United Financial Casualty Co. v. United Specialty Ins. Co. CA3

Filed 10/28/26 United Financial Casualty Co. v. United Specialty Ins. Co. CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin) UNITED FINANCIAL CASUALTY COMPANY, C104118 Plaintiff and Appellant, (Super. Ct. No. STK-CV-UIC- v. 2022-0001274) UNITED SPECIALTY INSURANCE COMPANY, Defendant and Respondent. This case involves a dispute between two insurance companies over the payment of costs incurred to defend Gary Transport and FedEx Ground Package System, Inc. (FedEx) in a wrongful death lawsuit arising out of a motor vehicle accident. The trial court ruled that both insurers had a duty to defend, and it applied the doctrine of equitable contribution to allocate defense costs between them in proportion to their respective policy limits. Plaintiff United Financial Casualty Company (Plaintiff) appeals, arguing that, pursuant to Insurance Code section 11580.9, subdivision (d), 1 defendant United Specialty Insurance Company (Defendant) is conclusively presumed to be the primary insurer and is thus liable for all defense costs, and the trial court erred in finding section 11580.9, subdivision (d) was inapplicable. We agree, and thus reverse. 1 Undesignated statutory references are to the Insurance Code. 1  FACTUAL AND PROCEDURAL BACKGROUND The Accident and the Wrongful Death Lawsuit In late 2020, Paramveer Singh was driving a truck hauling a trailer containing FedEx packages on a highway in New Mexico. The truck collided with several vehicles in front of it, resulting in the deaths of two individuals. The survivors of the individuals killed in the accident filed a wrongful death lawsuit in New Mexico state court against Singh, WMK Logistics, LLC (WMK), FedEx, Gary Transport, and others. According to the allegations in the lawsuit, FedEx contracted with Gary Transport to transport the cargo at issue; Gary Transport subcontracted with WMK to transport the cargo; and WMK hired Singh to drive the cargo. As to FedEx and Gary Transport, the lawsuit alleged they were negligent in failing to properly vet, select, train, and supervise WMK and Singh. We will refer to these as the direct negligence allegations. The lawsuit also alleged FedEx and Gary Transport were the “statutory or effective employer[s]” of WMK and Singh and “directed and controlled” their acts, and that FedEx, Gary Transport, WMK, and Singh were involved in a joint enterprise, a joint venture, or a civil conspiracy such that they were jointly and severally liable for the others’ conduct. We will refer to these as the vicarious liability allegations (i.e., because they seek to hold FedEx and Gary Transport vicariously liable for the conduct of WMK and Singh rather than for their own conduct). The Policy Issued by Plaintiff to Gary Transport Plaintiff issued a commercial auto insurance policy to Gary Transport 2 with a $2 million policy limit. The policy named FedEx Ground as an additional insured. The policy provided, “we will pay damages … for bodily injury … for which the insured 2 The policy was issued to Lakhwinder Singh doing business as Gary Transport. Like the parties, we will refer to the policyholder as Gary Transport, in order to distinguish Lakhwinder Singh from Paramveer Singh (i.e., the driver of the truck at the time of the accident). 2 becomes legally responsible because of an accident arising out of the ownership, maintenance or use of [an] insured auto,” and “[w]e will settle or defend, at our option, any claim or lawsuit for damages covered by this Part.” Although the policy does not specifically identify or describe the truck involved in the accident as an “insured auto,” an endorsement to the policy provided an “insured auto” includes “any auto while used in your business.” Plaintiff defended Gary Transport and FedEx in the wrongful death lawsuit pursuant to this policy. 3 The Policy Issued by Defendant to WMK Defendant issued a commercial auto insurance policy to WMK with a $1 million policy limit. It provided, “We will pay all sums an ‘insured’ legally must pay as damages because of ‘bodily injury’ … to which the insurance applies, caused by an ‘accident’ and resulting from the ownership, maintenance or use of a covered ‘auto,’ ” and, “We will have the right and duty to defend any ‘insured’ against a ‘suit’ asking for such damages.” The policy specifically described the truck involved in the accident as a covered auto. It defined “Insured” as: (1) “You for any covered ‘auto’ ”; (2) “Anyone else while using with your permission a covered ‘auto’ ”; and (3) “Anyone liable for the conduct of an ‘insured’ described above but only to the extent of that liability.” As will be discussed in more detail below, this third provision is known as an “omnibus” provision, and the omnibus provision extends insured status to anyone who is vicariously liable for the conduct of WMK and Singh. The dispute in this case centers on whether, and to what extent, the omnibus provision imposed a duty on Defendant to defend Gary Transport and 3 Defendant states Plaintiff initially refused to defend FedEx, and FedEx filed a cross-claim against Plaintiff in the wrongful death lawsuit alleging bad faith failure to defend and seeking a judicial declaration that Plaintiff had a duty to defend it. It appears FedEx settled its claims against Plaintiff and Plaintiff ultimately agreed to defend it. The timing of Plaintiff’s provision of a defense to FedEx does not appear relevant to this appeal. 3 FedEx. The Present Complaint for Declaratory Relief and Damages Plaintiff demanded that Defendant defend Gary Transport and FedEx in the wrongful death lawsuit, but it refused to do so. Plaintiff then filed the present complaint against Defendant for declaratory relief and damages. The complaint contained three causes of action. In the first cause of action, Plaintiff sought a judicial declaration that Defendant had a duty to defend Gary Transport and FedEx in the wrongful death lawsuit because they both qualified as an insured under the policy it issued to WMK. In the second and third causes of action, Plaintiff sought damages from Defendant on two alternative theories: (1) equitable indemnity, pursuant to which it sought to recover all defense costs it incurred to defend Gary Transport and FedEx on the that ground Defendant was primarily liable for the defense; or (2) equitable contribution, pursuant to which it sought to recover a “proportionate” share of defense costs. In the meantime, the wrongful death lawsuit settled, with Plaintiff contributing its $2 million policy limit and Defendant contributing its $1 million policy limit.4 Defendant’s Motion for Summary Judgment Defendant filed a motion for summary judgment, arguing it was undisputed it had no duty to defend FedEx or Gary Transport in the wrongful death lawsuit because the policy it issued to WMK did not cover them as insureds. The trial court denied the motion, finding there were triable issues of material fact as to whether Defendant had a duty to defend. 5 4 There is no claim in this case that either party is entitled to recover from the other any portion of the amounts paid in settlement. 5 We note Defendant filed a cross-appeal in this case challenging the order denying its summary judgment motion, but it ultimately abandoned its cross-appeal, and we thus have no occasion to review that order. 4 The Trial Court’s Statement of Decision and Judgment This case proceeded to a bench trial, which was presented based on argument and documentary evidence, and the trial court thereafter issued a statement of decision. It found “both insurers owed a duty to defend” Gary Transport and FedEx in the wrongful death lawsuit. (Italics added.) It noted the wrongful death lawsuit asserted both direct liability claims and vicarious liability claims against Gary Transport and FedEx. And it found Plaintiff’s policy provided coverage for their direct liability, while Defendant’s policy provided coverage for their vicarious liability. Having found both insurers owed a duty to defend, that left Plaintiff’s alternative claims for either equitable indemnity or equitable contribution. Plaintiff argued it was entitled to reimbursement from Defendant for all defense costs (i.e., equitable indemnity) pursuant to section 11580.9, subdivision (d), which provides, “where two or more policies affording …liability insurance apply to the same motor vehicle…in an occurrence out of which a liability loss shall arise, it shall be conclusively presumed that the insurance afforded by that policy in which the motor vehicle is described or rated as an owned automobile shall be primary and the insurance afforded by any other policy or policies shall be excess.” Plaintiff argued the policy issued by Defendant was primary because it was the only one that described the truck as a covered auto, and as the primary insurer, Defendant should pay all defense costs for FedEx and Gary Transport. Defendant argued, and the trial court found, that section 11580.9, subdivision (d) did not apply. According to the trial court, section 11580.9 “is designed to apply when more than one policy covers the same insured(s) for the same liability. Charmac, Inc. v. Aetna Cas. & Surety Co. (1991) 233 Cal.App.3d 660, 665-66.” Because the two policies covered FedEx and Gary Transport for different types of liability (i.e., one covered them for direct liability and the other covered them for vicarious liability), the trial court concluded section 