NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
NOV 22 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
NAVIGATORS SPECIALTY Nos. 14-17085
INSURANCE COMPANY, a New York 15-16295
Corporation,
D.C. No. 2:13-cv-01062-GMS
Plaintiff-Appellee,
v. MEMORANDUM*
NATIONWIDE MUTUAL INSURANCE
COMPANY,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Submitted November 18, 2016**
San Francisco, California
Before: GOULD, CLIFTON, and WATFORD, Circuit Judges.
1. We affirm the district court’s holding that the Business Auto Policy
issued by Nationwide Mutual Insurance Company (Nationwide) to Titan Framing
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Page 2 of 3
Company (Titan) provided coverage for the defense and settlement of Susan
McArdle’s wrongful death action against Titan. The policy’s plain language states
that it covers “any auto,” but it is unclear whether “any auto” covers the vehicle
here. In First American Title Insurance Co. v. Johnson Bank, 372 P.3d 292, 296
(Ariz. 2016), the Arizona Supreme Court explained that uncertainties in an
insurance contract, such as the meaning of “any auto” in Nationwide’s policy, must
be resolved in the following manner: “If a clause appears ambiguous, we interpret
it by looking to legislative goals, social policy, and the transaction as a whole. If
an ambiguity remains after considering these factors, we construe it against the
insurer.” Consideration of the legislative goals, social policy, and the transaction
between Nationwide and Titan as a whole does not resolve the uncertainty of the
term “any auto.” Accordingly, under Arizona Supreme Court law, the term “any
auto” must be construed against Nationwide. The district court correctly
concluded that the Business Auto Policy covered the claims in the McArdle action.
2. The district court did not err in holding that the principle of equitable
subrogation entitled Navigators Specialty Insurance Company (Navigators) to
contribution from Nationwide. Under the principle of equitable subrogation, an
insurer that has provided a defense to an insured can compel contribution from
“another insurer who had a similar obligation to the same insured.” National
Page 3 of 3
Indemnity Co. v. St. Paul Insurance Companies, 724 P.2d 544, 545 (Ariz. 1986)
(en banc); see also Sourcecorp, Inc. v. Norcutt, 258 P.3d 281, 285 (Ariz. Ct. App.
2011) (noting that equitable subrogation extends not only to defense costs but also
to any debt that ought to be paid by one creditor rather than another). Nationwide
and Navigators had similar obligations to Titan—under Arizona law, they both
provided primary coverage for McArdle’s claims. See Harbor Insurance Co. v.
United Services Automobile Ass’n, 559 P.2d 178, 183 (Ariz. Ct. App. 1976). The
district court did not err in holding that Nationwide must reimburse Navigators in
the amount of $218,357.46, half of Navigators’ settlement costs and half of its
defense costs from the date of tender to Nationwide. See Nucor Corp. v.
Employers Insurance Co. of Wausau, 296 P.3d 74, 85 (Ariz. Ct. App. 2012)
(allocating defense costs among insurers is a matter of equitable judicial
discretion).
3. The district court did not err in awarding Navigators reasonable
attorney’s fees under Arizona Revised Statutes § 12-341.01(A). See California
Casualty Insurance Co. v. American Family Mutual Insurance Co., 94 P.3d 616,
622 (Ariz. Ct. App. 2004).
AFFIRMED.