MITSUI SUMITOMO INSURANCE USA, INC., a New York Corporation v. TOKIO MARINE & NICHIDO FIRE INSURANCE COMPANY, LTD., a Japanese Corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
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
D.C. No.
2:12-cv-09953-JAK-JCG
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
Argued and Submitted August 1, 2016
Pasadena, California
Before: O’SCANNLAIN, RAWLINSON, and CALLAHAN, Circuit Judges.
FILED
AUG 09 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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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
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mere “other insurance” clause. See Carmel Dev. Co. v. RLI Ins. Co., 126 Cal. App.
4th 502, 511 (2005). Thus, Mitsui’s equitable contribution claim against Tokio
fails.
2. The district court did not abuse its discretion in dismissing Mitsui’s
subrogated bad faith claim for improper venue under Federal Rule of Civil
Procedure 12(b)(3). “[F]orum selection clauses are prima facie valid and should
not be set aside unless the party challenging enforcement of such a provision can
show it is unreasonable under the circumstances.” Argueta v. Banco Mexicano,
S.A., 87 F.3d 320, 325 (9th Cir. 1996) (quoting The Bremen v. Zapata Off–Shore
Co., 407 U.S. 1, 10 (1972) (internal quotation marks omitted)). Here, the
forum-selection clause in the TM policy was negotiated freely between two
Japanese commercial entities, Kyocera Corporation and Tokio, who selected Japan
as the forum to resolve any disputes and for Japanese law to apply. See Bremen,
407 U.S. at 16. Furthermore, this clause is distinguishable from other
forum-selection clauses that operate to foreclose non-waivable statutory rights of
consumers or employees. Cf. Doe 1 v. AOL LLC, 552 F.3d 1077, 1083–84 (9th
Cir. 2009) (per curiam).
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3. Finally, we deny Tokio’s attorney fees request1 which argues that
Mitsui was prohibited from appealing the district court’s dismissal of the
subrogated bad faith claim alleged in the First Amended Complaint
because that complaint was superseded by the Second Amended Complaint. Tokio
does not state the authority that entitles it to fees nor does it provide supporting
documentation. See 9th Cir. R. 39-1.6 (b) (“A request for an award of attorneys
fees must be supported by a memorandum showing that the party seeking fees is
legally entitled to them and must be accompanied by [supporting
documentation].”). Additionally, there simply was no basis to show that there was
any impropriety in appealing from the First Amended Complaint. “For claims
dismissed with prejudice and without leave to amend, we will not require that they
be repled in a subsequent amended complaint to preserve them for appeal. But for
any claims voluntarily dismissed, we will consider those claims to be waived if not
repled.” Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012) (en banc).
Although the district court dismissed the bad faith claim “without prejudice” to
“renew[]” the claim in Japan, the court involuntarily dismissed the bad faith claim
without granting leave to amend. Like Lacey, requiring Mitsui to replead this
1Our denial of Tokio’s motion is without prejudice. Pursuant to the Federal
Rules of Appellate Procedure, a prevailing party may file a bill of costs. See Fed.
R. App. P. 39.
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claim would have been “unfair” and a “wast[e] [of] resources.” Id. Thus, we hold
that Mitsui did not need to re-plead its bad faith claim in order to preserve its
ability to appeal its dismissal.
AFFIRMED.
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