Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
Western World Insurance Company vs Associated Industries Insurance Company Inc et al
Case No: 17CV01727
Hearing Date: Fri May 24, 2019 9:30

Nature of Proceedings: (2) Motions: Summary Adjudication

TENTATIVE RULING: The motion for summary adjudication of Western World Insurance Company on its second cause of action for declaratory relief is granted. The court finds that the coverage afforded by Western World Insurance Company for the claims asserted in the underlying wrongful death action applies in excess of the coverage afforded by Federal Insurance Company. The motion for summary judgment of Federal Insurance Company is denied.

BACKGROUND:

This is an insurance coverage action arising out of a shooting and stabbing rampage on May 23, 2014, in Isla Vista, California, perpetrated by Elliot Rodger, who killed six people and injured fourteen others before committing suicide. Three of Rodger’s victims were killed inside the Capri Apartments located at 6598 Seville Road in Isla Vista. On November 20, 2015, the heirs of the three victims killed inside the Capri Apartment filed a wrongful death action entitled Junan Chen, et al. v. Hi Desert Mobile Home Park, L.P., et al., Santa Barbara Superior Court Case No. 15CV04163. Hi Desert Mobile Home Park, L.P. (“Hi Desert”) and Asset Campus Housing, Inc. (“Asset”), the respective owner and manager of the Capri Apartments, were named as defendants in the action. The heirs alleged that Hi Desert and Asset were negligent in the ownership and management of the apartment complex and that their negligence proximately caused or contributed to the deaths of their family members.

At the time of the murders, Asset was the named insured under a general liability policy issued by plaintiff Western World Insurance Company (“Western”) and an additional insured under a general liability policy issued to Hi Desert by defendant Associated Industries Insurance Company, Inc. (“Associated”). Asset also qualified as an insured under an excess commercial liability policy issued to Hi Desert by defendant Federal Insurance Company (“Federal”). In 2017, Western, Associated, and Federal each contributed a confidential amount to settle the Chen action on behalf of Asset, which resulted in a full release of all claims by the Chen plaintiffs and a dismissal of their complaint. The three insurance companies agreed to participate in the settlement of the wrongful death action subject to their right to litigate in this action the priority of coverage among their policies and to seek recoupment from the other insurers of the consideration paid to settle the Chen matter.

On April 19, 2017, Western initiated the present action against Associated and Federal to determine the priority of coverage among the three insurers, i.e., the order in which their respective policies apply for the defense and indemnification of their mutual insured in the underlying lawsuit. Western’s first amended complaint, filed on April 9, 2018, alleges causes of action for declaratory relief, equitable indemnity, and equitable subrogation. Federal has cross-complained against Western for declaratory relief, while Associated has cross-complained against Western for both declaratory relief and equitable contribution. All three insurers acknowledge providing liability coverage to Asset in the wrongful death action, but disagree as to the order in which their policies have to respond to the loss.

In separate motions, Western and Federal now move for summary judgment/adjudication on their respective insurance claims. In the first motion, Western contends that it is entitled to judgment in its favor and against Federal on the ground that the coverage it afforded to Asset for the claims asserted in the Chen action applies only in excess of the coverage afforded by Associated and Federal. In the second motion, Federal contends that all of Western’s causes of action fail as a matter of law, entitling it to judgment, because the Federal policy was issued on an excess basis only and it has no obligation to respond to the underlying loss until the primary liability coverages issued by Western and Associated are exhausted.

The Western and Federal cross-motions for summary judgment/adjudication were originally scheduled for hearing on March 22, 2019. During oral argument on the motions, Federal cited the case of Deere & Company v. Allstate Insurance Company (2019) 32 Cal.App.5th 499 for the first time and requested a continuance of the hearing to allow time for further argument. The court granted a continuance to April 19, 2019. On April 16, 2019, Federal submitted a copy of the Deere decision via a letter to the court, whereupon the court continued the motions a second time, to May 24, 2019, and requested that the parties submit further briefing on the Deere case. Pursuant to the court’s April 19, 2019 minute order, Federal filed its supplemental brief on April 26, 2019, and Western filed its supplemental brief on May 6, 2019. The court has reviewed the briefs and its decision follows.

ANALYSIS:

1. Western’s Motion for Summary Adjudication

Evidentiary Objections

Federal objected to portions of the declaration of Peter Hubner filed in support of Western’s motion for summary adjudication. “In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” Code Civ. Proc. §437c, subd. (q).

