                     FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 APOLLO EDUCATION GROUP,                    No. 17-17293
 INC., FKA Apollo Group, Inc.,
           Plaintiff-Appellant,              D.C. No.
                                        2:15-cv-01948-SPL
                v.

 NATIONAL UNION FIRE                       ORDER
 INSURANCE COMPANY OF                    CERTIFYING
 PITTSBURGH, PA, a                     QUESTION TO THE
 Pennsylvania corporation,             SUPREME COURT
          Defendant-Appellee.            OF ARIZONA

                     Filed August 15, 2019

 Before: Richard A. Paez and Richard R. Clifton, Circuit
         Judges, and Gary S. Katzmann, * Judge.

                             Order




   *
      The Honorable Gary S. Katzmann, Judge for the United States
Court of International Trade, sitting by designation.
2     APOLLO EDUC. GRP. V. NAT’L UNION FIRE INS. CO.

                          SUMMARY **


    Certified Question to the Supreme Court of Arizona

    The panel certified the following question of state law to
the Supreme Court of Arizona:

        What is the standard for determining whether
        National Union unreasonably withheld
        consent to Apollo’s settlement with
        shareholders in breach of contract under a
        policy where the insurer has no duty to
        defend?


                              ORDER

    Apollo Education Group, Inc., (“Apollo”) has asserted
breach of contract and bad faith claims against its insurer,
National Union Fire Insurance Company (“National Union”)
under a governing insurance policy. National Union was
contractually bound not to unreasonably withhold consent to
settlement from its insured, Apollo. This appeal presents the
question of the standard imposed by Arizona law on an
insurer’s obligation not to unreasonably withhold consent to
a settlement, where the insurer has no duty to defend.
Should the federal district court assess the objective
reasonableness of National Union’s decision to withhold
consent from the perspective of an insurer or an insured?



    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
        APOLLO EDUC. GRP. V. NAT’L UNION FIRE INS. CO.                    3

    As detailed below, the Teamsters Local 617 Pension &
Welfare Funds (“Teamsters”) filed a securities class action
lawsuit against Apollo in the U.S. District Court for the
District of Arizona. After five years of litigation, Apollo and
the Teamsters settled. National Union, as Apollo’s insurer,
declined to consent to the settlement, and Apollo sued
National Union for breach of its contractual obligation not to
unreasonably withhold consent. The district court held that
because National Union reasonably considered the
settlement, Apollo’s breach of contract claim failed as a
matter of law. 1 1ER 4–5. 2

    Apollo now argues before this court that summary
judgment was improper because the district court erred in
concluding that the insurer need only “consider[] the terms”
of the settlement. Pl.’s Br. at 38. Apollo contends that under
Arizona law, an insurer must consent to an objectively
reasonable settlement. Id. National Union instead frames
the district court’s decision as construing “the insurance
policy’s consent-to-settlement provision to focus on the
objective reasonableness of National Union’s decision to
withhold consent, rather than whether the settlement was
reasonable from Apollo’s perspective.” Def.’s Br. at 30.
Thus, while both Apollo and National Union contend that
the reasonableness standard is “objective,” they dispute from


    1
      The district court also held that Apollo’s claim that National Union
breached its duty to act in good faith failed as a matter of law. 1ER 5.
Because the district court’s analysis of this claim largely relied upon its
breach of contract analysis, we forgo addressing this claim pending
resolution of this open question of Arizona state law on the breach of
contract claim.
     2
       “ER” references are to the excerpts of record filed by the parties in
this court for the purposes of this appeal.
4   APOLLO EDUC. GRP. V. NAT’L UNION FIRE INS. CO.

whose perspective the district court should evaluate
reasonableness.

    Because this issue is governed by Arizona law but is not
clearly addressed by relevant Arizona authorities, we certify
it to the Supreme Court of Arizona pursuant to the
procedures established by Arizona Revised Statutes § 12-
1861 and Rule 27 of the Rules of the Supreme Court of
Arizona.

I. Factual Background

   Pursuant to Supreme Court of Arizona Rule 27(a)(3)(B),
we set forth the facts relevant to the question certified.

    In 2005, Apollo purchased a $15 million directors and
officers (“D&O”) insurance policy (“the Policy”) from
National Union. In March 2006, the Wall Street Journal
published an article in which it identified the practice of
backdating stock options for corporate executives. 2ER 95–
103. Backdating is particularly problematic when it results
in companies under-reporting executive compensation to
their shareholders. The article did not identify Apollo as one
of the companies affected. Id.

