Assurance Company of America; v. National Fire & Marine Insurance Company

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ASSURANCE COMPANY OF
AMERICA; et al.,
Plaintiffs - Appellants,
v.
NATIONAL FIRE & MARINE
INSURANCE COMPANY,
Defendant - Appellee.
No. 12-16715
D.C. No. 2:09-cv-01182-JCM-
PAL
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted November 20, 2014**
San Francisco, California
Before: THOMAS, Chief Judge, REINHARDT, and CHRISTEN, Circuit Judges.
This appeal arises from Plaintiffs-Appellants’ (“Zurich”) claim for equitable
contribution against National Fire & Marine Insurance Company. Zurich appeals
FILED
DEC 01 2014
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.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

-- 1 of 5 --

several of the district court’s evidentiary rulings, as well as its decision to grant
National Fire’s motion for judgment on partial findings.1 We have jurisdiction
under 28 U.S.C. § 1291, and we affirm the district court’s decisions and judgment.
1. The district court properly denied Zurich’s motion to amend its
exhibit list. Zurich failed to demonstrate any manifest injustice or good cause for
its late request to amend the list. See Fed. R. Civ. P. 16(e); D. Nev. R. 16-3(d).
The only reason Zurich provided for its late request was inadvertence. According
to its own brief, the exhibits it wanted to add “did not alter or impact the damages
sought, but simply corroborated the sums requested.”
2. The district court properly excluded an exhibit that Zurich failed to
produce during discovery. “If a party . . . fails to obey an order to provide or
permit discovery,” the district court “may issue further just orders,” including
“prohibiting the disobedient party . . . from introducing designated matters in
evidence.” Fed. R. Civ. P. 37(b)(2)(A)(ii).
3. The district court properly denied Zurich’s request for judicial notice.
Zurich requested notice of entire case dockets and listed over a hundred
documents. It did not provide the court with facts “accurately and readily
1 The parties are familiar with the facts, so we will not recount them
here.
2

-- 2 of 5 --

determined from sources whose accuracy cannot reasonably be questioned.” Fed.
R. Evid. 201(b)(2). It was impossible for the court to glean from Zurich’s request
the facts Zurich wanted it to notice.
4. The district court improperly excluded Zurich’s computerized
payment ledgers based on the best evidence rule. To establish its claim for
equitable contribution, Zurich needed to prove that it paid more than its fair share
of defense and settlement costs that both Zurich and National Fire were obligated
to cover. See Fireman’s Fund Ins. Co. v. Md. Cas. Co., 77 Cal. Rptr. 2d 296, 303
(Cal. Ct. App. 1998). At trial, Zurich introduced the ledgers as proof of payment.
The best evidence rule requires only that “[i]n proving the terms of a writing,
where the terms are material, the original writing must be produced.” Seiler v.
Lucasfilm, Ltd., 808 F.2d 1316, 1319 (9th Cir. 1986) (emphasis added) (quoting
McCormick on Evidence § 230 at 704 (3d ed. 1984)). Because Zurich was not
proving the terms of the settlement agreements, the agreements themselves were
not necessary. Nor does the rule require that Zurich prove payment by introducing
canceled checks, as National Fire argued. See id. at 1318 (“[T]he rule requires not,
as its common name implies, the best evidence in every case but rather the
production of an original document instead of a copy.”).
3

-- 3 of 5 --

5. The ledgers were admissible as business records.2 Heidi Foote’s
testimony laid sufficient foundation for the admission of the ledgers. See Fed. R.
Evid. 803(6); United States v. Childs, 5 F.3d 1328, 1334 (9th Cir. 1993) (“The
phrase ‘other qualified witness’ is broadly interpreted to require only that the
witness understand the record-keeping system.” (quoting United States v. Ray, 930
F.2d 1368, 1370 (9th Cir. 1991) (internal quotation marks omitted)).
6. The district court properly required foundational witnesses for the
other exhibits. Although the parties’ pretrial stipulation governed the admission of
Zurich’s exhibits, National Fire expressly “reserv[ed] hearsay and foundation
objections for trial.” Zurich therefore needed witness testimony to lay the
foundation for their admissibility. See Orr. v. Bank of Am., 285 F.3d 764, 776 (9th
Cir. 2002) (“[A]uthenticity concerns the genuineness of an item of evidence, not its
admissibility.”); Black’s Law Dictionary 968 (9th ed. 2009) (defining “laying a
foundation”).
7. At trial, Zurich did not introduce sufficient evidence to prove the
elements of equitable contribution for the 26 construction defect claims at issue.
No evidence was admitted to show that Zurich and National Fire had common
2 We grant Zurich’s motion to augment the record with the ledgers. [See
Ca9 Dkt 12]
4

-- 4 of 5 --

insureds, that they covered the same risk, that Zurich paid more than its fair share
of losses, or that National Fire breached its duty to defend. See Fireman’s Fund,
77 Cal. Rptr. 2d at 303. The ledgers did not establish the elements of Zurich’s
case. We therefore affirm the district court’s judgment because its erroneous
evidentiary ruling resulted in no prejudice. See City of Long Beach v. Standard Oil
Co., 46 F.3d 929, 936 (9th Cir. 1995) (“Reversal will not be granted unless
prejudice is shown.” (citing Glover v. BIC Corp., 6 F.3d 1318, 1328 (9th Cir.
1993))).
AFFIRMED.
5

-- 5 of 5 --