Opinion
No. 05-56418.
This panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed June 13, 2007.
David L. Mulliken, Esq., Latham Watkins, LLP, San Diego, CA, for Plaintiff-counter-defendant-Appellee.
Pamela J. Gelman, Esq., Grotefeld Denenberg, LLP, Los Angeles, CA, Jeffrey R. Learned, Esq., Grotefeld Denenberg, LLC, Bloomfield Hills, MI, for Defendant-cross-Defendant-Appellant.
William Casey, Duane Morris, LLP, San Francisco, CA, Eric A. Moon, Esq., Duane Morris, LLP, San Francisco, CA, for Defendants-cross-claimants — Appellees.
Appeal from the United States District Court for the Central District of California, Virginia A. Phillips, District Judge, Presiding. D.C. No. CV-04-01326-VAP.
Before: D.W. NELSON, REINHARDT, and RYMER, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
In this interpleader action brought by Fluor Australia Pty. Ltd., Allianz Global Risks U.S. Insurance Co. appeals the district court's order awarding summary judgment to Certain Lloyd's Underwriters, SR International Business Insurance Co. Ltd., and Kemper Environmental, Ltd. (collectively, the Fifth Layer Carriers) on the issue of whether the proceeds are to be allocated on a "top-down" or a pro rata basis. We affirm for substantially the same reasons as those stated by the district court.
I
We agree with the parties that we have jurisdiction over this appeal. Because there are no claims, parties, or issues remaining for adjudication in the interpleader action, the district court's order awarding summary judgment to the Fifth Layer Carriers is a final judgment appealable under 28 U.S.C. § 1291.
II
Under the top-down principle endorsed by the California Court of Appeal in Century Indemnity Co. v. London Underwriters, 12 Cal.App.4th 1701, 16 Cal. Rptr.2d 393 (1993), subrogation proceeds should be allocated to insurers in the order opposite to that in which they contributed to a settlement payout. Id. at 1710, 16 Cal.Rptr.2d 393. Allianz's reliance on a provision in the CNA primary policy is misplaced because that provision only addresses allocation of subrogation recoveries between Fluor and its insurer CNA, and is silent on allocation among Fluor's various insurers. The CNA primary policy therefore provides no reason to depart from traditional insurance principles and considerations of equity, which dictate top-down allocation in accordance with the levels of risk exposure for which the various insurers bargained.
III
It is unnecessary to remand to the district court because the insurance contracts are not ambiguous in any material respect. The CNA provision upon which Allianz relies clearly does not address allocation of subrogation recoveries among Fluor's multiple insurers.
AFFIRMED.