indiantown Citrus Co.<\/u>, 931 F.2d at 747.<\/p>\n [14]<\/a>\u00a0Id.<\/p>\n [15]<\/a>\u00a0S.-Owners Ins. Co.<\/u>, 248 F. Supp. 3d at 1281.<\/p>\n [16]<\/a>\u00a0Provident Life & Acc. Ins. Co. v. Transamerica-Occidental Life Ins. Co.<\/u>, 850 F.2d 1489, 1491 (11th Cir. 1988)<\/p>\n [17]<\/a>\u00a0See also<\/em>\u00a0Progressive Express Ins. Co. v. Overdrive Specialized, Inc.<\/u>, No. 3:14-cv-138-MCR\/EMT, 2014 WL 11512202, at *3 (N.D. Fla. Dec. 24, 2014) (finding a definite and substantial controversy in a declaratory judgment action filed by one insurer against another insurer because their common insured had been joined).<\/p>\n [18]<\/a>\u00a0\u201cInjury in the past\u2026 does not support a finding of an Article III case or controversy when the only relief sought is declaratory judgment.\u201d\u00a0Malowney v. Fed. Collection Deposit Grp.<\/u>, 193 F.3d 1342, 1346 (11th Cir. 1999) (citing<\/em>\u00a0City of L.A. v. Lyons<\/u>, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983)).<\/p>\n [19]<\/a>\u00a0S.-Owners Ins. Co.<\/u>, 248 F. Supp. 3d at 1283\u201384.<\/p>\n [20]<\/a>\u00a0855 F.Supp.2d 1376, 1379 (S.D. Fla. 2012).<\/p>\n [21]<\/a>\u00a0Id. (citing<\/em>\u00a0Nat\u2019l Union Fire Ins. Co. of Pittsburgh, Pa v. Int\u2019l Wire Grp.<\/u>, No. 02 Civ. 10338(SAS), 2003 WL 21277114, at *5 (S.D.N.Y. Jun. 2, 2003) (dismissing an excess insurer\u2019s claim for declaratory judgment against a primary insurer because it did \u201cnot seek a prospective determination of its rights and responsibilities under the insurance contract (so that it can avoid future damages), but rather a finding that it is not liable for damages alleged to have already accrued.\u2019 \u201d)).<\/p>\n [22]<\/a>\u00a0S.-Owners Ins. Co.<\/u>, 248 F. Supp. 3d at 1283.<\/p>\n [23]<\/a>\u00a0See<\/em>\u00a0Amerisure Mut. Ins. Co. v. Crum & Forster Specialty Ins. Co.<\/u>, No. 2:12\u2013cv\u2013443\u2013FtM\u201329CM, 2014 WL 3809113, **3\u20134 (M.D. Fla. Aug. 1, 2014) (dismissing an insurer\u2019s equitable contribution claim through which it sought to recover defense costs);\u00a0Am. Cas. Co. of Reading Pa. v. Health Care Indem.<\/u>, 613 F.Supp.2d 1310, 1322\u201323 (M.D. Fla. 2009) (denying an insurer\u2019s request for contribution and subrogation for fees and costs);\u00a0Pa. Lumbermens Mut. Ins. Co. v. Ind. Lumbermens Mut. Ins. Co.<\/u>, 43 So.3d 182, 186\u201387 (Fla. 4th DCA 2010) (collecting Florida cases showing that \u201c \u2018traditional principles of subrogation will not support a reimbursement of defense costs in favor of someone who has the independent contractual duty to pay all such expenses,\u2019 \u201d such as an insurer) (citation omitted).<\/p>\n [24]<\/a>\u00a0S.-Owners Ins. Co.<\/u>, 248 F. Supp. 3d at 1286.<\/p>\n [25]<\/a>\u00a0W. Am. Ins. Co. v. Yellow Cab Co. of Orlando<\/u>, 495 So.2d 204, 207 (Fla. 5th DCA 1986) (quoting<\/em>Boley v. Daniel<\/u>, 72 Fla. 121, 72 So. 644, 645 (1916)).<\/p>\n [26]<\/a>\u00a0Monte de Oca v. State Farm Fire & Cas. Co.<\/u>, 897 So.2d 471, 472 n.2 (Fla. 3d DCA 2004) (quotation and citation omitted).<\/p>\n [27]<\/a>\u00a0Mount Vernon Fire Ins. Co. v. Transcontinental Ins. Co.<\/u>, No. 8:07-cv-1593-T-24-EAJ, 2008 WL 2074427, at *2 (M.D. Fla. May 15, 2008) (citations omitted);\u00a0see also<\/em>\u00a0Galen Health Care, Inc. v. Am. Cas. Co. of Reading<\/u>, 913 F.Supp. 1525, 1531 (M.D. Fla. 1996) (\u201cFlorida law recognizes a cause of action for equitable subrogation between primary and excess insurers arising from the payment of a claim by the excess insurers.\u201d);\u00a0U.S. Fire Ins. Co. v. Morrison Assurance Co.<\/u>, 600 So.2d 1147, 1151 (Fla. 1st DCA 1992) (noting \u201cthat the primary insurer should be held responsible to the excess insurer for improper failure to settle, since the position of the latter is analogous to that of the insured when only one insurer is involved.