    In June 2006, the U.S. Attorney’s Office for the Southern
District of New York issued a grand jury subpoena, and the
Securities and Exchange Commission issued a letter
notifying Apollo of its intent to investigate the company for
backdating. Neither resulted in charges or enforcement
activities. 8SER 1558; 2SER 71. Apollo simultaneously
conducted its own internal investigation.              Apollo
subsequently disclosed publicly that “57 of the 100 total
grants made during [the relevant] time period used incorrect
measurement dates for accounting purposes.” 2ER 155. On
October 18, 2006, after Apollo issued a statement admitting
    APOLLO EDUC. GRP. V. NAT’L UNION FIRE INS. CO.            5

“various deficiencies in the process of granting and
documenting stock options,” the Teamsters alleged Apollo’s
stock price fell by 22.9% in one day. 4ER 543–44. Apollo’s
final report, however, found no direct evidence of
backdating. 2ER 154.

    In November 2006, the Teamsters, as lead plaintiff, filed
a securities class action in the U.S. District Court for the
District of Arizona, alleging fraudulent misrepresentations
and backdating by Apollo in violation of the Securities
Exchange Act of 1934. 3ER 290. In March 2009, the district
court denied Apollo’s motion to dismiss the Teamsters’
complaint, finding that the Teamsters “sufficiently pled
backdating.” 3ER 429–500, 460–62. In April 2009, the
Teamsters filed an amended complaint that included 54
allegedly false statements by Apollo and the reasons why the
statements were false. 4ER 524–42. In March 2011, the
district court concluded that the falsity allegations were not
pled with particularity, and thus, “[b]ecause the court has
expressly found that at least one of the elements of plaintiff’s
[backdating] claim is missing, i.e. falsity, that claim fails,
and there is no need for the court to consider defendants’ loss
causation and scienter arguments.” 4ER 602. The district
court dismissed the complaint with prejudice and entered
final judgment for Apollo. 4ER 604.

    The Teamsters filed a motion to reconsider and a
proposed amended complaint. In its March 2012 order, the
district court denied the motion, reasoning that (1) the
Teamsters had not met its burden to show that subsequent
case law warranted setting aside the judgment, 4ER 624; and
(2) the Teamsters had not shown clear error sufficient to
justify reopening a final judgment, 4ER 634.

    The Teamsters timely appealed the district court’s order
to this court. 3ER 314. In January 2013, while the appeal
6   APOLLO EDUC. GRP. V. NAT’L UNION FIRE INS. CO.

was pending, Apollo, National Union, and Apollo’s excess
insurance carriers agreed to mediation with the Teamsters.
2ER 27.        The parties entered into a Mediation
Confidentiality Agreement. 6ER 1075–77. After over a
year of mediation, Apollo agreed to settle with the Teamsters
for $13,125,000. 2ER 27. Apollo had $13,500,000
remaining on the Policy with National Union. 2ER 25.

   Apollo’s counsel believed the settlement was “a great
deal” for Apollo, 5ER 959, and that the appeal of the
backdating litigation would be an “enormously expensive
case to defend” if the case was reversed by this court,
5ER 823. Apollo feared the Teamsters could recover “a
substantial multiple of insurance coverage” if successful on
appeal. 5ER 803.

    Pursuant to the Policy, National Union had no duty to
defend Apollo. Instead, Apollo controlled its own defense
and settlement negotiations. 2SER 75, 9SER 1838. The
Policy provides:

       The Insurer does not, however, under this
       policy, assume any duty to defend. The
       Insureds shall defend and contest any Claim
       made against them. The Insureds shall not
       admit or assume any liability, enter into
       settlement    agreement,    stipulate   any
       judgment, or incur any Defense Costs
       without the prior written consent of the
       Insurer. Only those settlements, stipulated
       judgments and Defense Costs which have
       been consented to by the Insurer shall be
       recoverable as Loss under the terms of this
       policy. The Insurer’s consent shall not be
       unreasonably withheld, provided that the
       Insurer shall be entitled to effectively
     APOLLO EDUC. GRP. V. NAT’L UNION FIRE INS. CO.                      7

         associate in the defense, the prosecution and
         the negotiation of any settlement of any
         Claim that involves or appears reasonably
         likely to involve the Insurer.

2ER 48 (emphasis added).

    National Union declined to consent to or fund the
settlement. 4ER 770. Apollo nonetheless settled with the
Teamsters, using its own funds. Id. Apollo then filed the
present action in district court to recover $13,125,000 under
its Policy from National Union. Id. Apollo alleged breach
of contract under the Policy and bad faith, arguing that
National Union unreasonably withheld consent to the
settlement. 2ER 23–33.