11580.9, subdivision (d) did not apply. It also explained, “Since [Defendant] did 5 not owe any potential coverage for the direct liability allegations against Gary Transport and Fed Ex, it cannot be found to be primary with respect to such allegations under Insurance Code § 11580.9(d). A court may not impose an obligation on an insurer to provide coverage which it never agreed to or got paid to provide. Truck Ins. Exchange v. Superior Court (1997) 60 Cal.App.4th 342, 349. Here, only [Plaintiff] received a premium to cover the direct liability allegations against Gary and Fed Ex. Section 11580.9(d) is inapplicable to the extent there is no overlapping coverage under the policies for the direct liability claims.” Because the trial court found Plaintiff and Defendant both had a duty to defend FedEx and Gary Transport, and because it found section 11580.9, subdivision (d) did not apply to shift all defense costs to Defendant, it applied the doctrine of equitable contribution to allocate defense costs between them based on a pro rata share of the total available policy limits. Plaintiff’s policy limit was $2 million and Defendant’s policy limit was $1 million, and the trial court thus allocated two-thirds of the defense costs to Plaintiff and one-third to Defendant. The parties stipulated that Plaintiff paid $1,067,686.66 to defend FedEx and Gary Transportation and the trial court thus apportioned $711,791.11 to Plaintiff, and $355,895.55 to Defendant. Finally, the trial court found Plaintiff was not entitled to prejudgment interest on Defendant’s share of defense costs because the amount owed by Defendant was not certain or capable of being made certain until the trial court determined how to equitably allocate costs between the parties. Judgment was thereafter entered for Plaintiff in the amount of $355,895.55, and Plaintiff filed a timely notice of appeal. DISCUSSION Plaintiff’s primary argument on appeal is that section 11580.9, subdivision (d) is applicable and it entitles Plaintiff to recover all defense costs from Defendant and not just 6 a fraction of them. 6 The proper interpretation and application of section 11580.9 is a question of law that we review de novo. (Leshane v. Tracy VW, Inc. (2022) 78 Cal.App.5th 159, 163; Haggerty v. Thornton (2021) 68 Cal.App.5th 1003, 1008.) Our interpretation of the two insurance policies is also de novo where, as here, no extrinsic evidence was admitted on that issue. (MacKinnon v. Truck Ins. Exchange (2003) 31 Cal.4th 635, 641; Pacific Export Packers v. Chubb/Pacific Indem. Group (1976) 57 Cal.App.3d 186, 190.) 1. The Relevant Law In enacting section 11580.9, the Legislature declared, “it to be the public policy of this state to avoid so far as possible conflicts and litigation … between and among injured parties, insureds, and insurers concerning which, among various policies of liability insurance and the various coverages therein, are responsible as primary, excess, or sole coverage, and to what extent, under the circumstances of any given event involving death or injury to persons or property caused by the operation or use of a motor vehicle.” (§ 11580.8.) The Legislature further declared, “that Section 11580.9 of the Insurance Code expresses the total public policy of this state respecting the order in which two or more of such liability insurance policies covering the same loss shall apply.” (Ibid.) The purpose of section 11580.9 is thus to specify the order of policies “ ‘where there is more than one policy applicable to a particular loss.’ ” (Pacific Export Packers v. Chubb/Pacific Indem. Group, supra, 57 Cal.App.3d at p. 191.) “Where two automobile 6 Plaintiff also complains the trial court found Defendant “had a duty to defend Gary Transport and Federal Express in the wrongful death case, but it did not award [Plaintiff] judgment on its first cause of action for declaratory relief.” This argument elevates form over substance. The statement of decision specifies “both insurers owed a duty to defend” and thus effectively awarded Plaintiff the declaration it sought. And the judgment itself (which utilized Judicial Council Form JUD-100) notes that a statement of decision was requested and that judgment was entered for Plaintiff and against Defendant. 