The court did not consider Mr. Hubner’s declaration in deciding the merits of Western’s motion and therefore it declines to rule on the objections.

Motion for Summary Adjudication

Western seeks summary adjudication on its second cause of action for declaratory relief. The right to declaratory relief is governed by Code of Civil Procedure Section 1060, which provides:

“Any person interested under a written instrument . . . or under a contract, or who desires a declaration of his or her rights or duties with respect to another . . . may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties . . . , including a determination of any question of construction or validity arising under the instrument or contract. He or she may ask for a declaration of rights or duties, either alone or with other relief . . . .”

Western alleges that an actual controversy has arisen and now exists between Western and Federal regarding their respective rights and obligations to Asset under their insurance contracts. Specifically, Western contends that its general liability policy applies only in excess of the Federal policy. Federal disputes this and contends that its excess policy only has to respond after the limits of both the Associated and Western policies are paid.

The interpretation and construction of a contract, including an insurance contract, is a question of law for the court to decide. Palmer v. Truck Insurance Exchange (1999) 21 Cal.4th 1109, 1115. “While insurance contracts have special features, they are still contracts to which the ordinary rules of contractual interpretation apply.” Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1264. Under established rules of contract interpretation, the mutual intent of the parties at the time the contract was formed governs interpretation. AIU Insurance Company v. Superior Court (1990) 51 Cal.3d 807, 821. Such intent is to be inferred, if possible, solely from the written provisions of the contract. Id., at 822. If the contractual language is clear and explicit, it governs. Bank of the West v. Superior Court, supra, 2 Cal.4th 1254, 1264. Finally, contracts must be interpreted as a whole, with every part helping to lend meaning to the other parts of the contract. Holz Rubber Company, Inc. v. American Star Insurance Company (1975) 14 Cal.3d 45, 56.

Western provided coverage to Asset as the named insured under a general liability policy subject to a $1,000,000.00 per occurrence limit. (Stipulation, Fact Nos. 6, 7, 12, Ex. 3, p. WWIC 000004.) The policy period was from May 1, 2014 to May 1, 2015, Policy No. BRP0001993. (Ibid.) The Western policy afforded primary coverage with respect to claims arising from the ownership or management of 54 locations specifically identified in the policy. It also afforded coverage on a contingent basis for property that qualified as “Real Estate Property Managed – Contingent,” but this coverage applied only in excess of all other valid and collectible insurance, whether primary or excess. The insuring agreement in the Western policy was contained in an endorsement to the policy entitled “Limitation of Coverage to Designated Premises or Project” (Form CG 21 44 07 98), which read:

“This endorsement modifies insurance provided under the following:

“COMMERCIAL GENERAL LIABILITY PART

* * *

“This insurance applies only to ‘bodily injury,’ ‘property damage,’ ‘personal and advertising injury’ and medical expenses arising out of:

“1. The ownership, maintenance or use of the premises shown in the Schedule and operations necessary or incidental to those premises; or

“2. The project shown in the Schedule.”

(Stipulation, Fact No. 7, Ex. 3, p. WWIC 000049.)

The endorsement schedule identified two distinct types of premises for which the Western policy afforded coverage:

“Those Premises listed on policy form WW10A (10/05) – Schedule of Locations. Those premises which are defined as Real Estate Property Managed – Contingent.”

(Ibid.)

The Schedule of Locations (Form WW10A) listed 54 separate insured locations by description and address. (Stipulation, Fact No. 7, Ex. 3, pp. WWIC 000012-WWIC 000014.) For liability claims against Asset arising from operations at those 54 locations, the Western coverage applied on a primary basis. (Stipulation, Fact No. 7, Ex. 3, p. WWIC 000049.) The Capri Apartments, where the murders occurred, were not listed as a scheduled location on Form WW10A. (Stipulation, Fact No. 7, Ex. 3, pp. WWIC 000012-WWIC 000014.) However, Western acknowledges that its policy afforded coverage for the claims asserted in the Chen action pursuant to the “Real Estate Property Managed – Contingent” endorsement to its policy. That endorsement provided:

“REAL ESTATE PROPERTY MANAGED – CONTINGENT

“This endorsement modifies insurance provided under the following:

“COMMERCIAL GENERAL LIABLITY COVERAGE PART

* * *

“C. The following Paragraph 10. Real Estate Property Managed – Contingent is added to Section IV Conditions:

“10. Real Estate Property Managed – Contingent

“This insurance will not apply to ‘real estate property managed – contingent’ unless the following condition is met:

“Certificates of insurance with limits equal to or greater than:

“Each Occurrence Limit – $1,000,000

“Products-Completed Operations Aggregate Limit – $1,000,000

“Personal and Advertising Injury Limit – $1,000,000

“General Aggregate Limit – $1,000,000 (Other than Products-Completed Operations)

“will be obtained from all owners of ‘real estate property managed – contingent.’

