The California Court of Appeals recently held that an excess judgment was not a necessary element to an equitable subrogation claim brought by an excess insurer against a primary insurer when the primary insurer failed to settle the underlying case. In ACE American Ins. Co. v. Fireman’s Fund, 2 Cal.App.5th 159, 206 Cal.Rptr.3d 176 (2d Dist. 2016), the Court held that the excess insurer could sue the underlying primary insurer for bad faith failure to settle under equitable contribution when the excess insurer contributed to a settlement of the claim against its insured. In this case, the Court held that the absence of a litigated judgment did not preclude the excess insurer from establishing the damages element of a claim for bad faith failure to settle under an equitable subrogation theory. The Court held that an excess insurer, when faced with a primary insurer’s unreasonable refusal to pay a settlement demand within policy limits could contribute to the settlement on behalf of its insured and then sue the primary insurer to recover the amount of the settlement.