Employers Insurance Co. of Wausau v. Lexington Insurance Co.

Ninth Circuit

Employers Insurance Co. of Wausau v. Lexington Insurance Co.

671 F. App'x 552

CourtCourt of Appeals for the Ninth Circuit

DecidedDecember 16, 2016

Docket14-56454

StatusUnpublished

Cited by2 cases

This text of 671 F. App'x 552 (Employers Insurance Co. of Wausau v. Lexington Insurance Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Employers Insurance Co. of Wausau v. Lexington Insurance Co., 671 F. App'x 552 (9th Cir. 2016).

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Opinion

MEMORANDUM *

Employers Insurance Company of Wau-sau (Wausau) appeals the district court’s entry of summary judgment in favor of Lexington Insurance Company (Lexington) in this equitable contribution action. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

The accident report prepared by the California Department of Industrial Relations Division of Occupational Health is admissible evidence, see Fed. R. Evid. 803(8); Cal.- Labor Code § 6313(a), and therefore the district court did not err in considering it, see Fed. R. Civ. P. 56(c).

The district court did not err in concluding that Lexington had no duty to indemnify the insured. There is no genuine issue of material fact as to whether “earth movement” at least “contributed to” or “aggravated” the bodily injuries in issue, and the Lexington policy’s subsidence exclusion therefore applies. See id. 56(c)(1); id. 56(e)(2). The district court did not err in concluding that the concurrent causation doctrine is inapplicable because Wausau failed to adduce any evidence of “two negligent acts or omissions of the insured, one of which, independently of the excluded cause, renders the insured liable for the resulting injuries.” Daggs v. Foremost Ins. Co., 148 Cal.App.3d 726, 730, 196 Cal.Rptr. 193 (1983).

The district court did not err in concluding that Lexington had no duty to defend the insured. The Lexington policy’s excess-only other-insurance provision was narrowly focused on risks associated with auto accidents, which were generally outside the scope of Lexington’s CGL policy, and did not conflict with an other-insurance provision in the Wausau policy. Therefore, the provision was enforceable under California law. Hartford Cas. Ins. Co. v. Travelers Indem. Co., 110 Cal.App.4th 710, 725-27, 2 Cal.Rptr.3d 18 (2003). In Federal Insurance Co. v. Lexington Insurance Co., No. 5:11-cv-895 (C.D. Cal. 2011), Lexington argued that a broad escape-clause other- *553 insurance provision was not enforceable; such an argument is not clearly inconsistent with the one Lexington raises here, and therefore Lexington is not judicially estopped from reliance on its other-insurance provision here. Hendricks & Lewis PLLC v. Clinton, 766 F.3d 991, 1001 (9th Cir. 2014).

Wausau’s pending motion for judicial notice is GRANTED IN PART as to the memorandum of points and authorities and DENIED IN PART in all other respects.

AFFIRMED.

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

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MEMORANDUM *

Employers Insurance Company of Wau-sau (Wausau) appeals the district court’s entry of summary judgment in favor of Lexington Insurance Company (Lexington) in this equitable contribution action. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

The accident report prepared by the California Department of Industrial Relations Division of Occupational Health is admissible evidence, see Fed. R. Evid. 803(8); Cal.- Labor Code § 6313(a), and therefore the district court did not err in considering it, see Fed. R. Civ. P. 56(c).

The district court did not err in concluding that Lexington had no duty to indemnify the insured. There is no genuine issue of material fact as to whether “earth movement” at least “contributed to” or “aggravated” the bodily injuries in issue, and the Lexington policy’s subsidence exclusion therefore applies. See id. 56(c)(1); id. 56(e)(2). The district court did not err in concluding that the concurrent causation doctrine is inapplicable because Wausau failed to adduce any evidence of “two negligent acts or omissions of the insured, one of which, independently of the excluded cause, renders the insured liable for the resulting injuries.” Daggs v. Foremost Ins. Co., 148 Cal.App.3d 726, 730, 196 Cal.Rptr. 193 (1983).

The district court did not err in concluding that Lexington had no duty to defend the insured. The Lexington policy’s excess-only other-insurance provision was narrowly focused on risks associated with auto accidents, which were generally outside the scope of Lexington’s CGL policy, and did not conflict with an other-insurance provision in the Wausau policy. Therefore, the provision was enforceable under California law. Hartford Cas. Ins. Co. v. Travelers Indem. Co., 110 Cal.App.4th 710, 725-27, 2 Cal.Rptr.3d 18 (2003). In Federal Insurance Co. v. Lexington Insurance Co., No. 5:11-cv-895 (C.D. Cal. 2011), Lexington argued that a broad escape-clause other- *553 insurance provision was not enforceable; such an argument is not clearly inconsistent with the one Lexington raises here, and therefore Lexington is not judicially estopped from reliance on its other-insurance provision here. Hendricks & Lewis PLLC v. Clinton, 766 F.3d 991, 1001 (9th Cir. 2014).

Wausau’s pending motion for judicial notice is GRANTED IN PART as to the memorandum of points and authorities and DENIED IN PART in all other respects.

AFFIRMED.

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

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671 F. App'x 552, Counsel Stack Legal Research, https://law.counselstack.com/opinion/employers-insurance-co-of-wausau-v-lexington-insurance-co-ca9-2016.

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