“D. The following definition is added to Section V – Definitions:

“‘Real estate property managed – contingent’ means property of others you operate or manage or as to which you act as agent for the collection of rents or in any other supervisory capacity, and for which there is a written contract with the property owner indicating the owner is responsible for purchasing and maintaining general liability insurance on the property.”

(Stipulation, Fact No. 7, Ex. 3, p. WWIC 000028.)

Thus, while the Capri Apartments were not listed as an insured location on the WW10A Schedule of Locations, Western agrees that the apartment complex fell within the “Real Estate Property Managed – Contingent” provision in its policy. First, the Capri Apartments were the property of others, which Asset managed. (Stipulation, Fact No. 5, Ex. 2.) Second, the written management agreement between Asset and the owner of the Capri Apartments (Hi Desert) required that the owner maintain general liability insurance covering the property. (Stipulation, Fact No. 5, Ex. 2, ¶¶ 6.1-6.1.1.) The management agreement stated:

“6. Insurance

“6.1. Agent Authority to Obtain: Required Policies. Unless already in force, as evidenced by certificates of insurance delivered by Owner to Agent within ten (10) days after the execution hereof, Agent shall have the right with Owner approval to obtain and maintain at the Project, in Owner’s and Agent’s names and at Owner’s expense, the following insurance policies:

“6.1.1. Comprehensive General Liability Insurance in the minimum of $500,000.00 each occurrence and $1,000,000.00 aggregate, as applicable, combined single limit for bodily injury and property damage. Such insurance policy (ies) shall be endorsed with a broad form blanket contractual liability insurance endorsement. Coverage for the indemnification agreement by Owner in favor of agent as herein provided shall be specifically designated on the certificate evidencing the Comprehensive General Liability Insurance.”

(Ibid.)

The Western “Real Estate Property Managed – Contingent” endorsement included an “other insurance” provision which stated that the coverage applied only in excess of all other valid and collectible insurance available to Asset, whether such other insurance was primary or excess. The provision provided:

“B. The following is added to Paragraph 4.b.(1) of Other Insurance of Section IV – Commercial General Liability Conditions:

“4. Other Insurance

“b. Excess Insurance

“With respect to your liability arising out of ‘real estate property managed – contingent’ for which you are acting as real estate manager, this insurance is excess over any other valid and collectible insurance available to you, whether such insurance is primary or excess.”

(Stipulation, Fact No. 7, Ex. 3, p. WWIC 000028.)

Federal contends that the Western “other insurance” provision constitutes an improper “escape clause” under California law and cites Edmondson Property Management v. Kwock (2007) 156 Cal.App.4th 197 and CSE Insurance Group v. Northbrook Property & Casualty Company (1994) 23 Cal.App.4th 1839 in support of its position, but the court disagrees. In Kwock, the court refused to enforce the “other insurance” clause in the defendant insurer’s policy, finding that to do so would allow the insurer to escape liability for a risk it was paid to cover. Id., at 204. In CSE, the court noted that the modern trend in coverage disputes is to disregard “other insurance” clauses in favor of equitable contribution on a pro rata basis from all the insurers if giving effect to the provisions meant that the insured had no coverage. Id., at 1843. In this case, unlike in Kwock and CSE, the “other insurance” clause in the Western policy is not an “escape” clause since the coverage does not simply “evaporate” in the presence of other insurance. Rather, the coverage remains available to the insured for any exposure it faces with respect to “Real Estate Property Managed – Contingent,” though the coverage is excess over other collectible insurance.

Federal insured Asset under a commercial excess policy for the period December 11, 2013 to December 11, 2014, Policy No. 7988-31-25. (Stipulation, Fact No. 9, Ex. 5, p. Federal 0005.) The insuring agreement in the Federal policy provided:

“Coverage/Excess Follow-Form Coverage A

“Subject to all of the terms and conditions applicable to Excess Follow-Form Coverage A, we will pay, on behalf of the insured, that part of loss to which this coverage applies, which exceeds the applicable underlying limits.