    In February 2017, National Union filed a motion for
summary judgment. ECF 74; 6ER 1137. National Union
argued that summary judgment was appropriate on Apollo’s
breach of contract, bad faith, and punitive damages claims
because National Union did not unreasonably withhold its
consent to the settlement. Id. Apollo argued against
summary judgment, contending that there were genuine
issues of material fact regarding the reasonableness of its
settlement and National Union’s failure to consent. ECF 87;
6ER 1138. In October 2017, the district court granted
summary judgment in favor of National Union. 3 ECF 104;
6ER 1139.

     3
        The district court also precluded Apollo from introducing
documents protected by California’s mediation privilege. 1ER 7.
Apollo challenged the district court’s ruling on the admissibility of those
documents in the present appeal, which we affirmed in a concurrently-
filed separate disposition.
8       APOLLO EDUC. GRP. V. NAT’L UNION FIRE INS. CO.

    The district court first found no genuine issue of material
fact that National Union’s withholding of consent to
settlement was reasonable. 4 The district court stated that it
construed the Policy “in accordance with [its] ‘plain and
ordinary meaning’” and “‘to effectuate the parties’ intent.’”
1ER 3 (internal citations omitted). The district court noted
that “[i]n the context of insurance, questions of
reasonableness can be resolved by the Court as a matter of
law when the position of the parties turns on ‘the
interpretation of standard language in the form policies.’”
1ER 3 (quoting Lennar Corp. v. Transamerica Ins. Co.,
256 P.3d 635, 641 (Ariz. Ct. App. 2011). The district court
defined National Union’s obligation as “giv[ing] equal
consideration to both the interests of itself and of its
insured.” 1ER 4 (citing Bills v. Ariz. Prop. & Cas. Ins. Guar.
Fund, 984 P.2d 574, 578 (Ariz. Ct. App. 1999)). The district
court then noted the undisputed steps National Union took to
consider the settlement and concluded that in light of
National Union’s “extensive analysis weighing the
Teamsters’ settlement, taken in conjunction with the express
terms of Plaintiff’s policy, it is clear that Defendant fulfilled
its obligation to Plaintiff by considering the terms of the
Teamsters’ settlement and that Plaintiff’s breach of contract
claim must fail as a matter of law.” 5 1ER 4.


    4
       The district court also concluded that Apollo’s bad faith claim must
fail as a matter of law because it “failed to set forth facts from which a
reasonable juror could find that Defendant acted unreasonably, or knew
that it was acting unreasonably, when it refused to consent to Plaintiff’s
settlement with the Teamsters.” 1ER 5.
    5
        The district court stated:

           Defendant concluded that settlement was premature –
           and likely unnecessary – because of the probability
        APOLLO EDUC. GRP. V. NAT’L UNION FIRE INS. CO.                   9

   Apollo filed its Notice of Appeal to this court on
November 10, 2017. We heard argument on April 8, 2019,
and we issued a memorandum disposition on the issue of
mediation privilege concurrently with this Certification
Order.

II. Question of Law

    This case turns on Arizona state law. The basic question
is: What is the standard for determining whether National
Union unreasonably withheld Apollo’s settlement with
shareholders in breach of contract under a policy where the
insurer has no duty to defend? 6 For the reasons discussed

          that Plaintiff would prevail on appeal. Moreover,
          Defendant concluded that even in the unlikely event
          that Plaintiff did not prevail on appeal, there were a
          variety of other hurdles that Teamster would have to
          overcome in order to recover a “substantial judgment”
          against Plaintiff.

1 ER 4.
    6
      Windt’s insurance law treatise explains the conflict of interest that
an insurer and insured may face in considering a settlement:

          When a claim against an insured can be settled for the
          policy limit, a conflict of interest exists between the
          insured and the insurance company. It is generally in
          the insured’s interest to settle for the policy limit, since
          doing so protects the insured from any potential
          personal liability. However, it is generally not in the
          insurance company’s interest to settle for the policy
          limit. Apart from considerations of defense costs, the
          insurance company cannot do any worse than paying
          its policy limit. As long as any chance existed, no
          matter how remote, that the insured might prevail, it
          would generally be in the insurance company's interest
          to litigate rather than settle for the policy limit.
10 APOLLO EDUC. GRP. V. NAT’L UNION FIRE INS. CO.

below, Arizona case law does not allow us to reliably
determine how the Supreme Court of Arizona would answer
this basic question of the standard for evaluating the
reasonableness of National Union’s withholding of consent
at issue here.

