Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. S-1500-CV-256509 William D. Palmer, Judge.
Ericksen, Arbuthnot and Michael D. Ott for Plaintiff and Appellant and Intervener and Appellant.
La Follette, Johnson, De Haas, Fesler & Ames, Daren T. Johnson, Robert B. Packer and David J. Ozeran; Law, Brandmeyer & Packer, Robert B. Packer and David J. Ozeran for Defendant and Respondent.
OPINION
HILL, J.
Plaintiff, Latanya LaBlue, and plaintiff in intervention, Centennial Insurance Company (Centennial), appeal from a judgment entered against them after a court trial. The trial court determined neither was entitled to reimbursement from defendant, Catholic Healthcare West (CHW), of amounts expended by Centennial to defend LaBlue and pay the judgment against her in a personal injury action arising out of her temporary employment with CHW. We conclude the trial court properly interpreted and applied the statute under which LaBlue and Centennial sued and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Placement Pros is a temporary help service firm, which provides temporary employees to its customers. The temporary employees remain on the payroll of Placement Pros, but are under the exclusive supervision of the customer while performing work for the customer. LaBlue applied for employment with Placement Pros; she was sent by Placement Pros to work at Mercy Hospital, which is owned and operated by CHW. While transporting a patient, Cynthia Seebart, on a gurney in the hospital, LaBlue caused the gurney to collide with an elevator wall. Seebart filed a personal injury action against CHW, and later added LaBlue and Placement Pros as defendants. Placement Pros tendered its defense and LaBlue’s to Placement Pros’ insurer, Centennial. Centennial accepted the defense without any reservation of rights and retained attorneys to represent Placement Pros and LaBlue. Counsel for LaBlue later tendered her defense to CHW, which rejected it. CHW settled with Seebart for $30,000 and obtained a determination of the good faith of the settlement. After a jury trial, judgment was entered against Placement Pros and LaBlue; Centennial paid the judgment against them, approximately $495,000, plus costs of approximately $16,000. Centennial also paid all of LaBlue’s defense costs.
The judgment apportioned liability 80 percent to CHW, 15 percent to LaBlue, and 5 percent to Placement Pros.
LaBlue filed this action against CHW, alleging that LaBlue was a special employee of CHW at the time of Seebart’s injury, she incurred costs of defense and the expense of the judgment against her as a result of that employment, and she was entitled to reimbursement from CHW of those defense costs, the judgment amount, and the costs of pursuing this case pursuant to Labor Code section 2802. Section 2802 requires an employer to indemnify its employee for expenditures the employee incurs as a consequence of the employment. Subsequently, Centennial filed its complaint in intervention, alleging it was subrogated to LaBlue’s right to reimbursement because it paid the costs of defense and the judgment against LaBlue in the Seebart action, as well as the costs of pursuing this action for reimbursement. Alternatively, Centennial alleged it was entitled to equitable indemnity or contribution from CHW.
All further statutory references are to the Labor Code unless otherwise indicated.
After a court trial and extensive briefing of legal issues, the court issued a statement of decision and entered judgment in favor of CHW on both the complaint and the complaint in intervention. It concluded LaBlue was not entitled to indemnity under section 2802, because she had not incurred any reimbursable costs, all her costs having been paid by Centennial. It found Centennial was not subrogated to LaBlue’s rights under section 2802, because its payment of her costs satisfied the statute and extinguished any such rights. The court denied Centennial’s claim for equitable indemnity, finding the equities did not favor Centennial because its insurance was purchased by Placement Pros pursuant to an oral agreement with CHW that Placement Pros would maintain liability insurance covering the work of temporary employees sent by Placement Pros to work at Mercy Hospital. The court found Centennial was not entitled to equitable contribution from CHW, because equitable contribution was available only among insurers, and CHW was self-insured. LaBlue and Centennial appeal, challenging the trial court’s conclusions.
DISCUSSION
I. Standard of Review
Interpretation of a statute presents a question of law, which we review de novo. (Silver v. Los Angeles County Metropolitan Transportation Authority (2000) 79 Cal.App.4th 338, 348.) The interpretation of a contract, when there is no conflicting extrinsic evidence as to the proper interpretation, is also a question of law, subject to de novo review. (Southern Pacific Land Co. v. Westlake Farms, Inc. (1987) 188 Cal.App.3d 807, 817.) As to factual issues, “‘[w]e must accept the trial court’s resolution of disputed facts when supported by substantial evidence; we must presume the court found every fact and drew every permissible inference necessary to support its judgment, and defer to its determination of credibility of the witnesses and the weight of the evidence.’ [Citation.]” (Fininen v. Barlow (2006) 142 Cal.App.4th 185, 189-190.)