\u201d).<\/p>\n [28]<\/a>\u00a0Dade Cnty. Sch. Bd. v. Radio Station WQBA<\/u>, 731 So.2d 638, 646 (Fla. 1999).<\/p>\n [29]<\/a>\u00a0See<\/em>\u00a0Amerisure Ins. Co. v. S. Waterproofing<\/u>, No. 3:14-cv-154-J-34JRK, 2014 WL 4682898, at *4 (M.D. Fla. Sept. 19, 2014) (\u201cA plaintiff must allege [the enumerated] five elements in order to maintain a claim for equitable subrogation.\u201d);\u00a0Columbia Bank v. Turbeville<\/u>, 143 So.3d 964, 968 (Fla. 1st DCA 2014) (resolving a motion to dismiss by applying these elements).<\/p>\n [30]<\/a>\u00a0See<\/em>\u00a0Nat\u2019l Union Fire Ins. Co. of Pittsburgh, Pa. v. KPMG Peat Marwick<\/u>, 742 So. 2d 328, 332 (Fla. 3d DCA 1999),\u00a0approved<\/em>, 765 So. 2d 36 (Fla. 2000);\u00a0DaimlerChrysler Ins. Co. v. Arrigo Enters., Inc.<\/u>, 63 So.3d 68, 72 (Fla. 4th DCA 2011).<\/p>\n [31]<\/a>\u00a0S.-Owners Ins. Co.<\/u>, 248 F. Supp. 3d at 1287-88.<\/p>\n [32]<\/a>\u00a0See<\/em>\u00a0Omar ex rel. Cannon v. Lindsey<\/u>, 334 F.3d 1246, 1247 (11th Cir. 2003)<\/p>\n [33]<\/a>\u00a0Dantzler Lumber & Export Co. v. Columbia Cas. Co.<\/u>,115 Fla. 541, 551, 156 So. 116 (Fla. 1934). In determining whether or not to allow an equitable subrogation claim to proceed, the Supreme Court of Florida has emphasized that equitable concerns outweigh \u201ctechnical rules of law.\u201d Id. at 550\u201351, 156 So. 116. According to the court:<\/p>\n [t]he doctrine of subrogation will be applied or not according to the dictates of equity and good conscience, and consideration of public policy, and will be allowed in all cases where the equities of the case demand. It rests upon the maxim that no one shall be enriched by another\u2019s loss, and may be invoked wherever justice demands its application, in opposition to the technical rules of law \u2026 The right to it depends upon the facts and circumstances of each particular case, and to which must be applied the principles of justice. Id.<\/p>\n [34]<\/a>\u00a0Compania Anonima Venezolana De Navegacion v. A. J. Perez Export Co.<\/u>, 303 F.2d 692, 697 (5th Cir. 1962).<\/p>\n [35]<\/a>\u00a0S.-Owners Ins. Co.<\/u>, 248 F. Supp. 3d at 1288.<\/p>\n [36]<\/a>\u00a0Id. at 1289.<\/p>\n [37]<\/a>\u00a0Id.,\u00a0quoting<\/em>\u00a0Fla. Stat. \u00a7 768.31(2)(a).<\/p>\n [38]<\/a>\u00a0S.-Owners Ins. Co.<\/u>, 248 F. Supp. 3d at 1290-1291.<\/p>\n [39]<\/a>\u00a0U.S. Fid. & Guar. Co. v. Liberty Surplus Ins. Corp.<\/u>, No. 6:06\u2013cv\u20131180\u2013Orl\u201331UAM, 2007 WL 3275307, *3 (M.D. Fla. Oct. 31, 2007) (citing<\/em>\u00a0Lexington Ins. Co. v. Allianz Ins.<\/u>\u00a0Co., 177 Fed.Appx. 572, 573 (9th Cir. 2006));\u00a0see also<\/em>\u00a0Hartford Cas. Ins. Co. v. Trinity Universal Ins. Co. of KS.,<\/u>\u00a0158 F.Supp.3d 1183, 1201\u201302 (D. N.M. 2015) (applying the three elements);\u00a0Flintkote Co. v. Gen. Accident Assurance Co. of Can.<\/u>, 480 F.Supp.2d 1167, 1181 (N.D. Cal. 2007) (recognizing the three elements).<\/p>\n [40]<\/a>\u00a0U.S. Fid. & Guar. Co.<\/u>, 2007 WL 3275307 at *3.<\/p>\n [41]<\/a>\u00a0Id. (citation omitted).<\/p>\n [42]<\/a>\u00a015 Couch on Ins. \u00a7 218:6 (Dec. 2016).<\/p>\n [43]<\/a>\u00a02007 WL 3275307 at **3\u20134.<\/p>\n [44]<\/a>\u00a0Id. at *1.<\/p>\n [45]<\/a>\u00a0Id. at **1, 3\u20134.<\/p>\n [46]<\/a>\u00a0Id. at *4.<\/p>\n [47]<\/a>\u00a0See<\/em>\u00a0Transcontinental Ins. Co. v. Ins. Co. of the State of Pa.<\/u>, 148 Cal.App.4th 1296, 56 Cal.Rptr.3d 491 (Cal. App. 2007).<\/p>\n [48]<\/a>\u00a0See<\/em>\u00a0Home Ins. Co. v. Cincinnati Ins. Co.<\/u>, 213 Ill.2d 307, 290 Ill.Dec. 218, 821 N.E.2d 269 (Ill. 2004) and\u00a0Schal Bovis, Inc. v. Cas. Ins. Co.<\/u>, 315 Ill.App.3d 353, 247 Ill.Dec. 847, 732 N.E.2d 1179 (Ill. App. 2000).<\/p>\n [49]<\/a>\u00a0S.-Owners Ins. Co<\/u>., 248 F. Supp. 3d at 1292.<\/p>\n [50]<\/a>\u00a0Id.<\/p>\n [51]<\/a>\u00a0Id.<\/p>\n