Primary vs. Excess Coverage Dispute.

Both plaintiff and defendant are insurance companies. A trucker, who owned his own truck entered into an agreement with a transportation company to deliver loads in two states. The agreement provided the trucker was an independent contractor, and the trucker agreed to maintain liability insurance and to name the transportation company as an additional insured. The trucker purchased a trucker’s liability policy from plaintiff that covered his truck as well as any attached trailer. The trucking company purchased a commercial assigned risk policy from defendant; the named insured on defendant’s policy was “1 Trucker for Hire-Excess.” Both policies were in effect when the trucker was hauling goods for the transportation company and was involved in a collision resulting in the death of a woman. Plaintiff handled the defense of both the trucker and the transportation company for two years, but then reversed course and demanded indemnity from defendant pursuant to Insurance Code section 11580.9. Plaintiff settled the underlying case, but reserved its right to seek reimbursement from defendant. The trial court granted defendant’s motion for summary judgment in plaintiff’s declaratory relief action, after concluding plaintiff was the primary insurance carrier, and that the two were not co-primary insurers. In affirming, the appellate court quoted from subdivision (d) of section 11580.9, “Where two or more policies . . .  it shall be conclusively presumed that the insurance afforded by that policy in which the vehicle is described. . . shall be primary and the insurance afforded by any other policy. . . shall be excess.” (Scottsdale Indemnity Company v. National Continental Insurance Company (Cal. App. Third Dist.; September 17, 2014) 229 Cal.App.4th 1166, [177 Cal.Rptr.3d 648].)