II. LaBlue’s Complaint
The first cause of action of LaBlue’s second amended complaint alleged LaBlue was a special employee of CHW when she worked at Mercy Hospital, and she incurred necessary costs and expenses in the defense of the Seebart action as a direct consequence of discharging her duties as an employee of CHW. She sought compensation from CHW for those expenses pursuant to section 2802.
Only the first cause of action was in issue at the time of trial.
Section 2802 provides:
“(a) An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer.… [¶] … [¶]
“(c) For purposes of this section, the term ‘necessary expenditures or losses’ shall include all reasonable costs, including, but not limited to, attorney’s fees incurred by the employee enforcing the rights granted by this section.”
“When construing a statute, a court’s goal is ‘to ascertain the intent of the enacting legislative body so that we may adopt the construction that best effectuates the purpose of the law.’ [Citations.] Generally, the court first examines the statute’s words, giving them their ordinary and usual meaning and viewing them in their statutory context, because the statutory language is usually the most reliable indicator of legislative intent. [Citations.]” (Gattuso v. Harte-Hanks Shoppers, Inc. (2007) 42 Cal.4th 554, 567 (Gattuso).)
The employee’s necessary expenditures under the statute include “attorney’s fees and costs incurred in defending a third party lawsuit, where such expenses are necessary and the lawsuit is based on the employee’s conduct within the course and scope of his or her job duties.” (Cassady v. Morgan, Lewis & Bockius LLP (2006) 145 Cal.App.4th 220, 224 (Cassady).) Consequently, under the statute, if an employee incurs expenses to defend a third party action that was brought against him as a consequence of the discharge of his duties to his employer, the employer must indemnify the employee for those necessary expenses. LaBlue’s first cause of action seeks such indemnity for costs incurred in the Seebart action.
The trial court rejected LaBlue’s claim for indemnity. It found LaBlue did not incur any expenses for which indemnification under section 2802 was required, because Centennial paid all the expenses of the Seebart litigation. LaBlue and Centennial contend LaBlue “incurred” the litigation expenses, even if they were actually paid by Centennial. They assert this interpretation is consistent with the interpretation of the phrase “incurred by the employee” in Russell v. Thermalito Union School Dist. (1981) 115 Cal.App.3d 880, 881-882, footnote 1 (Russell).
In Russell, a teacher sought to recover attorney fees and costs for defending against an attempt by his employer to discharge him. Education Code section 44944 required that, when the teacher was successful in resisting discharge, the school district was required to pay the hearing expenses, including “reasonable attorney fees incurred by the employee.” (Russell, supra, 115 Cal.App.3d at pp. 881, 882, fn. 1.) The trial court ruled against the plaintiff, concluding that, since the plaintiff’s legal fees had been paid through a group legal services plan provided by the California Teachers’ Association, the plaintiff had not “incurred” any attorney fees. (Id. at p. 882.)
The court of appeal rejected that interpretation of the statute’s language. It concluded “‘to incur’ does not mean to actually pay for but only to become liable for or subject to.” (Russell, supra, 115 Cal.App.3d at p. 883.) The statute’s purpose was “‘to “make whole” the successful litigant.’” (Ibid.) Normally, to succeed in litigation, the litigant must employ counsel and make provision to pay for the services rendered, thereby incurring an obligation. “‘The ultimate source of the funds utilized to pay the attorney for a successful aggrieved employee is immaterial. It is of no essential consequence whether the employee paid from his own available funds or his family, friends, benefactor, insurance company, or teachers’ association came to his rescue.’” (Ibid.) Essentially, the teacher paid in advance for future legal services, by paying dues to the teachers’ association, and it would be a windfall to the school district to deny the teacher reimbursement because he had the foresight to do so. (Id. at pp. 883-884.) The court concluded the plaintiff was entitled to reimbursement of his legal fees, regardless of the fact they were paid through the legal services plan.
Russell is distinguishable from the case before this court. In Russell, the applicable statute required the district to reimburse the employee for his attorney fees. The district failed to fulfill its statutory obligation to reimburse the employee’s legal expenses; they were paid by a third party, through an arrangement with the employee.
