California, United States of America
The following excerpt is from Scottsdale Ins. v. National Union Fire Ins., 116 Cal.Rptr.2d 174, 95 Cal.App.4th 891 (Cal. App. 2002):
We may assume, without deciding, that "loss" as used in appellants' policies does include defense costs. Their "other insurance" clauses, however, apply only when there is other insurance "covering a loss also covered hereunder." (Italics added.) The policies set forth two distinct insuring agreements. The first, entitled "COVERAGE," provides: "We will pay on behalf of the Insured that portion of the ultimate net loss . . . which the insured shall become legally obligated to pay as compensatory damages . . . because of Personal Injury, Property Damage or Advertising Liability, caused by an occurrence to which this insurance applies. . . ." (Per American policy; "will become legally obligated to pay" in National policy.) The second, entitled "DEFENSE," provides: "We will defend any suit against the insured alleging liability insured under the provisions of this policy and seeking recovery for damages on account thereof. . . ." Thus, a "covered" loss is one within the insuring agreement entitled "COVERAGE"a loss for which the insured is entitled to indemnity. Even assuming defense costs are a "loss," they are not a "covered loss." (Cf. Jarrett v. Allstate Ins. Co. (1962) 209 Cal.App.2d 804, 811-812, 26 Cal.Rptr. 231 ["loss payable" meant loss as capped by policy limits, not total loss suffered by insured].)
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