    In Arizona, as in other jurisdictions, judicial analysis of
an insurance coverage dispute begins with the principle that:

        [a]n insurance policy is a contract, and in an
        action based thereon the terms of the policy
        must govern . . . [W]here the provisions of
        the contract are plain and unambiguous upon
        their face, they must be applied as written,
        and the court will not pervert or do violence
        to the language used, or expand it beyond its
        plain and ordinary meaning or add something
        to the contract which the parties have not put
        there.

Home Indem. Co. v. Wilson, 489 P.2d 244, 247 (Ariz. 1971)
(internal quotes and citations omitted). Here, in construing
the phrase “the Insurer’s consent [to settlement] shall not be
unreasonably withheld,” the district court relied upon the
Court of Appeals of Arizona’s holding in Bills that the

        Moreover, liability insurance policies, by their terms,
        give insurers complete discretion in deciding whether
        to settle or litigate. In light of that fact, and the conflict
        of interest that can arise between the insurer and the
        insured in connection with whether a claim against an
        insured should be settled, the law has imposed on
        insurance companies an implied contractual obligation
        to settle under certain circumstances.

1 Allan D. Windt, Insurance Claims and Disputes § 5:1 (6th ed. 2016).
    APOLLO EDUC. GRP. V. NAT’L UNION FIRE INS. CO. 11

insurer was obligated “to give equal consideration to both
the interests of itself and of its insured.” 1ER 4 (quoting
Bills, 984 P.2d at 578). The district court interpreted this to
require that National Union “consider[] the terms and
undert[ake] an assessment of a variety of factors” and
concluded that National Union “fulfilled its obligation to
[Apollo] by considering the terms of the Teamsters’
settlement.” 1ER 4. In Bills, however, the court was plainly
setting forth the meaning of the insurer’s obligations under
“the implied covenant of good faith and fair dealing,” not an
insurer’s obligations under a consent-to-settle provision.
984 P.2d at 578. Bills, therefore, does not answer the
question before us.

    Apollo relies primarily on two Arizona cases, United
Services Automobile Association v. Morris, 741 P.2d 246
(Ariz. 1987) and Himes v. Safeway Ins. Co., 66 P.3d 74
(Ariz. Ct. App. 2003), to argue that the district court, in its
breach of contract analysis, should have evaluated the
objective reasonableness of the settlement, not the extent to
which National Union may have considered settlement
factors. Pl.’s Br. at 44–45. In both cases, Arizona courts set
forth an objective standard, focused on the merits of the
underlying claim, to determine whether a settlement was
reasonable, and thus whether the insurer must accept it.

     In Morris, the insurer, United States Auto Insurance
(“USAA”), had a duty to defend the insured homeowners in
a tort action. 741 P.2d 246. USAA defended the case but
reserved its right to deny coverage, claiming the
homeowners may have committed intentional acts outside
the policy’s coverage. Id. at 249. The Supreme Court of
Arizona, however, noted that this reservation of rights put
the homeowners in a precarious position, incentivizing them
to limit their personal liability should they not be covered by
12 APOLLO EDUC. GRP. V. NAT’L UNION FIRE INS. CO.

the policy. Id. at 251. USAA’s position, however, was that
the homeowners’ duty to cooperate meant USAA could
force the homeowners to “reject any settlement, no matter
how reasonable, risk trial, and place [the homeowners] at
danger of a judgment larger than the policy limits or one that
might not be covered.” Id.

     The Supreme Court of Arizona explained why USAA’s
interpretation of its right – to reject a settlement, no matter
how reasonable – was problematic. The Court noted that this
would “hamstring[] insureds while granting the insurer a
double bite at escaping liability.” Id. “If the verdict were in
favor of [plaintiff] . . . USAA would have another chance at
escaping the obligation to indemnify because it would be
able to relitigate the intentional act exclusion coverage issue
. . . In addition, absent bad faith conduct, USAA will never
be at risk for more than [the] . . . policy limit.” Id. On the
other hand, the court observed that insureds have an
incentive to settle for any amount that allows them to escape
personal liability – that is, any amount at or below the policy
limit – even if the amount is unreasonable and unwarranted.
Id. The Supreme Court of Arizona thus recognized the
conflict between an insurer and insured’s interests,
particularly when a settlement may be at or near policy limits
and the insured could face greater personal liability at trial.

