Burden Of Proof Shifts In Equitable Contribution Action.

After a construction defect action settled, one insurer brought an action for equitable contribution against another insurer. The trial court ordered defendant to pay 43 percent of the defense costs and settlement as well as prejudgment interest. The appellate court stated “the burdens and proof are altered somewhat when one insurer with a defense duty does not join in the defense of the underlying action.” It further stated the plaintiff did not have to prove actual coverage, only the potential for coverage. Nor did plaintiff have to establish covered damages in any amount, but merely that the claims in the construction defect suit were potentially covered. Defendant had the burden of proving the absence of actual coverage as an affirmative defense, and it did not meet that burden.  It also forfeited its right to challenge the reasonableness of defense costs and amounts paid in settlement. Accordingly the appellate court found the trial court did not abuse its discretion and affirmed all of its rulings except the award of prejudgment interest. With regard to prejudgment interest, the appellate court said Civil Code §3287, requires damages to be “certain, or capable of being made certain by calculation,” and defendant was not able to compute the damages, so that portion of the judgment was reversed. St. Paul Mercury Insurance Company v. Mountain West Farm Bureau Mutual Insurance Company (Cal. App. Second Dist., Div. 3;  October 25, 2012) 210 Cal.App.4th 645.