Indemitee Not Saddled with Underlying Plaintiff's Crappy Expert

National Union Fire Ins. Co. of Pittsburgh, PA v. Tokio Marine & Nichido Fire Ins. Co., Bo. B244899 (D2d5 Feb. 4, 2015)

Two co-defendants in a personal injury case—a manufacturer and a retailer—settled for a combined $6.6 million on the eve of trial. Now their insurers are slogging out the subrogation and indemnity issues. On a motion in limine, the trial court limited the retailer’s carrier—who was trying to establish that the product was defective—to presenting to the theories of defect presented by plaintiff’s expert in the underlying PI case. Those theories weren’t very compelling—the retailer’s expert refused to adopt them. So, after the trial court refused to permit the expert to testify about other product defect theories, it nonsuited the retailer and entered judgment in favor of the manufacturer’s insurer.

The court of appeal reverses. When an insurer settles a personal injury claim and then purses a third-party claim indemnity claim against a co-defendant’s insurer, no authority justifies limiting the indemnity plaintiff to the underlying plaintiff’s expert evidence in proving fault. The additional expert evidence was relevant to the question of comparative fault and the expert’s qualifications were unchallenged. The trial court thus erred. And its error was “undoubtedly prejudicial” because it resulted in depriving the retailer’s insurer of any evidence that the true fault was that the product was, in fact, defective.

Reversed.