“This coverage applies only if the triggering event that must happen during the policy period of the applicable underlying insurance happens during the policy period of this insurance.

“This coverage will follow the terms and conditions of underlying insurance described in the Schedule of Underlying Insurance, unless a term or condition contained in this coverage:

“● differs from any term or condition in the applicable underlying insurance; or

“● is not contained in the applicable underlying insurance.

“With respect to such exceptions described above, the terms and conditions in this coverage will apply . . . .”

(Stipulation, Fact No. 9, Ex. 5, p. Federal 0010.)

The Federal insuring agreement further provided:

“When Excess Follow-Form Coverage A Applies (Drop Down)

“Subject to all of the terms and conditions of this insurance, with respect to Excess Follow-Form Coverage A, if the applicable underlying limits are:

“● reduced by payment of judgments, settlements or related costs or expenses (if such costs or expenses reduce such limits), Excess Follow-Form Coverage A will drop down to apply in excess of the remaining amount of the applicable underlying limits; or

“● exhausted by payment of judgments, settlements or related costs or expenses (if such costs or expenses reduce such limits), Excess Follow-Form Coverage A will apply in the same manner as the applicable underlying insurance would have applied but for such exhaustion.”

(Stipulation, Fact No. 9, Ex. 5, p. Federal 0017.)

The terms “underlying insurance” and “underlying limits” in the Federal policy were defined as follows:

“Underlying Insurance

“Underlying insurance means the coverages for the hazards described in the Schedule of Underling Insurance and the next renewal or replacement insurance thereof.

“Underlying Limits

“Underlying limits means the sum of amounts:

“A. shown for the hazards described in the Schedule of Underlying Insurance, consisting of amounts:

“1. available under the applicable underlying insurance; and

“2. any insured must pay because underlying insurance, as represented by you, is not available, regardless of reason;

“B. available under any applicable antecedent, renewal or replacement of underlying insurance;

“C. of any allocation, deductible, participation, retention or other self-insurance applicable to the insurance described in paragraphs A. and B. above; and

“D. any reinstatement of limits or supplemental or other limits under the insurance described in paragraphs A. and B. above.

“If amounts available under the applicable underlying insurance, described in the Schedule of Underlying Insurance, are greater or less than the amount, shown in such Schedule, then the greater of such amounts shall apply in the computation of underlying limits.”

(Stipulation, Fact No. 9, Ex. 5, p. Federal 0038-0039.)

The Federal policy contained an “other insurance” provision, which stated:

“Other Insurance

“If other valid and collectible insurance is available to the insured for loss we would otherwise cover under this insurance, our obligations are limited as follows:

“This insurance is excess over any other insurance, whether primary, excess, contingent or on any other basis.

“We will have no duty to defend the insured against any suit if any provider of any other insurance has a duty to defend such insured against such suit.

“We will pay only our share of the amount of loss, if any, that exceeds the sum of the total:

“● amount that all other insurance would pay for loss in the absence of this insurance; and

“● of all deductible and self-insured amounts under all other insurance.

“This insurance is not subject to the terms and conditions of any other insurance.”

(Stipulation, Fact No. 9, Ex. 5, p. Federal 0030.)

The terms “other insurance” in the Federal policy was defined as follows:

“Other Insurance “Other insurance means any insurance affording coverage that this insurance would also afford. Other insurance includes any type of self-insurance or other mechanism arranged for funding of loss.

“Other insurance does not include underlying insurance or insurance negotiated specifically to apply in excess of this insurance.”

(Stipulation, Fact No. 9, Ex. 5, p. Federal 0038.)