7 insurance policies provide coverage, the terms of sections 11580.8 and 11580.9 will conclusively determine which policy is the primary policy and which is excess.” (Mission Ins. Co. v. Hartford Accident & Indemnity Co. (1984) 160 Cal.App.3d 97, 101; see also Hartford Accident & Indemnity Co. v. Sequoia Ins. Co. (1989) 211 Cal.App.3d 1285, 1296-1297 [“The statute, where applicable, makes a definitive imposition of primary and/or excess liability on insurers in given situations”].) As noted above, section 11580.9, subdivision (d) provides, “where two or more policies affording valid and collectible liability insurance apply to the same motor vehicle or vehicles in an occurrence out of which a liability loss shall arise, it shall be conclusively presumed that the insurance afforded by that policy in which the motor vehicle is described or rated as an owned automobile shall be primary and the insurance afforded by any other policy or policies shall be excess.” (Italics added.) “Whether section 11580.9, subdivision (d) applies to an occurrence depends upon the existence of the simply stated condition. Do two or more insurance policies cover the same motor vehicle in ‘an occurrence out of which a liability loss shall arise?’ If the answer is ‘yes,’ the statute applies. If the answer is ‘no,’ the statute does not apply.” (Wilshire Ins. Co., Inc. v. Sentry Select Ins. Co. (2004) 124 Cal.App.4th 27, 36; see also Scottsdale Indemnity Co. v. National Continental Ins. Co. (2014) 229 Cal.App.4th 1166, 1171 [same].) To answer this question, we must first interpret the statute’s relevant terms, which are not expressly defined by the statute. For our purposes, we focus on the phrase “an occurrence out of which a liability loss shall arise.” (§ 11580.9, subd. (d), italics added.) “In the field of insurance, ‘occurrence’ is generally defined to mean an ‘accident.’ ” (Apex Solutions, Inc. v. Falls Lake National Ins. Co. (2024) 100 Cal.App.5th 1249, 1259.) And in the context of liability insurance, the term “loss” generally refers to “ ‘those sums that the insured becomes legally obligated to pay as damages [to a third party] for any covered claim,’ ” and can also refer to the cost to the insured “ ‘of 8 mounting a defense against a claim or lawsuit which seeks the imposition of [such] liability.’ ” (San Diego Housing Com. v. Industrial Indemnity Co. (2002) 95 Cal.App.4th 669, 685, 684; see also Garvey v. State Farm Fire & Casualty Co. (1989) 48 Cal.3d 395, 399, fn. 2 [in third party liability cases “the insured is seeking coverage against liability of the insured to another”].) As explained in Charmac, Inc. v. Aetna Casualty & Surety Co. (1991) 233 Cal.App.3d 660 (Charmac), and noted by the trial court, “liability policies generally do not ‘apply’ to losses by third parties; instead, liability policies ‘apply’ to indemnify an insured for the insured’s legal liabilities” to third parties. (Id. at p. 668.) A typical automobile liability insurance policy, for example, obligates the insurer to pay all sums the insured is legally liable to pay as damages to a third party because of bodily injury or property damage caused by an accident arising out of ownership, maintenance, or use of an insured vehicle. 7 (Croskey et al., Cal. Practice Guide: Insurance Litigation (The Rutter Group 2026) ¶ 7.1189.) We thus interpret the phrase “liability loss” in section 11580.9, subdivision (d) as referring to an insured’s potential liability to a third party for damages and costs incurred defending against such liability. Accordingly, section 11580.9, subdivision (d) applies if two or more liability insurance policies apply to the same motor vehicle that is involved in an accident out of which the insured may be liable for damages and defense costs. When section 11580.9, subdivision (d) applies, “then any policy which describes or rates the motor vehicle as an ‘owned automobile’ bears primary responsibility for the loss and any other policy is excess.” (Transport Indemnity Co. v. Royal Ins. Co. (1987) 7 We note both policies in this case are typical. Defendant’s provides, “We will pay all sums an ‘insured’ legally must pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies, caused by an ‘accident’ and result from the ownership, maintenance or use of a covered ‘auto’.” And Plaintiff’s provides, “we will pay damages … for bodily injury[ or] property damage … for which the insured becomes legally responsible because of an accident arising out of the ownership, maintenance or use of [an] insured auto.” 9 189 Cal.App.3d 250, 253.) A motor vehicle is described or rated if it is particularized in the policy, which is usually done by identifying the vehicle by make and model, year of manufacture, and/or vehicle identification number. (See Ohio Casualty Ins. Co. v. Aetna Ins. Co. (1978) 85 Cal.App.3d 521, 524 [“the statute … requires description or rating; this, in commonsense understanding, means a particularization of the vehicle”]; see also Hartford Accident & Indemnity Co. v. Sequoia Ins. Co., supra, 211 Cal.App.3d at pp. 1292, 1297-1298 [policy that identified “1976 Chevrolet Blazer” as insured vehicle described it within meaning of § 11580.9, subd. (d)]; Highlands Ins. Co. v. Continental Casualty Co. (9th Cir. 1995) 64 F.3d 514, 519 [policy that identified truck by reference to vehicle identification number described it within meaning of § 11580.9, subd. (d)].) In contrast, a policy that merely states the insurance applies to “ ‘an automobile owned by the named insured’ ” does not describe or rate a vehicle within the meaning of section 11580.9, subdivision (d). (Ohio Casualty Ins. Co., at p. 524; see also Hartford Accident & Indemnity Co., at p. 1297 [policy did not describe vehicle within meaning of § 11580.9, subd. (d) where it “simply insured vehicles … ‘owned’ by” the insured].) 