Employers Insurance Company of Wausau v. Lexington Insurance Company

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EMPLOYERS INSURANCE COMPANY
OF WAUSAU,
Plaintiff-Appellant,
v.
LEXINGTON INSURANCE COMPANY,
Defendant-Appellee.
No. 14-56454
D.C. No.
5:10-cv-00810-VAP-DTB
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, Chief Judge, Presiding
Argued and Submitted December 9, 2016
Pasadena, California
Before: CALLAHAN, BEA, and IKUTA, Circuit Judges.
Employers Insurance Company of Wausau (Wausau) appeals the district
court’s entry of summary judgment in favor of Lexington Insurance Company
FILED
DEC 16 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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(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 (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
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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 (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-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.
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