In the present case, the applicable statute required the employer to reimburse the employee for his expenses of litigation, and those expenses were paid by the insurer of the employer, Placement Pros. “Employer” and “employee, ” as used in section 2802, are not defined. The term “contract of employment” is defined broadly: “a contract by which one, who is called the employer, engages another, who is called the employee, to do something for the benefit of the employer or a third person.” (§ 2750.) LaBlue was engaged by Placement Pros to do something for the benefit of both Placement Pros and a third person, CHW. Placement Pros was LaBlue’s employer, as that term is used in section 2802. Placement Pros fulfilled its obligation to LaBlue under section 2802 by having its insurer pay the expenses of defending LaBlue in the Seebart action. There was no third party paying on behalf of LaBlue involved; the expenses were not initially paid by insurance or a legal services plan purchased in advance by LaBlue. LaBlue did not retain attorneys to defend her, contract with them for representation, or agree to pay any of their fees. No one did so on her behalf, other than her employer’s insurer. There were no expenses “incurred by the employee” to be reimbursed by the employer pursuant to section 2802. The only expenses were those incurred and paid by or on behalf of the employer in fulfilling its statutory obligation.
This conclusion is consistent with another case discussing application of section 2802 to an employee’s litigation expenses. (Devereaux v. Latham & Watkins (1995) 32 Cal.App.4th 1571 (Devereaux), disapproved on another ground in Moran v. Murtaugh Miller Meyer & Nelson, LLP (2007) 40 Cal.4th 780, 785, fn. 7.) In Devereaux, the plaintiff, a former employee of the defendant law firm, sued the defendant pursuant to section 2802 for indemnity of expenses she incurred when she was deposed during an action brought against the law firm by its client alleging overbilling and during the underlying action in which the law firm represented the client.
The court discussed the application of section 2802, concluding that, because the plaintiff in her depositions took a position adverse to the defendant’s interests, her expenses were not incurred in the course and scope of her employment. (Devereaux, supra, 32 Cal.App.4th at pp. 1583-1584.) Additionally, the plaintiff had already been compensated for her expenses. For her deposition in the first action, her expenses were reimbursed by the client. For her deposition in the overbilling action, her expenses were jointly paid by the law firm and the client. (Id. at p. 1584, fn. omitted.) The court concluded “even if appellant was entitled to indemnity from the firm, her expenses have already been reimbursed.” (Ibid.)
The trial court found that, while LaBlue was performing work for Mercy Hospital, Placement Pros was her general employer and CHW was her special employer. Centennial and LaBlue contend section 2802 should be construed to impose a duty to indemnify the employee only on the employee’s special employer, because the special employer would be solely liable for torts committed by the employee on a respondeat superior theory. Alternatively, they argue the duty should be placed primarily on the special employer, and the special employer should be required to reimburse the general employer (or, in this case, its insurer), if the general employer initially indemnifies the employee.
“It is a general rule of the law of agency that, if one employer lends the services of his employee to another employer, the second or special employer temporarily may be liable for the employee’s tortious acts.” (Truhitte v. French Hospital (1982) 128 Cal.App.3d 332, 344.) The California Supreme Court has refined this general rule. “When an employer -- the ‘general’ employer -- lends an employee to another employer and relinquishes to a borrowing employer all right of control over the employee’s activities, a ‘special employment’ relationship arises between the borrowing employer and the employee. During this period of transferred control, the special employer becomes solely liable under the doctrine of respondeat superior for the employee’s job-related torts.” (Marsh v. Tilley Steel Co. (1980) 26 Cal.3d 486, 492.) This rule “flows from the borrower’s power to supervise the details of the employee’s work.” (Ibid.) However, “[w]here general and special employers share control of an employee’s work, a ‘dual employment’ arises, and the general employer remains concurrently and simultaneously, jointly and severally liable for the employee’s torts.” (Id. at pp. 494-495.) Thus, “the general employer is absolved of respondeat superior liability when it relinquishes total control to the special employer but it is jointly and severally liable with the special employer in respondeat superior if it relinquishes only partial control to the special employer.” (Brassinga v. City of Mountain View (1998) 66 Cal.App.4th 195, 216.)
Likewise, where dual employment exists, an injured employee may look to both the general and the special employer for worker’s compensation benefits, and may not maintain an action for damages against either employer. (Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168, 175.) Regarding worker’s compensation insurance, Insurance Code section 11663 provides: “As between insurers of general and special employers, one which insures the liability of the general employer is liable for the entire cost of compensation payable on account of injury occurring in the course of and arising out of general and special employments unless the special employer had the employee on his or her payroll at the time of injury, in which case the insurer of the special employer is solely liable.” This provision, however, “applies only between the insurers and will not affect the injured employees’ rights against the employers. The statute does not purport to abrogate the rule that where both the general and special employer exercised some measure of control both are liable.” (Argonaut Ins. Exch. v. Ind. Acc. Com. (1957) 154 Cal.App.2d 703, 707.)