2. Section 11580.9, Subdivision (d) is Applicable It is undisputed that the policy issued by Defendant was the only one that described the truck involved in the accident. Plaintiff thus argues that section 11580.9, subdivision (d) provides Defendant’s policy was primary and Plaintiff’s policy was excess. Defendant disagrees. It argues, and the trial court found, that section 11580.9, subdivision (d) is inapplicable. We find it is applicable and it conclusively establishes Defendant’s policy was primary. It appears undisputed that both insurance policies apply to the truck. (§ 11580.9, subd. (d).) Defendant’s policy specifically describes the truck as a covered auto, and Plaintiff’s policy provides an “insured auto” includes “any auto while used in your business.” There are thus two policies that apply to the same motor vehicle that was involved in an accident. The only remaining question is whether those two policies cover 10 Gary Transport and FedEx for a “liability loss” arising out of the accident. They do. The plaintiffs in the wrongful death lawsuit alleged Gary Transport and FedEx were liable to them for damages caused by the accident, both because they were directly liable for their own negligence in failing to properly vet WMK and Singh, and vicariously liable for the negligence of WMK and Singh. And the trial court found Plaintiff’s policy provided coverage for their direct liability, and Defendant’s policy provided coverage for their vicarious liability. This case thus appears to fit squarely within the language of section 11580.9, subdivision (d). The trial court found otherwise, based largely on Charmac, supra, 233 Cal.App.3d 660. We thus discuss Charmac in some detail. At the outset, however, we note that Charmac is distinguishable. Charmac involved the application and interpretation of section 11580.9, subdivision (c) (not § 11580.9, subd. (d)), which provides, “Where two or more policies are applicable to the same loss arising out of the loading or unloading of a motor vehicle, and one or more of the policies is issued to the owner, tenant, or lessee of the premises on which the loading or unloading occurs, it shall be conclusively presumed that the insurance afforded by the policy covering the motor vehicle shall not be primary … but shall be excess over all other valid and collectible insurance applicable to the same loss … and only the insurance afforded by the policy … covering the premises on which the loading or unloading occurs shall be primary.” The facts in Charmac were undisputed. Craig Campbell was injured while unloading a truck owned by Charmac, Inc., and/or Manufacturer's Mirror and Door Company (collectively Charmac) at a job site owned by Lincoln La Mesa, Lincoln Property Company, and PBMC, Inc. (collectively PBMC). Charmac was insured under a motor vehicle liability policy issued by Gulf Insurance Company, and PBMC was insured under a general liability policy issued by Aetna Casualty & Surety Company (Aetna). Campbell sued Charmac and PBMC for his injuries, and as part of that suit, Charmac and Aetna filed cross-complaints against each 11 other for declaratory relief. The issue in the declaratory relief action “was whether Aetna had primary liability for Campbell’s injuries, obligating it to defend and indemnify Charmac before the vehicle insurer became obliged to pay under an ‘excess policy.’ ” (Charmac, supra, 233 Cal.App.3d at p. 663.) The trial court found section 11580.9, subdivision (c) was applicable and the premises policy issued by Aetna was therefore primary, and the appellate court reversed. The court began by noting, “The apparent general purpose of section 11580.9 is to assign priorities among policies which insure a single tortfeasor.” (Charmac, supra, 233 Cal.App.3d at p. 665.) It then reiterated that section 11580.9 “as a whole was intended to operate when the same tortfeasor had multiple policies to which he could look for protection,” or when “multiple policies all apply to a single tortfeasor,” or when “two policies covered the same tortfeasor rather than merely the same accident.” (Charmac, at p. 666.) The parties, however, had “stipulated that Charmac was neither a named nor an additional insured under the Aetna policy.” (Id. at p. 668, fn. 5.) Thus, and unlike in this case, one of the two policies at issue did not provide coverage to Charmac for its potential liability to Campbell. The court rejected Charmac’s argument that the phrase “the same loss” meant “the same injury to the third party” (i.e., Campbell). Instead, it held, “Where, as here, two independent tortfeasors are insured under their own policies and each is not an additional insured under the other’s policy, the policies simply are not applicable to the same loss. Charmac’s argument depends entirely on its interpretation of the term ‘same loss’: the same injury incurred by the third party. However, liability policies generally do not ‘apply’ to losses by third parties; instead, liability policies ‘apply’ to indemnify an 12 insured for the insured’s legal liabilities in relation to the insured’s loss.[ 8] Here, for example, the ‘loss’ to which Aetna’s insuring agreement applies is constituted by ‘all sums which the insured shall become legally obligated to pay as damages … caused by an occurrence, …’ The term ‘insured’ is limited to persons or organizations ‘qualifying as an insured in the “Persons Insured” provision [i.e., PBCM].’ Charmac’s vehicle policy presumably has similar application, i.e., to indemnify Charmac for any liability Charmac has to Campbell. Since the vehicle policy applies to Charmac’s loss, but Aetna’s policy does not in that it owes no obligation to indemnify noninsureds under Aetna’s policy, the two policies do not apply to the same loss, i.e., the loss of the insured.” (Charmac, supra, 233 Cal.App.3d at pp. 667-668, fn. omitted.) Finally, the court explained, “A final reason for rejecting Charmac’s interpretation of section 11580.9, subdivision (c) is that such interpretation would make Charmac an additional insured under Aetna’s policy by operation of law. Charmac argues subdivision (c) requires, and the trial court’s judgment holds, that Aetna assume the role of primary carrier for Charmac (an otherwise noninsured party under the Aetna policy) and defend and indemnify Charmac for any liability it has to Campbell.” (Charmac, supra, 233 Cal.App.3d at p. 668.) As the court explained, however, the statute could not be used to effectively “ ‘create coverage where none exists.’ ” (Ibid.) Factually, this case is distinguishable from Charmac because the two policies at issue both potentially covered Gary Transport and FedEx for the damages sought by the plaintiffs in the wrongful death lawsuit. The policy issued by Plaintiff covered them because it was issued to Gary Transport and it named FedEx as an additional insured. 8 As noted above, this is essentially how we interpret the phrase “liability loss” as used in section 11580.9, subdivision (d)—i.e., we interpret it as referring not to the third party’s loss or damages, but as referring to the insured’s legal liability for the third party’s loss or damages. 13 And the policy issued by Defendant covered them because it defined “ ‘insureds’ ” as: (1) “You [i.e., WMK] for any covered ‘auto’ ”; (2) “Anyone else while using with your permission a covered ‘auto’ ” (which would include Singh, the driver); and (3) “Anyone liable for the conduct of an ‘insured’ described above but only the extent of that liability.” The trial court referred to this third provision as an “omnibus” clause, and the parties appear to agree with that characterization. “Liability insurance policies for commercial motor vehicles typically include an ‘omnibus clause’ expanding the definition of ‘insured’ to include certain persons who are vicariously liable for the negligence of a named insured or permissive user while using or operating the insured vehicle.” (Croskey et al., Cal. Practice Guide: Insurance Litigation (The Rutter Group 2026) ¶ 7:1222.) Courts have interpreted the same omnibus clause that is at issue in this case and have held it extends coverage to “a person or entity that is potentially vicariously liable” for the conduct of a named insured or a permissive driver of a covered vehicle. (American States Ins. Co. v. Progressive Casualty Ins. Co. (2009) 180 Cal.App.4th 18, 22; see id. at p. 28; see also Douglas Harp & Leading Edge Trucking, Inc. v. Converium Ins. (N. Am.) Inc. (C.D.Cal. Jan. 22, 2013, 5:12-cv-00760-ODW(DTBx)) 2013 U.S. Dist. LEXIS 9332, *9 [clause extends coverage to “any ‘person or entity that is potentially vicariously liable’ for the conduct of another insured”]; GBTI, Inc. v. Ins. Co. of the State of Pa. (E.D.Cal. Apr. 5, 2011, CV F 09-1173 LJP DLB) 2011 U.S. Dist. LEXIS 36917, *10, *18-*19 [“ ‘omnibus clause’ ” applies “only to persons ‘vicariously liable’ for the named insured’s negligence”].) The parties thus agree—and the trial court found—that the omnibus clause in the policy issued by Defendant extended coverage to FedEx and Gary Transport to the extent they were vicariously liable for the conduct of WMK and Singh. And the trial court also found the wrongful death lawsuit included allegations that FedEx and Gary Transport were vicariously liable for the conduct of WMK and Singh. Indeed, this is presumably why the trial court found both insurers had a duty to defend FedEx and Gary Transport. 