Mitsui Sumitomo Insurance USA, Inc. v. Tokio Marine & Nichido Fire Insurance Co.

MEMORANDUM

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 Tok-io 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. “[Wjhere 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 , 77 Cal.Rptr.2d 29 (3 (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,…