Primary insurance coverage is insurance that, under the terms of the policy, attaches immediately upon the happening of the occurrence that gives rise to liability. Olympic Insurance Company v. Employers Surplus Lines Insurance Company (1981) 126 Cal.App.3d 593, 597. Excess insurance coverage, on the other hand, is insurance that, under the terms of the policy, attaches only after a predetermined amount of primary insurance coverage has been exhausted. Id., at 598. It is undisputed that Federal afforded excess coverage to the owner of the Capri Apartments (Hi Desert) and to the owner’s property manager (Asset) at the time of the underlying murders. (Stipulation, Fact No. 9, Ex. 5, p. Federal 0005.) Although Federal alleges that Western provided primary coverage to Asset at the time of the murders, the court disagrees. The Western policy provided primary coverage only with respect to claims arising from the ownership or management of the 54 locations listed on schedule WW10A, and the Capri Apartments were not listed on the schedule. (Stipulation, Fact No. 7, Ex. 3, pp. WWIC 000012-WWIC 000014.) However, Western did afford coverage for the underlying loss, on an excess basis, pursuant to the “Real Estate Property Managed – Contingent” endorsement to its policy. (Stipulation, Fact No. 7, Ex. 3, p. WWIC 000028.)

Pursuant to the insuring agreement in the Federal policy, Federal agreed to pay on behalf of the insured “that part of loss to which this coverage applies, which exceeds the applicable underlying limits.” (Stipulation, Fact No. 9, Ex. 5, p. Federal 0010.) The term “underlying limits” was defined in the policy to mean “the sum of amounts . . . shown for the hazards described in the Schedule of Underlying Insurance, consisting of amounts . . . available under the applicable underlying insurance . . . .” (Stipulation, Fact No. 9, Ex. 5, p. Federal 0038-0039.) The term “underlying insurance” was defined in the policy to mean “the coverages for the hazards described in the Schedule of Underling Insurance and the next renewal or replacement insurance thereof.” (Ibid.) Importantly, the Federal “Schedule of Underlying Insurance” identified Associated, but no other carrier, as the insurer affording underlying commercial general liability coverage (Associated Policy No. AES1000211). (Stipulation, Fact No. 9, Ex. 5, p. Federal 0007.) The Associated policy period was from December 11, 2013, to December 11, 2014, same as the Federal policy. (Ibid.)

With respect to the Chen action, Federal argues that its coverage is excess to the Associated coverage and all other coverages available to Asset, including the Western coverage. Although the Western policy does not appear on the Federal Schedule of Underling Insurance, Federal contends that the coverage afforded by Western constitutes “underlying insurance” as defined in the Federal policy. Federal points to the word “hazards” in its definition of “underlying limits” and argues that its coverage is only triggered after all other policy amounts applicable to the commercial general liability “hazard” are paid. However, the court finds that the key language in the Federal definition of “underlying limits” is “amounts shown,” not “hazards,” and the only “amounts shown” on the Federal schedule for the commercial general liability “hazard” is the $1,000,000.00 limit under the Associated policy. (Ibid.) No other amounts are “shown.” Thus, Federal’s assertion that the term “underlying limits” refers to both the amounts shown on the Schedule of Underlying Insurance and any additional amounts not shown is not supported by the policy language.

One of the conditions of coverage under the Federal policy is that the named insured (Hi Desert) was required to maintain both underlying insurance and underlying limits. “We have issued this insurance in reliance upon representation by you about underlying insurance and underlying limits. . . . Failure to comply with this condition will not invalidate this insurance. But in the case of any such failure, our obligation or liability will not exceed that which would have applied absent any failure to comply with this condition.” (Stipulation, Fact No. 9, Ex. 5, p. Federal 0029-0030.) Hi Desert complied with this requirement and at the time of the events in this case it was insured under a $1,000,000.00 general liability policy issued by Associated. (Stipulation, Fact No. 8, Ex. 4, p. AIIC 000007.) Hi Desert, however, was not required to maintain the Western policy, which was issued to Asset and did not cover the property owner. (Stipulation, Fact No. 7, Ex. 3, p. WWIC 000001.)

Federal’s contention that the Western policy constitutes “underlying insurance” is also inconsistent with the term “other insurance” in the Federal policy. The Federal policy defined the term “other insurance” to mean “any insurance affording coverage that this insurance would also afford . . . . Other insurance does not include underlying insurance . . . .” (Stipulation, Fact No. 9, Ex. 5, p. Federal 0038.) Western and Federal have stipulated that each of their policies applied to Asset’s exposure in the Chen action, and thus, the Western policy constitutes “other insurance” as defined by Federal. However, the Western policy cannot be both “underlying insurance” and “other insurance” since the “other insurance” definition in the Federal policy expressly states that it does not include “underlying insurance.”