Section 2802 does not distinguish between general employers and special employers. It simply requires that “[a]n employer” indemnify its employee for the specified expenses. (§ 2802, subd. (a).) Unlike the workers’ compensation statutes, there is no statute related to section 2802 specifying which of two employers must ultimately bear the burden of the employee’s expenses. The purpose of section 2802 “is to protect employees from suffering expenses in direct consequence of doing their jobs.” (Grissom v. Vons Companies, Inc. (1991) 1 Cal.App.4th 52, 60.) It is “‘designed to prevent employers from passing their operating expenses on to their employees.’” (Gattuso, supra, 42 Cal.4th at p. 562.) We believe the statutory purpose is best served by interpreting the term “employer” to include any employer, whether general or special. This interpretation comports with the plain meaning of the language used in the statute and provides the greatest protection to the employee. An interpretation distinguishing between general and special employers could give rise to disputes between potential dual employers that might delay their prompt assumption of the responsibility to indemnify the employee.
The ultimate allocation of the burden of those expenses to one employer or between dual employers is beyond the scope of section 2802. If the burden is to be shared or shifted, the source of authority for the allocation of the expenses must be found in other law.
In this case, unlike Russell, the employee’s litigation expenses were initially paid by or on behalf of the employer, who had a statutory obligation to pay them. LaBlue did not pay or become obligated to pay any of those expenses, either directly or indirectly through her own resources. She was made whole when Centennial paid her costs of defense and the judgment against her. If she were to recover from CHW the amounts paid by Centennial, the result would be a windfall to her.
The trial court did not err in concluding there were no expenses incurred by LaBlue in the Seebart litigation for which she could obtain reimbursement pursuant to section 2802. The litigation expenses were incurred and paid by Centennial, Placement Pros’ insurer, and Centennial’s payment discharged Placement Pros’ statutory obligation under section 2802. The court correctly interpreted the statute and its factual findings are supported by substantial evidence.
III. Centennial’s Claims
A. Subrogation
Centennial’s first amended complaint in intervention alleged that Centennial paid the defense and indemnity expenses of LaBlue as a potential insured under the policy it issued to LaBlue’s employer, Placement Pros. It alleged that, by reason of Centennial’s payment of those expenses, Centennial was subrogated to LaBlue’s rights against CHW under section 2802. The trial court concluded Centennial was not subrogated to LaBlue’s right to indemnity, because LaBlue had none.
The first amended complaint in intervention originally named Atlantic Mutual Insurance Company as the plaintiff in intervention. An amendment was later filed, to reflect the correct name of the plaintiff in intervention as Centennial Insurance Company.
“Equitable subrogation permits a party who has been required to satisfy a loss created by a third party’s wrongful act to ‘step into the shoes’ of the loser and pursue recovery from the responsible wrongdoer. [Citation.] In the insurance context, the doctrine permits the paying insurer to be placed in the shoes of the insured and to pursue recovery from third parties responsible to the insured for the loss for which the insurer was liable and paid.” (Fireman’s Fund Ins. Co. v. Maryland Casualty Co. (1994) 21 Cal.App.4th 1586, 1595-1596 (Fireman’s Fund I.) Centennial did not “satisfy a loss created by a third party’s wrongful act.” (Ibid.) The alleged wrongful act that gave rise to LaBlue’s expenses of defense and indemnity was that of LaBlue; she allegedly injured a patient of Mercy Hospital in the course of her employment there. Centennial is not pursuing a claim that CHW (a third party) injured LaBlue (the insured) by causing her to be sued and to have a judgment entered against her in the Seebart action.
There are six elements essential to an insurer’s cause of action based on equitable subrogation: “‘(1) [t]he insured has suffered a loss for which the party to be charged is liable, either because the latter is a wrongdoer whose act or omission caused the loss or because he is legally responsible to the insured for the loss caused by the wrongdoer; (2) the insurer, in whole or in part, has compensated the insured for the same loss for which the party to be charged is liable; (3) the insured has an existing, assignable cause of action against the party to be charged, which action the insured could have asserted for his own benefit had he not been compensated for his loss by the insurer; (4) the insurer has suffered damages caused by the act or omission upon which the liability of the party to be charged depends; (5) justice requires that the loss should be entirely shifted from the insurer to the party to be charged...; and (6) the insurer’s damages are in a stated sum, usually the amount it has paid to its insured, assuming the payment was not voluntary and was reasonable.’ [Citation.]” (Fireman’s Fund I, supra, 21 Cal.App.4th at p. 1596.)