14 Thus, unlike in Charmac, FedEx and Gary Transport had multiple policies to which they could look for protection from and coverage for liability loss arising out of the accident. Moreover, and also unlike Charmac, a finding that section 11580.9, subdivision (d) is applicable does not create coverage where none exists under the terms of the policy issued by Defendant. Again, the parties in Charmac stipulated that Charmac was not an insured under the Aetna policy. (Charmac, supra, 233 Cal.App.3d at p. 668, fn. 5.) Here, however, FedEx and Gary Transport are insureds under the policy issued by Defendant to the extent they are vicariously liable for the conduct of WMK or Singh. Defendant disagrees. It argues section 11580.9, subdivision (d) only applies when two policies cover the same vehicle for the “same liability,” 9 and it then contends the two policies at issue in this case do not cover FedEx and Gary Transport for the same liability because Plaintiff’s policy covers their direct liability while Defendant’s policy covers their vicarious liability. The statute, however, does not use the phrase “the same liability”—i.e., it does not state it applies when “two or more policies … apply to the same motor vehicle … in an occurrence out of which the same liability [i.e., of the insured] shall arise.” Instead, it uses the phrase “a liability loss,” and it states it applies when “two or more policies … apply to the same motor vehicle … in an occurrence out of which a liability loss shall arise.” (§ 11580.9, subd. (d), italics added.) And as we explained above, we interpret the phrase “liability loss” to mean the insured’s legal liability to a third party for damages and costs incurred to defend against such liability. Defendant argues, “the direct negligence claims … predominated in the underlying [wrongful death] action” and constituted the “gravamen” of the claims against 9 It appears the trial court agreed because it found, “§ 11580.9 … is designed to apply when more than one policy covers the same insured(s) for the same liability” (italics added), and it does not apply “when the two insurers cover discrete liabilities.” (Italics added.) 15 FedEx and Gary Transport, and the vicarious liability claims were merely “boilerplate” and “comprised a small portion of the pleading and appeared only as alternative theories to the central allegations of direct negligent vetting.” We will assume for the sake of argument that this is accurate. Defendant, however, fails to explain how this affects the applicability of section 11580.9, subdivision (d), which requires only that two policies apply to the same motor vehicle involved “in an occurrence out of which a liability loss shall arise,” and which does not require the court to then determine whether one policy covers a type of liability that predominates in the underlying lawsuit and then to deem that policy the primary policy. Moreover, it ignores the law on the scope of an insurer’s duty to defend. “A liability insurer must defend its insured whenever it ascertains facts that give rise to the potential of liability under the policy. [Citations.] [¶] ‘The insurer’s duty to defend the “insured” includes both the named insured(s) and anyone else included in the policy’s definition of “insured.” ’ ” (American States Ins. Co. v. Progressive Casualty Ins. Co., supra, 180 Cal.App.4th at pp. 25-26.) As discussed above, FedEx and Gary Transport both come within the Defendant’s policy’s definition of an “insured” as to their vicarious liability for the acts of WMK and Singh; the wrongful death lawsuit alleges vicarious liability claims against them; and those claims give rise to the potential for liability under the policy. “In an action in which some claims are potentially covered and others are not, the insurer must defend the entire action, including those claims for which there is no potential coverage under the policy—even if those claims predominate. It is enough that a single claim is potentially covered by the policy; the insurer owes a duty to defend even if all other claims against the insured are clearly not covered.” (Id. at p. 26.) As our Supreme Court has explained, “in a ‘mixed’ action, in which