                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           DEC 16 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


EMPLOYERS INSURANCE COMPANY                      No.   14-56454
OF WAUSAU,
                                                 D.C. No.
              Plaintiff-Appellant,               5:10-cv-00810-VAP-DTB

 v.
                                                 MEMORANDUM*
LEXINGTON INSURANCE COMPANY,

              Defendant-Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                    Virginia A. Phillips, Chief Judge, Presiding

                     Argued and Submitted December 9, 2016
                              Pasadena, California

Before: CALLAHAN, BEA, and IKUTA, Circuit Judges.

      Employers Insurance Company of Wausau (Wausau) appeals the district

court’s entry of summary judgment in favor of Lexington Insurance Company




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
(Lexington) in this equitable contribution action. We have jurisdiction under 28

U.S.C. § 1291 and affirm.

      The accident report prepared by the California Department of Industrial

Relations Division of Occupational Health is admissible evidence, see Fed. R.

Evid. 803(8); Cal. Labor Code § 6313(a), and therefore the district court did not err

in considering it, see Fed. R. Civ. P. 56(c).

      The district court did not err in concluding that Lexington had no duty to

indemnify the insured. There is no genuine issue of material fact as to whether

“earth movement” at least “contributed to” or “aggravated” the bodily injuries in

issue, and the Lexington policy’s subsidence exclusion therefore applies. See id.

56(c)(1); id. 56(e)(2). The district court did not err in concluding that the

concurrent causation doctrine is inapplicable because Wausau failed to adduce any

evidence of “two negligent acts or omissions of the insured, one of which,

independently of the excluded cause, renders the insured liable for the resulting

injuries.” Daggs v. Foremost Ins. Co., 148 Cal. App. 3d 726, 730 (1983).

      The district court did not err in concluding that Lexington had no duty to

defend the insured. The Lexington policy’s excess-only other-insurance provision

was narrowly focused on risks associated with auto accidents, which were

generally outside the scope of Lexington’s CGL policy, and did not conflict with


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an other-insurance provision in the Wausau policy. Therefore, the provision was

enforceable under California law. Hartford Cas. Ins. Co. v. Travelers Indem. Co.,

110 Cal. App. 4th 710, 725–27 (2003). In Federal Insurance Co. v. Lexington

Insurance Co., No. 5:11-cv-895 (C.D. Cal. 2011), Lexington argued that a broad

escape-clause other-insurance provision was not enforceable; such an argument is

not clearly inconsistent with the one Lexington raises here, and therefore

Lexington is not judicially estopped from reliance on its other-insurance provision

here. Hendricks & Lewis PLLC v. Clinton, 766 F.3d 991, 1001 (9th Cir. 2014).

      Wausau’s pending motion for judicial notice is GRANTED IN PART as to

the memorandum of points and authorities and DENIED IN PART in all other

respects.

      AFFIRMED.




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