Western Agr. Ins. v. Indus. Indem. Ins.

838 P.2d 1353, 172 Ariz. 592
CourtCourt of Appeals of Arizona
DecidedAugust 25, 1992
Docket1 CA-CV 90-568
StatusPublished
Cited by1 cases

This text of 838 P.2d 1353 (Western Agr. Ins. v. Indus. Indem. Ins.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Western Agr. Ins. v. Indus. Indem. Ins., 838 P.2d 1353, 172 Ariz. 592 (Ark. Ct. App. 1992).

Opinion

172 Ariz. 592 (1992)
838 P.2d 1353

WESTERN AGRICULTURAL INSURANCE COMPANY, an Arizona corporation, Plaintiff-Appellant,
v.
INDUSTRIAL INDEMNITY INSURANCE COMPANY, a California corporation, Defendant-Appellee.

No. 1 CA-CV 90-568.

Court of Appeals of Arizona, Division 1, Department D.

August 25, 1992.

*593 Gallagher & Kennedy by Kevin E. O'Malley, Judith A. Morse and G. Starr Rounds, Phoenix, for plaintiff-appellant.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, P.A. by Larry L. Smith and Michael R. Altaffer, Phoenix, for defendant-appellee.

OPINION

GARBARINO, Judge.

Appellant Western Agriculture Insurance Company ("Western") sued Industrial Indemnity Insurance Company ("Industrial") seeking contribution for the payment of a fire loss to premises leased by Industrial's insured to Western's insured.

Appellant raises three issues for our consideration:

1. Does the doctrine of equitable contribution apply to the facts of this case?

2. Does the "other insurance" provision in Western's or Industrial's policy apply?

3. Does the lease between the insureds reflect an intention to share the risk of a fire loss?

The trial court granted Industrial's motion for summary judgment, ruling that Western was not entitled to contribution from Industrial. For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL HISTORY

The facts in this case are essentially undisputed. J.A. Wood-Vista, Inc. ("Wood") leased a packing shed from Tolleson Industrial Park ("Tolleson"). Wood made improvements to the shed consisting of $120,000 worth of wiring and additional office space to accommodate his use of the premises. The lease provided that Wood was to keep the packing shed in good repair. When the lease terminated, Wood was to return the "premises and facilities" to Tolleson in good condition. The lease provided that Wood would indemnify Tolleson for all claims or loss arising from any accident on the leased premises and notwithstanding any other provision therein, neither would be liable to the other for loss caused by fire. In the event of destruction of the shed or damage to such an extent as to render it unusable, the lease provided that both Wood and Tolleson would be relieved of all further obligations under the lease and the lease would be terminated.

Neither party was expressly required by the lease to obtain fire insurance on the packing shed. However, Wood obtained a *594 fire insurance policy covering the shed and fixtures from Western. Tolleson obtained a fire insurance policy covering the same property from Industrial. Neither insurance policy named the other insured as an additional insured or a loss payee.

On June 28, 1986, fire damaged the shed. Neither Wood nor Tolleson was at fault in causing the fire. Wood submitted a claim to Western in the sum of $159,535.46 for fire damage. Western paid $158,535.46 to Wood and Wood assigned any rights it might have against Industrial to Western. The portion of the claim relating to damage to the structure of the shed was approximately $136,000. After Industrial denied Western's request for contribution, Western filed the instant lawsuit against Industrial.

Both Western and Industrial moved for summary judgment. The trial court granted Industrial's motion and denied Western's cross motion. The trial judge stated in his minute entry that (1) Western had no right of contribution against Industrial because the two insurance policies covered different parties and different insurable interests; (2) because the policies covered separate and distinct interests, the Industrial policy did not constitute "other insurance" triggering the proration clause in either policy; and (3) Western had no claim against Tolleson or Industrial because the lease required Wood to maintain the shed in good repair and provided that the lessee would not hold the lessor liable for damage such as fire damage.

DISCUSSION

A. Western's Right to Equitable Contribution

Western first argues that because the policies issued by Western and Industrial covered the same property against the risk of fire damage, the doctrine of equitable contribution applies and Industrial should equitably share its burden of paying Wood's claim. Western concedes that Industrial's policy did not provide coverage for Wood's interest in the shed as tenant. Western argues that the interest of Industrial's insured, Tolleson, was substantially benefitted by Western's payment to Wood for the purpose of rebuilding the shed and concomitant fixtures because such property would become Tolleson's at the termination of the lease. See Maricopa County v. Novasic, 12 Ariz. App. 551, 473 P.2d 476 (1970) (permanent structures placed by the tenant upon the leased premises and attached to realty are deemed to be real property and belong to the lessor upon termination of the lease.)

Arizona courts have recognized that an insurer who has paid a claim may seek contribution directly from other carriers who are liable for the same loss. St. Paul Fire & Marine Ins. Co. v. Allstate Ins. Co., 25 Ariz. App. 309, 543 P.2d 147 (1976). However, this court has held that a four-part test must be satisfied before one insurer may be required to contribute to another insurer's payment of a claim. Pursuant to this test, the policies must cover (1) the same parties, (2) in the same interest, (3) in the same property, and (4) against the same casualty. Granite State Ins. Co. v. Employers Mut. Ins. Co., 125 Ariz. 275, 278, 609 P.2d 90, 93 (App. 1980); see also Continental Cas. Co. v. Signal Ins. Co., 119 Ariz. 234, 236, 580 P.2d 372, 374 (App. 1978).

In Granite, the court held that the four-part test was satisfied and contribution was appropriate where the two policies in question both covered the same house against losses by fire and the same party was insured under one of the policies as a named insured and under the other as a mortgagee payee. 125 Ariz. at 278, 609 P.2d at 93.

In the instant case, both the Western policy and the Industrial policy covered the packing shed and fixtures against losses by fire. Therefore, the third and fourth requirements of the test enunciated in Granite are satisfied. However, the policies did not cover the same parties or the same interest. Western's policy covered only Wood and Wood's leasehold interest in the shed. The Industrial policy covered only Tolleson and its interest as owner or remainderman with respect to the packing *595 shed. Therefore, neither the same party nor the same interest prong of the test set forth in Granite is satisfied. Therefore, Western is not entitled to contribution from Industrial for the claim it paid to its insured.

Although Western concedes that the two policies insured different parties and different interests, Western argues that courts have found a sufficient mutuality of parties and interest to warrant contribution in the lessor/lessee setting. However, the cases relied on by Western are all distinguishable from the facts in the case at bar. See California Food Service Corp. v.

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