    In response to this problem, the Supreme Court of
Arizona adopted the standard set forth by Minnesota’s
Supreme Court in Miller v. Shugart, 316 N.W.2d 729 (Minn.
1982), which held that “neither the fact nor amount of
liability to the claimant is binding on the insurer unless the
insured or claimant can show that the settlement was
reasonable and prudent,” in accordance with indemnification
principles. Morris, 741 P.2d at 253 (quoting Miller,
316 N.W.2d at 735). The Supreme Court of Arizona then
    APOLLO EDUC. GRP. V. NAT’L UNION FIRE INS. CO. 13

applied the Miller test to determine “whether the settlement
was reasonable and prudent.” Id. at 254. The Court looked
to “what a reasonably prudent person in the insureds’
position would have settled for on the merits of the
claimant’s case. This involves evaluating the facts bearing
on the liability and damage aspects of a claimant’s case, as
well as the risks of going to trial.” Id. (citing Miller,
316 N.W. 2d at 735). Thus, if the Morris standard applies to
this case, the district court would look to whether it was
objectively reasonable for Apollo to reach the settlement it
did, not whether National Union thought it was reasonable
or the steps it took to consider and evaluate the settlement.

    In Himes, the Court of Appeals of Arizona applied the
reasonableness test set forth in Morris. 66 P.3d 74. There,
an insured involved in an auto accident settled with the
accident victim, giving the victim his breach of duty claims
against the insurer in exchange for an agreement that the
victim would not execute against the insured’s personal
assets. Id. at 87. The trial court judge held an evidentiary
hearing and found the settlement reasonable. Id. at 78. The
insurer appealed. Id. at 79. The Himes court held that the
burden of proving the settlement was reasonable was
squarely on the insured, but that the trial judge’s conclusion
that there was “no evidence that the agreement was
unreasonable” was “plainly contradicted by the record.” Id.
at 79–80.

    The Himes court reiterated the “reasonably prudent
person” standard adopted in Morris and enumerated factors
potentially relevant to evaluating reasonableness:

       [T]he releasing person’s damages; the merits
       of the releasing person’s liability theory; the
       merits of the released person’s defense
       theory; the released person’s relative faults;
14 APOLLO EDUC. GRP. V. NAT’L UNION FIRE INS. CO.

        the risks and expenses of continued litigation
        [on the merits]; . . . any evidence of bad faith,
        collusion, or fraud; the extent of the releasing
        person’s investigation and preparation of the
        case; and the interests of the parties not being
        released.

Id. at 85 (quoting Chaussee v. Md. Cas. Co., 803 P.2d 1339,
1343 (Wash. Ct. App. 1991)). The Himes court further noted
that, “it is only those costs, expenses, and risks that relate to
the merits of the underlying case that should be considered.
The costs, expenses, and risk of litigation for any coverage
or bad faith litigation . . . should not be considered.” Id. The
focus should only be on the merits of the claimant’s case,
“reflect[ing] what would occur in an arm’s-length
negotiation.” Id. The Himes court also noted that under
Morris and related case law an insured’s ability to pay
should not be considered, except in punitive damages cases.
Id. The Himes court defined “reasonably prudent person” as
one who “has the ability to pay a reasonable settlement from
his or her own funds” to avoid the need to introduce evidence
of the insured’s ability to pay into the reasonableness
analysis. Id. Lastly, the Himes court noted that its list of
factors was not exhaustive; courts should generally consider
factors which are “relevant in re-creating a genuine arm’s
length negotiation.” Id.

    National Union counters that unlike the policy before us,
in Morris and Himes the insurer had a duty to defend the
insured; that is, these cases on which Apollo relies are
inapposite because they do not involve “reimbursement
polic[ies] under which the insurer has no duty to defend the
insured.” Def.’s Br. at 37. Both cases, moreover, do not
involve the contract language, “insurer’s consent shall not be
unreasonably withheld,” at issue here. National Union
    APOLLO EDUC. GRP. V. NAT’L UNION FIRE INS. CO. 15

contends that the consent to settle line of cases, involving
third-party claims, cannot apply because, “[u]nder Arizona
law, a failure to reimburse the cost of a settlement entered by
the insured implicates a first-party claim for failure to pay
benefits, not a third-party claim for failure to defend the
insured.” Def.’s Br. at 37 (citing Trus Joist Corp. v. Safeco
Ins. Co. of Am., 735 P.2d 125, 135–36 (Ariz. Ct. App.
1986)). This court cannot say whether the Supreme Court of
Arizona would apply the reasonable settlement standard in
Morris and Himes here.

