                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           AUG 09 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MITSUI SUMITOMO INSURANCE                        No.   14-56337
USA, INC., a New York Corporation;
MITSUI SUMITOMO INSURANCE                        D.C. No.
COMPANY OF AMERICA, a New York                   2:12-cv-09953-JAK-JCG
Corporation,

              Plaintiffs-Appellants,             MEMORANDUM*

 v.

TOKIO MARINE & NICHIDO FIRE
INSURANCE COMPANY, LTD., a
Japanese Corporation,

              Defendant-Appellee.


                    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.




         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      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


                                           2
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).




                                           3
      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


      1
       Our 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.
                                            4
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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