The first element is absent. LaBlue did not suffer a loss for which CHW was liable as a wrongdoer who caused the loss. LaBlue’s loss was caused by her own wrongdoing. Her negligence gave rise to the suit by Seebart and its attendant costs and liability. Centennial does not contend that CHW caused LaBlue to be sued and to have a judgment entered against her in the Seebart action. Centennial also does not contend CHW is legally responsible for some other wrongdoer who caused the loss to LaBlue. Additionally, the third element is lacking. LaBlue does not have an existing, assignable cause of action against CHW for her defense and indemnity costs. LaBlue’s litigation expenses were paid by her employer’s insurer; she did not incur any expenses as a result of the lawsuit and has no claim for indemnity from either employer under section 2802. The fourth element is also absent. Centennial did not suffer damages caused by CHW’s conduct. Centennial’s alleged damages were not the result of CHW’s failure to pay LaBlue’s litigation expenses; they were the result of LaBlue’s negligence in performing the tasks of her employment and Centennial’s position as her insurer or the insurer of her employer, Placement Pros.
To the extent LaBlue might have contended CHW was a joint tortfeasor whose comparative negligence contributed to the occurrence of the incident in which Seebart was injured because CHW failed to properly train her for her job as a patient transporter, any claim by LaBlue, and any subrogation claim by Centennial, for equitable indemnity on that basis is barred by CHW’s good faith settlement with Seebart. (See, Code Civ. Proc., §§ 877, 877.6.)
Consequently, substantial evidence supports the trial court’s conclusion that LaBlue had no claim under section 2802 against CHW to which Centennial could be subrogated by payment. “‘[A]n insurer cannot acquire by subrogation anything to which the insured has no rights, and may claim no rights which the insured does not have.’” (Miller v. Ellis (2002) 103 Cal.App.4th 373, 381, fn. 4.) The trial court did not err in rejecting this claim.
We note that Centennial’s complaint in intervention did not allege that Centennial was subrogated to any rights of Placement Pros as a result of its payment of LaBlue’s expenses. Centennial has not pursued whatever claims Placement Pros, as LaBlue’s general employer, might have had against CHW, as LaBlue’s special employer. Consequently, we do not address that issue.
B. Equitable indemnity
“In general, indemnity refers to ‘the obligation resting on one party to make good a loss or damage another party has incurred.’ [Citation.]” (Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1157.) There are two basic types of indemnity: express indemnity and equitable indemnity. (Ibid.) “Equitable indemnity ‘“applies in cases in which one party pays a debt for which another is primarily liable and which in equity and good conscience should have been paid by the latter party.”’ [Citation.]” (United Services Automobile Assn. v. Alaska Ins. Co. (2001) 94 Cal.App.4th 638, 644-645.) “As a general rule an implied right of indemnity does not exist among tortfeasors where the parties are in pari delicto, that is, when the fault of each is of equal grade and similar in character.” (Herrero v. Atkinson (1964) 227 Cal.App.2d 69, 74.) “The duty to indemnify may arise, and indemnity may be allowed in those fact situations where in equity and good conscience the burden of the judgment should be shifted from the shoulders of the person seeking indemnity to the one from whom indemnity is sought. The right depends upon the principle that everyone is responsible for the consequences of his own wrong, and if others have been compelled to pay damages which ought to have been paid by the wrongdoer, they may recover from him. Thus the determination of whether or not indemnity should be allowed must of necessity depend upon the facts of each case.” (Ibid.) Accordingly, on an equitable indemnity theory, in order to shift the burden of a loss from the person seeking indemnity to the person from whom indemnity is sought, the equities must favor relieving the former of the burden and imposing it on the latter.
Centennial contends the equities favor shifting the burden of the loss from Centennial to CHW because the statutory obligation to indemnify LaBlue should be borne exclusively, or at least primarily, by her special employer, CHW. This is so, Centennial argues, because the special employer, and not the general employer, is liable for the employee’s torts on a theory of respondeat superior. We need not determine whether this approach would be appropriate as a general rule. The trial court’s factual findings make it inappropriate to shift the loss in this case.