    The parties disagree fundamentally on the purpose of the
consent to settlement provision in the policy before us.
National Union, citing the Windt treatise, contends that
“when an insured desires to settle a lawsuit that has been
made against it with an insurer’s money, the insured does not
have complete discretion to spend the insurer’s money.”
Def.’s Br. at 31 (quoting 2 Allan D. Windt, Insurance Claims
& Disputes § 6:29, at 6-293 n.1 (6th ed. 2016)). “Since the
insured wants to spend not its own money, but someone
else’s money, the issue is not whether the insured had a
reasonable basis to pay a particular amount in settlement, but
whether the insurer had a reasonable basis not to agree to
pay that amount of money in settlement.” Id. (quoting Windt
at 6-293 n.1) (emphasis added by National Union). Apollo,
citing Morris, argues that the objectively reasonable
settlement rule is necessary to protect the insured because of
the inherent conflict that arises when an insured is presented
with a settlement opportunity at or near the policy limits and
the insurer has issued a reservation of rights and strong
incentives to avoid a settlement because it can rely on both
liability and coverage defenses and absent bad faith will
never face exposure beyond its policy limits. Pl.’s Br. at 44–
47.
16 APOLLO EDUC. GRP. V. NAT’L UNION FIRE INS. CO.

    Though in disagreement as to how consent to settlement
provisions should be evaluated, the parties are in agreement
as to their essential importance to the system of liability
insurance. We think that the resolution of that disagreement
and consideration of an open question of Arizona
jurisprudence are better entrusted to the Supreme Court of
Arizona than to us.

III.   Certified Question

    In light of the above discussion, we certify the following
question of law: What is the standard for determining
whether National Union unreasonably withheld consent to
Apollo’s settlement with shareholders in breach of contract
under a policy where the insurer has no duty to defend? This
court will accept the Arizona Supreme Court’s decision on
this question. Our phrasing of the question is not intended
to restrict the Arizona Supreme Court’s consideration of the
case or formulation of the question. See Broad v.
Mannesmann Anglagenbau AG, 196 F.3d 1075, 1076 (9th
Cir. 1999).

    The clerk of this court shall forward the original and six
certified copies of this order, under official seal, to the
Supreme Court of Arizona, along with copies of all briefs
and excerpts of record that have been filed with this court, as
directed by Supreme Court of Arizona Rule 27.

IV.    Counsel

  For Plaintiff-Appellant Apollo Education Group, Inc.,
FKA Apollo Group, Inc., an Arizona Corporation:
    APOLLO EDUC. GRP. V. NAT’L UNION FIRE INS. CO. 17

   Douglas E. Whitney
   Douglas Whitney Law Offices LLC
   321 North Clark Street, Suite 1301
   Chicago, Illinois 60654
   (312) 279-0510

   Mark J. DePasquale
   Mark J. DePasquale, P.C.
   3300 North Central, Suite 2070
   Phoenix, Arizona 85012
   (602) 744-7777

   Mark S. Hersh
   Reed Smith, LLP
   Chicago, Illinois 60606
   (312) 207-6400

  For Defendant-Appellee National Union Fire Insurance
Company of Pittsburgh, PA., a Pennsylvania Corporation:

   Bennett Evan Cooper
   Dickinson Wright
   1850 North Central Avenue, Suite 1400
   Phoenix, Arizona 85004
   (602) 285-5044

   Timothy M. Strong
   Steptoe & Johnson LLP
   Collier Center, Suite #1600
   201 E. Washington St.
   Phoenix, Arizona 85004-2382
   (602) 257-5219
18 APOLLO EDUC. GRP. V. NAT’L UNION FIRE INS. CO.

V. Filing fee

   The parties shall equally share the required filing fees
pursuant to Supreme Court of Arizona Rule 27(a)(3)(D).

VI.      Stay of Proceedings

    In light of our decision to certify the issue described here,
all further proceedings in this case before our court are
stayed pending final action by the Supreme Court of
Arizona, save for any petition for rehearing regarding the
memorandum disposition filed concurrently with this order.
The Clerk is directed to administratively close this docket
pending further order. The parties shall notify the clerk of
this court after the Supreme Court of Arizona accepts or
rejects certification, and again within fourteen days if the
Supreme Court of Arizona issues a decision.

  QUESTION             CERTIFIED;            PROCEEDINGS
STAYED.

      It is so ORDERED.



                        _____________________________
                        Richard A. Paez, Presiding Judge