some of the claims are at least potentially covered and the others are not,” “the insurer has a duty to defend the action in its entirety.” (Buss v. Superior Court (1997) 16 Cal.4th 35, 48.) “[W]e can, and do, justify the insurer’s duty to defend the entire ‘mixed’ action prophylactically, as 16 an obligation imposed by law in support of the policy. To defend meaningfully, the insurer must defend immediately. [Citation.] To defend immediately, it must defend entirely. It cannot parse the claims, dividing those that are at least potentially covered from those that are not.” (Id. at p. 49, fn. omitted; see also Horace Mann Ins. Co. v. Barbara B. (1993) 4 Cal.4th 1076, 1081 [“the insurer is obligated to defend against all of the claims involved in the action, both covered and noncovered”]; Devin v. United Services Auto. Assn. (1992) 6 Cal.App.4th 1149, 1157 [“if an insurer is bound to defend an action based on the assertion of one covered claim, it must defend the entire action even though some portions of it involve noncovered claims”].) Thus, even if Defendant’s policy did not cover the direct liability claims asserted against FedEx and Gary Transport, it at least potentially covered the vicarious liability claims and Defendant thus had a duty to defend the entire action. Moreover, the duty to defend “applies even to claims that are ‘groundless, false, or fraudulent.’ ” (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 19; see also Palp, Inc. v. Williamsburg National Ins. Co. (2011) 200 Cal.App.4th 282, 289 [“The insurer must defend any claim that would be covered if it were true, even if it is ‘groundless, false or fraudulent’ ”].) So even if we assume the vicarious liability claims were “boilerplate” or comprised only a “small portion of the pleadings” or were only “alternative theories” of liability, Defendant nonetheless had a duty to defend the entire action. We also note that “if a duty to defend exists,” it generally continues until “the third party action is over.” (American Internat. Specialty Lines Ins. Co. v. Continental Casualty Ins. Co. (2006) 142 Cal.App.4th 1342, 1370.) “[T]he duty to defend ‘may be extinguished earlier, if it is shown that no claim can in fact be covered.” (Ibid.) “In order to extinguish the duty to defend earlier than the end of the third party action, the insurer must ‘produce in court undisputed extrinsic evidence which conclusively establishes that there is no potential for coverage.’ [Citation.] ‘Any doubt as to whether the facts establish the existence of the defense duty must be resolved in the insured’s favor.’ ” 17 (Ibid., italics omitted; see also Scottsdale Ins. Co. v. MV Transportation (2005) 36 Cal.4th 643, 655 [duty to defend “lasts until the underlying lawsuit is concluded, or until it has been shown that there is no potential for coverage”]; Prichard v. Liberty Mutual Ins. Co. (2000) 84 Cal.App.4th 890, 902 [insurer may obtain declaratory judgment showing there is no potential for coverage thus terminating its duty to defend].) Here, the wrongful death lawsuit concluded by settlement rather than trial or judgment, and Defendant thus cannot point to the outcome in that case to establish there was no potential for coverage and thus no duty to defend. Moreover, in this case Defendant tried to establish by its motion for summary judgment that it had no duty to defend because there was no potential for coverage, but the trial court denied the motion and ultimately found that both insurers had a duty to defend. Thus, Defendant has never “ ‘conclusively establishe[d] that there is no potential for coverage.’ ” 10 (American Internat. Specialty Lines Ins. Co., at p. 1370, italics omitted.) And again, and perhaps more importantly, the trial court found: (1) FedEx and Gary Transport were sued for vicarious liability claims, and (2) Defendant’s policy covered them for such claims. The trial court thus implicitly found there was a potential for coverage as to such claims, because that is the only way it could have found “both insurers owed a duty to defend.” (Italics added.) Defendant argues that an insurer’s duty to its insured to defend the entire action is inapplicable to a lawsuit between insurers regarding the proper allocation of defense costs. In other words, even if two insurers “each had a duty to defend [an] action[] in [its] entirety,” “[e]ach may also have had a corresponding right of some sort to require the others to share in discharging the duty or at least to contribute to its costs.” (Aerojet- General Corp. v. Transport Indemnity Co. (1997) 17 Cal.4th 38, 70 & fn. 19.) We might 10 In other words, Defendant has never established that FedEx and Gary Transport cannot be held vicariously liable for the acts of WMK and/or