Evanston Insurance Company, a foreign insurance company v. Westchester Surplus Lines Insurance Company, a foreign insurance company

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EVANSTON INSURANCE COMPANY,
a foreign insurance company;
AMERICAN GUARANTEE &
LIABILITY INSURANCE CO., a foreign
insurance company,
Plaintiffs - Appellees,
v.
WESTCHESTER SURPLUS LINES
INSURANCE COMPANY, a foreign
insurance company; ROYAL
INSURANCE COMPANY OF
AMERICA, also known as Royal
Insurance Company,
NORTHWEST TOWER CRANE
SERVICE INC; JOHN DOES,
Defendants,
and
ROYAL INDEMNITY COMPANY, a
foreign insurance company, individually
and as a successor to Royal Insurance
Company of America aka Royal Insurance
No. 12-35783
D.C. No. 2:07-cv-00923-MJP
MEMORANDUM*
FILED
DEC 02 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Company,
Defendant - Appellant.
EVANSTON INSURANCE COMPANY,
a foreign insurance company,
Plaintiff,
and
AMERICAN GUARANTEE &
LIABILITY INSURANCE CO., a foreign
insurance company,
Plaintiff - Appellant,
v.
ROYAL INDEMNITY COMPANY, a
foreign insurance company, individually
and as a successor to Royal Insurance
Company of America aka Royal Insurance
Company; WESTCHESTER SURPLUS
LINES INSURANCE COMPANY, a
foreign insurance company,
Defendants - Appellees.
No. 12-35798
D.C. No. 2:07-cv-00923-MJP
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, Chief District Judge, Presiding
Argued and Submitted November 8, 2013
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Seattle, Washington
Before: SCHROEDER, PAEZ, and BERZON, Circuit Judges.
This is the third time this case has been before our court. It is a dispute
between insurance carriers arising out of a crane accident at a construction site. In
a previous memorandum disposition, we held that there was a contract requiring
Northwest Tower Crane to provide excess insurance for Bellevue Master, the
general contractor. Evanston Ins. Co. v. Westchester Surplus Lines Ins. Co., 451 F.
App’x 672 (9th Cir. 2011). On remand, Royal Indemnity contended that its excess
insurance was excess to all of Bellevue Master’s insurance. While the district
court was not correct in stating that our prior mandate precluded Royal’s argument,
the argument should have been raised earlier in the litigation and has therefore
been waived. See In re Cellular 101, Inc., 539 F.3d 1150, 1155 (9th Cir. 2008).
In the cross-appeal, American Guarantee seeks attorney’s fees, claiming that
under Washington law it is equitably subrogated to the rights of Bellevue Master.
Bellevue Master, however, was fully compensated by its own insurers, and
American Guarantee is seeking reimbursement from Royal and Westchester
Surplus Lines, who are insurers by virtue of a third party’s policies. The district
court was correct in ruling that American Guarantee was not entitled to recover
attorney fees from Royal and Westchester. See Trinity Universal Ins. Co. of
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Kansas v. Ohio Cas. Ins. Co., No. 67832-9-I, 2013 WL 4562718, at *11 (Wash. Ct.
App. Aug. 19, 2013).
AFFIRMED.
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