The trial court found that Barbara Hiestand, on behalf of CHW, and Manuel Pena, on behalf of Placement Pros, negotiated an oral contract that governed the transactions in which Placement Pros provided temporary employees to CHW. Placement Pros agreed to supply temporary employees on CHW’s request; those employees would perform work for CHW under the exclusive supervision of CHW’s regular employees. Placement Pros agreed to provide and maintain workers’ compensation insurance and liability insurance covering the temporary employees while performing work for CHW. The temporary employees remained on Placement Pros’ payroll; Placement Pros paid them, then sent invoices to CHW reflecting the amount paid to the employees and a markup to cover Placement Pros’ expenses of providing the employees, including insurance, and a profit. Placement Pros agreed to provide certificates of insurance verifying it was maintaining workers’ compensation and liability insurance for the temporary employees, as agreed. In conformity with this agreement, Placement Pros periodically provided CHW with certificates of insurance verifying it had in effect policies of workers’ compensation and liability insurance. Placement Pros obtained liability insurance from Centennial, which covered Placement Pros’ employees while engaged in the scope of their employment and while performing duties related to the conduct of Placement Pros’ business.
The trial court concluded Centennial paid LaBlue’s litigation expenses and judgment pursuant to an insurance policy purchased by Placement Pros to fulfill its contractual agreement to provide liability insurance covering temporary employees such as LaBlue. That coverage was paid for by Placement Pros and the cost was reimbursed by CHW. In light of Placement Pros’ contractual obligation, the court found Centennial was not entitled to any equitable relief against CHW.
The court’s factual findings are supported by the parties’ joint statement of facts and the testimony of Hiestand. Hiestand testified she told Pena CHW had to have a certificate of insurance showing that Placement Pros carried workers’ compensation and liability insurance in specified amounts covering the temporary employees or CHW would not do business with Placement Pros. She said it was very important that the temporary employees have workers’ compensation and liability insurance, so that, if there were ever an incident, they would be covered and the hospital would not be liable. Hiestand faxed Pena a certificate of insurance form as an example of what CHW needed. She testified she received certificates of insurance from Placement Pros every three or six months.
The trial court’s conclusion that the equities do not warrant shifting the loss from Centennial to CHW is supported by the factual findings. Placement Pros agreed to provide liability insurance for the temporary employees so the hospital would not incur liability for their acts. Placement Pros complied with that agreement by maintaining the Centennial policy. CHW would not have done business with Placement Pros if Placement Pros had not provided liability insurance covering the temporary employees. It would not be equitable after the occurrence of a loss to shift the loss from the insurer, which was paid to cover it, to CHW, which indirectly paid for that coverage.
Centennial contends Pena was not authorized by Placement Pros to enter into an agreement to provide liability insurance for the temporary workers; this contention is based on testimony of Pena’s supervisor at Placement Pros, who stated he was not authorized to agree to provide liability insurance to protect temporary workers while they were working for a customer of Placement Pros. Centennial contends the agreement between Placement Pros and CHW should be disregarded on that basis. Centennial, however, is not in a position to assert the invalidity of the contract based on Pena’s asserted lack of authority to agree to provide insurance. “One who contracts with an agent or officer of, and acting for, a corporation generally cannot question his authority to bind the corporation. [Citation.] This is a general rule of agency. [Citation.] If an agent exceeds his authority his principal may complain but a third person may not. [The principal] had the right to affirm or repudiate the acts of its [agent]. It did not disaffirm them and plaintiff may not take unto himself the right to do so.” (Boteler v. Conway (1936) 13 Cal.App.2d 79, 83.) This rule is especially applicable where the parties to the contract acted under it without questioning the agent’s authority. (Ibid.)
If Pena exceeded his authority by agreeing that Placement Pros would provide liability insurance covering the temporary employees it sent to work for CHW, only Placement Pros had the right to repudiate that agreement. There was no evidence at trial that it did so. Centennial, as a third party, may not raise that issue.
Centennial also argues that the policy it issued to Placement Pros, pursuant to which it provided a defense and indemnity to LaBlue, did not actually cover the liabilities of the temporary employees Placement Pros furnished to CHW; it contends LaBlue was not an insured under the policy, and therefore the equities favor shifting the costs of defense and indemnity in the Seebart action to LaBlue’s special employer, CHW. The trial court found that the policy issued by Centennial did cover liability for LaBlue’s activities while working at Mercy Hospital.
