Court rules indemnification plaintiff doesn’t have to rely only on former opposing expert.

In National Union Fire Insurance Co. of Pittsburgh Pa. v. Tokio Marine and Nichido Fire Insurance Co., the California Court of Appeal in the Second District held that a subsequent indemnity coverage action by an insurer may include expert opinions not presented by the original plaintiff’s experts in the underlying dispute.

The underlying plaintiff settled with Costco and Yokohama Tire Corporation (“Yokohama”) for $5.5 million and $1.1 million respectively regarding an allegedly defective tire that he claimed had caused his accident and resulting injuries.  As Costco’s insurer, National Union Fire Insurance Company of Pittsburgh, Pa (“National Union”) covered Costco’s costs but then looked to Yokohama based on a claimed indemnification.  This resulted in a separate action against Yokohama and its insurers, with the former co-defendants now on different sides.

The Court in the second action prevented National Union from presenting new expert opinions regarding the tire defect, instead allowing only the opinions of the original plaintiff’s expert in the underlying case (ie the expert opposing National Union in the original case).  This resulted in a non-suit, which was subsequently appealed by National Union.

Despite Yokohama’s continued argument that the only relevant defect opinions were those offered in the underlying matter which led to the settlement, the Second District Court of Appeal agreed that the trial court should have allowed expert evidence from National Union which could speak to underlying liability.     

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