Mitsui Sumitomo Insurance USA, Inc. v. Tokio Marine & Nichido Fire Insurance Co., Ltd., 080916 FED9, 14-56337

Docket Nº:14-56337
Party Name:MITSUI SUMITOMO INSURANCE USA, INC., a New York Corporation; MITSUI SUMITOMO INSURANCE COMPANY OF AMERICA, a New York Corporation, Plaintiffs-Appellants, v. TOKIO MARINE & NICHIDO FIRE INSURANCE COMPANY, LTD., a Japanese Corporation, Defendant-Appellee.
Judge Panel:Before: O'SCANNLAIN, RAWLINSON, and CALLAHAN, Circuit Judges.
Case Date:August 09, 2016
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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MITSUI SUMITOMO INSURANCE USA, INC., a New York Corporation; MITSUI SUMITOMO INSURANCE COMPANY OF AMERICA, a New York Corporation, Plaintiffs-Appellants,

v.

TOKIO MARINE & NICHIDO FIRE INSURANCE COMPANY, LTD., a Japanese Corporation, Defendant-Appellee.

No. 14-56337

United States Court of Appeals, Ninth Circuit

August 9, 2016

NOT FOR PUBLICATION

Argued and Submitted August 1, 2016 Pasadena, California

Appeal from the United States District Court for the Central District of California D.C. No. 2:12-cv-09953-JAK-JCG John A. Kronstadt, District Judge, Presiding

Before: O'SCANNLAIN, RAWLINSON, and CALLAHAN, Circuit Judges.

MEMORANDUM [*]

Plaintiffs-Appellants Mitsui Sumitomo Insurance USA, Inc. and Mitsui Sumitomo Insurance Company of America (collectively "Mitsui") appeal the district court's grant of summary judgment on Mitsui's equitable contribution claims, and the district court's dismissal of Mitsui's bad faith claim in favor of Defendant-Appellee Tokio Marine & Nichido Fire Insurance Company Ltd ("Tokio"). We have jurisdiction under 28 U.S.C. § 1291. We affirm.

1. The district court properly granted summary judgment on Mitsui's equitable contribution claim in favor of Tokio. "[W]here two or more insurers independently provide primary insurance on the same risk for which they are both liable for any loss to the same insured, the insurance carrier who pays the loss or defends a lawsuit against the insured is entitled to equitable contribution from the other insurer or insurers." Fireman's Fund Ins. Co. v. Maryland Cas. Co., 65 Cal.App.4th 1279, 1289 (1998). However, Mitsui and Tokio did not share the same level of risk because the Tokio Marine policy ("TM policy") is an excess policy, not a primary one. The plain language of the TM policy, as amended by Endorsement 8, states that it applies "in excess of the greater of" either the retained limit or the amount collectible by "other insurance." Furthermore, the Endorsement replaced operative language on the first page of the policy indicating that the Endorsement is addressing the level of risk, primary vs. excess, and is not a mere "other insurance" clause. See Carmel Dev. Co. v. RLI...

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