The ordinary rules of contractual interpretation apply to insurance contracts. (Travelers Casualty & Surety Co. v. Transcontinental Ins. Co. (2004) 122 Cal.App.4th 949, 955 “‘“the mutual intention of the parties at the time the contract is formed governs interpretation”’”].) (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 18 (Waller).) Mutual intention is determined by objective manifestations of the parties’ intent. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 473-474.) It is to be inferred, if possible, solely from the written provisions of the contract. (Waller, supra, 11 Cal.4th at p. 18.) “The rules governing policy interpretation require us to look first to the language of the contract in order to ascertain its plain meaning or the meaning a layperson would ordinarily attach to it.” (Ibid.) If that meaning is unambiguous, it is given effect. (AIU Ins. Co. v. Superior Court (1990) 51 Cal.3d 807, 822.)
The Centennial policy provides that Centennial “will pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ … to which this Insurance applies” and “will have the right and duty to defend any ‘suit’ seeking those damages.” The policy defines the persons insured to include Placement Pros’ employees, “but only for acts within the scope of their employment by [Placement Pros] or while performing duties related to the conduct of [Placement Pros’] business.” “‘Employee’ includes a ‘leased worker, ’” but “does not include a ‘temporary worker.’” “‘Temporary worker’ means a person who is furnished to [Placement Pros] to substitute for a permanent ‘employee’ on leave or to meet seasonal or short-term workload conditions.”
It was undisputed that LaBlue was a general employee of Placement Pros at the time of Seebart’s injury. Centennial contends, however, that at the time of Seebart’s injury, LaBlue was not an insured under its policy because she was not acting within the scope of her employment by Placement Pros or performing duties related to the conduct of Placement Pros’ business.
The business of Placement Pros was to provide other organizations with specific services performed by its pool of temporary workers for brief or intermittent periods. Placement Pros’ income came from monies paid to it by its customers for the services of the temporary workers. The temporary employees Placement Pros provided to its customers were employees of Placement Pros and remained on its payroll. Placement Pros’ contract with its customers placed some limits on what the customer could permit the temporary employee to do. A temporary employee could decline an assignment to work for a particular customer of Placement Pros, but if the employee accepted the assignment, it was the employee’s duty to Placement Pros to go to the customer and perform work under the customer’s supervision. Placement Pros sent LaBlue to work as a patient transporter at CHW; the injury to Seebart occurred while LaBlue was working in that capacity.
LaBlue, having accepted the assignment to work temporarily as a patient transporter for CHW, was required by her employment with Placement Pros to attend work at the times specified by CHW and perform the duties of that position under the supervision of CHW personnel. She was doing so at the time of Seebart’s injury. At that time, LaBlue was acting within the scope of her employment by Placement Pros and performing duties related to the conduct of Placement Pros’ business, within the plain meaning of those terms as used in the Centennial insurance policy. Thus, she was an insured employee under the policy.
Although the policy specifically excluded coverage for temporary employees furnished to Placement Pros, it did not exclude coverage for temporary employees furnished to customers by Placement Pros, even though Placement Pros was in the business of furnishing temporary employees to its customers. If the parties had intended to exclude coverage for temporary employees placed by Placement Pros with its customers, the policy certainly could have contained such an exclusion, just as it contained an exclusion of temporary employees furnished to Placement Pros from its definition of covered employees.
Further, Centennial’s conduct indicated it interpreted its policy as extending coverage to LaBlue. When Placement Pros tendered LaBlue’s defense to Centennial, Centennial initially questioned whether LaBlue fell within an exclusion of those performing professional services; there was a question whether a patient transporter was performing professional services. Placement Pros was adamant that it wanted LaBlue defended. Centennial determined the professional services exclusion did not apply, and provided a defense without a reservation of rights. Accepting the trial court’s factual findings, which are supported by substantial evidence, we agree with its legal conclusion that LaBlue was a covered employee under the Centennial policy for the claims made against LaBlue in the Seebart action.
The trial court’s equitable determinations are reviewed for abuse of discretion. (Hartford Casualty Ins. Co. v. Travelers Indemnity Co. (2003) 110 Cal.App.4th 710, 724; Hirshfield v. Schwartz (1991) 91 Cal.App.4th 749, 770-771.) We find no abuse of discretion in the trial court’s determination that Centennial was not entitled to equitable indemnity from CHW on the facts of this case.
C. Contribution
Centennial also seeks equitable contribution from CHW. Civil Code section 1432 provides a statutory basis for equitable contribution. “Except as provided in Section 877 of the Code of Civil Procedure [pertaining to good faith settlements], a party to a joint, or joint and several obligation, who satisfies more than his share of the claim against all, may require a proportionate contribution from all the parties joined with him.” (Civ. Code, § 1432.) This rule applies even in the absence of any express or implied agreement between the payer and the person benefited; it “is founded not upon consent but upon natural justice. The underlying idea is that it is just and equitable for the person benefited to pay his proportionate share.” (Murchison v. Murchison (1963) 219 Cal.App.2d 600, 604.)