If Federal intended to make its policy excess over all other applicable insurance, whether that insurance was listed on its Schedule of Underlying Insurance or not, as it alleges, it could have expressly said so. In Community Redevelopment Agency v. Aetna Casualty & Surety Company (1996) 50 Cal.App.4th 329, two liability carriers, United Pacific and State Farm, provided coverage for a general contractor sued in a land subsidence case. After the State Farm coverage was exhausted by settlements, United Pacific asserted that Scottsdale, the carrier that wrote coverage in excess of the State Farm policy, had an obligation to “drop down” and participate in the defense costs. In affirming judgment for Scottsdale, the court held that the Scottsdale coverage did not attach, and no defense obligation arose, until exhaustion of both the scheduled underlying State Farm policy and any other underlying insurance available to the insured. Id., at 334. The language in the Scottsdale policy was clear and unambiguous in providing that the insurance afforded by the policy “shall be excess insurance over any other valid and collectible insurance available to the Insured, whether or not described in the Schedule of Underlying Insurance . . . .” Id., at 335 (italics added).

The court in Carmel Development Company v. RLI Insurance Company (2005) 126 Cal.App.4th 502 reached a similar conclusion. Carmel involved a dispute between two excess insurers over the priority of their policies for a personal injury loss. The excess coverage written by RLI provided that it only applied in excess of scheduled and unscheduled underlying insurance, while the Fireman’s Fund excess coverage provided that it was excess upon exhaustion of a specified underling policy written by Reliance. The court held that RLI was not obligated to contribute to the loss along with Fireman’s Fund. The court stated:

“Here, when all of the relevant provisions are read in context, with each clause lending meaning to the other, it is clear from the language of the RLI agreement that it offers a different level of coverage to its insured than the Fireman’s Fund policy. Accordingly, it is unnecessary to resort to proration based on the competing ‘other insurance’ clauses in the two policies.”

Id., at 514.

The Federal policy, unlike the Scottsdale and RLI policies, contains no such clear and explicit language limiting its coverage. Accordingly, while the Federal policy was written as excess coverage and contains an “other insurance” clause, the court finds that it attaches to the loss in the Chen action immediately upon exhaustion of the $1,000,000.00 limits of “underlying insurance” based on the plain wording of the insuring agreement. “[W]e will pay, on behalf of the insured, that part of loss to which this coverage applies, which exceeds the applicable underlying limits.” (Stipulation, Fact No. 9, Ex. 5, p. Federal 0010.) “Underlying limits” means “the sum of amounts . . . shown for the hazards described in the Schedule of Underlying Insurance.” (Stipulation, Fact No. 9, Ex. 5, p. Federal 0038-0039.) The sole “underlying limits” identified in the Federal Schedule of Underling Insurance were the limits afforded by the Associated policy. (Stipulation, Fact No. 9, Ex. 5, p. Federal 0007.) By contrast, the Western policy, and specifically the coverage afforded by the “Real Estate Property Managed – Contingent” endorsement, attaches only upon exhaustion of all other insurance available to the insured, whether primary or excess.

The recent decision in Deere & Company v. Allstate Insurance Company, supra, 32 Cal.App.5th 499 does not help Federal. In Deere, the court reiterated, in dicta, the general principle that excess insurance coverage does not respond to a loss unless and until all primary coverage has been exhausted. Id., at 516. In this case, as detailed above, the Western policy afforded primary coverage only in limited circumstances not applicable here, i.e., for claims arising from the ownership or management of 54 locations specifically identified in the policy, which did not include the Capri Apartments. (Stipulation, Fact No. 7, Ex. 3, pp. WWIC 000012-WWIC 000014.) For the claims asserted in the Chen action, Western afforded coverage to Asset pursuant to the “Real Estate Property Managed – Contingent” endorsement to its policy, but only in excess of all other valid and collectible insurance available to the insured. (Stipulation, Fact No. 7, Ex. 3, p. WWIC 000028.)

Based on the foregoing, the court will grant Western’s motion for summary adjudication on its second cause of action for declaratory relief. The court finds that the coverage afforded by the Western policy for the claims alleged in the Chen litigation applies in excess of the coverage afforded by the Federal policy.

2. Federal’s Motion for Summary Judgment

In this motion, Federal asserts that Western’s causes of action for declaratory relief, equitable indemnity, and equitable subrogation all fail as a matter of law, entitling Federal to judgment. For the reasons set forth above, Federal’s motion for summary judgment will be denied.