In Bramalea California, Inc. v. Reliable Interiors, Inc. (2004) 119 Cal.App.4th 468, a real estate developer (Bramalea) was sued by homeowners for construction defects. Bramalea's insurer, Zurich, hired counsel to provide a defense and filed cross-complaints against subcontractors for both equitable indemnity and contractual indemnity, the latter of which was based on a provision in the subcontractor agreement requiring the subcontractors to indemnify Bramalea and hold it harmless from all damages including attorney fees arising from the subcontractors' act or omission. (Id. at pp. 470-471.) Eventually, Bramalea tendered its defense to the subcontractors' insurers; the insurers accepted the tender. (Id. at p. 471.) The litigation was settled except as to Bramalea's right to recover from the subcontractors attorney fees incurred before its tender of the defense to the subcontractors' insurers. (Id. at p. 470.) The trial court dismissed the cross-complaint on the ground that Bramalea had no standing to recover the attorney fees from the subcontractors because it had not paid the attorney fees. (Ibid.) In so ruling, the court concluded: " 'This is not an action by Zurich for subrogation. It is an action by Bramalea for indemnity and breach of contract.' " (Id. at p. 471) Bramalea appealed. On appeal, the court affirmed, holding that Bramalea could not maintain a claim against the subcontractors for attorney fees because it had suffered no out-of-pocket loss. (Bramalea, supra, 119 Cal.App.4th at pp. 472-473.) The court then proceeded to discuss an issue neither before it on appeal nor ostensibly presented by the case, volunteering that it was "questionable whether Zurich could pursue equitable subrogation against the subcontractors." (Id. at p. 474.) Noting a conflict of authority, the Bramalea court observed that under Patent Scaffolding, Zurich would not be entitled to equitable subrogation because the "attorney fees were not caused by the subcontractors' breach of their obligation to indemnify Bramalea ..." but by the homeowners' lawsuit for construction defects, "which was one of the risks Zurich accepted premiums to cover," and "whether the subcontractors caused the construction defects was not resolved by this litigation." (Id. at p. 475 & fn. 4.) The court added that Zurich could presumably pursue an action against the subcontractors for equitable contribution. (Id. at p. 475, fn. 5.)