“Equitable contribution … is the right to recover, not from the party primarily liable for the loss, but from a co-obligor who shares such liability with the party seeking contribution. In the insurance context, the right to contribution arises when several insurers are obligated to indemnify or defend the same loss or claim, and one insurer has paid more than its share of the loss or defended the action without any participation by the others. Where multiple insurance carriers insure the same insured and cover the same risk, each insurer has independent standing to assert a cause of action against its coinsurers for equitable contribution when it has undertaken the defense or indemnification of the common insured. Equitable contribution permits reimbursement to the insurer that paid on the loss for the excess it paid over its proportionate share of the obligation, on the theory that the debt it paid was equally and concurrently owed by the other insurers and should be shared by them pro rata in proportion to their respective coverage of the risk. The purpose of this rule of equity is to accomplish substantial justice by equalizing the common burden shared by coinsurers, and to prevent one insurer from profiting at the expense of others.” (Fireman’s Fund Ins. Co. v. Maryland Casualty Co. (1998) 65 Cal.App.4th 1279, 1293, fn. omitted (Fireman’s Fund II).)
“[T]he reciprocal contribution rights of coinsurers who insure the same risk are based on the equitable principle that the burden of indemnifying or defending the insured with whom each has independently contracted should be borne by all the insurance carriers together, with the loss equitably distributed among those who share liability for it in direct ratio to the proportion each insurer’s coverage bears to the total coverage provided by all the insurance policies.” (Fireman’s Fund II, supra, 65 Cal.App.4th at p. 1294.) “‘The idea is that the insurers are “equally bound, ” so therefore they “all should contribute to the payment.” [Citation.]’ [Citation.]” (Id. at p. 1295.) Thus, equitable contribution among multiple insurers requires that their policies cover the same insured and the same risk.
Equitable contribution between insurers applies only between insurers who cover the same risk; it does not apply to a party who is self-insured. “Equitable contribution applies only between insurers [citations], and only in the absence of contract [citation].” (Aerojet-General Corp. v. Transport Indemnity Co. (1997) 17 Cal.4th 38, 72.) It has no place “between an insurer and an uninsured or ‘self-insured’ party.” (Id., at p. 72, fn. omitted.) An insurer “may not seek contribution from a self-insured entity because ‘the obligations arising from a policy of insurance do not extend to a self-insurer.’ [Citation.]” (Truck Ins. Exchange v. Amoco Corp. (1995) 35 Cal.App.4th 814, 828.) An entity that self-insures is not an insurer; it does not enter into a contract to indemnify another. (County of San Bernardino v. Pacific Indemnity Co. (1997) 56 Cal.App.4th 666, 690.) A self-insured party has no policy terms to put into effect, no policy limits, and no “‘“other insurance”’” clause to govern how its liability interacts with that of the insurers who issued policies covering the loss. (See id., at p. 691, fn. 20.)
Equitable contribution applies only to joint obligations. Centennial and CHW did not have a joint obligation. For liability claims such as Seebart’s, CHW was self-insured. CHW was not an insurer and did not provide insurance coverage to the same insured or for the same risk as the policy issued to Placement Pros by Centennial. CHW did not have an obligation as an insurer, jointly with Centennial, to provide a defense and indemnity to LaBlue. Thus, the requirements for equitable contribution were not met.
Section 2802 does not impose a duty to defend upon an employer; it requires only that the employer indemnify the employee for his or her costs. (Cassady, supra, 145 Cal.App.4th at pp. 236-238.) The duties imposed by section 2802 are not coterminous with an insurer's duty to defend. (Cassady, at p. 238.) Section 2802 does not transform an employer into an insurer. (Cassady, at p. 238.)
We note that, although CHW and Placement Pros may have had a joint obligation, as LaBlue’s employers, to indemnify her for expenses incurred by her in defending the Seebart action and paying the judgment against her, Centennial did not allege in its complaint in intervention or prove at trial any claim that it was subrogated to any right of Placement Pros to contribution from CHW. Consequently, we need not consider any such claim here.
We also note that any such claim, like the claim for equitable indemnity, would have been affected by the oral agreement between Placement Pros and CHW that Placement Pros would maintain liability insurance covering claims against the temporary employees Placement Pros provided to work at Mercy Hospital.
DISPOSITION
The judgment is affirmed. CHW is awarded its costs on appeal.
WE CONCUR: WISEMAN, Acting P.J., POOCHIGIAN, J.