                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAR 14 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ADMIRAL INSURANCE COMPANY, a                     Nos. 16-17321
foreign corporation,                                  17-15481

              Plaintiff-Appellant,
                                                 D.C. No. 3:14-cv-08152-DGC
 v.

COMMUNITY INSURANCE GROUP                        MEMORANDUM*
SPC LIMITED, a foreign corporation,

              Defendant-Appellee.


                   Appeal from the United States District Court
                            for the District of Arizona
                   David G. Campbell, District Judge, Presiding

                     Argued and Submitted February 16, 2018
                            San Francisco, California

Before: SCHROEDER, TORRUELLA,** and RAWLINSON, Circuit Judges.

      This is a dispute between two insurers that issued policies covering claims

against an Arizona physician, Dr. Anthony Schwartz. Plaintiff-Appellant Admiral


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Juan R. Torruella, United States Circuit Judge for the
First Circuit, sitting by designation.
Insurance Company (“Admiral”) appeals from the district court’s order awarding

summary judgment to Defendant-Appellee Community Insurance Group SPC

Limited (“CIG”). Admiral also appeals from the district court’s subsequent award

of attorneys’ fees and costs to CIG. Our appellate jurisdiction over these

consolidated appeals rests on 28 U.S.C. § 1291, and we AFFIRM.

      Admiral’s policy covered only Dr. Schwartz, and CIG’s policy covered all

employees of the clinic where he worked. Each policy contained an “other

insurance” provision addressing the circumstances in which other policies would

render it excess as opposed to primary. Admiral filed this action seeking

contribution from CIG claiming that under Arizona law, the two “other insurance”

provisions were mutually repugnant and thus both policies became co-primary.

See Fremont Indem. Co. v. New England Reinsurance Co., 815 P.2d 403, 405

(Ariz. 1991) (in banc) (“Arizona follows the general rule of prorating the risk

between contradictory ‘other insurance’ provisions.”) (citation omitted).

      1. The district court correctly recognized that the two provisions are not the

same. While both provide their respective policies are deemed to be excess if there

is other insurance, the Admiral policy contains a further proviso that its excess

coverage provision does not apply if the other insurance is written to provide

excess coverage. The policies do not conflict. Because the CIG policy is excess,


                                          2
the further proviso in Admiral’s policy means Admiral’s is not. The district court

correctly held that Admiral’s policy is primary. We affirm its award of summary

judgment to CIG.

      2. Admiral appeals the district court’s award to CIG of attorneys’ fees under

A.R.S. § 12-341.01(A), non-taxable costs under A.R.S. § 12-341, and taxable

costs. The district court carefully weighed the relevant factors under Arizona law.

See Associated Indem. Corp. v. Warner, 694 P.2d 1181, 1184 (Ariz. 1985) (in

banc). The record reflects the district court reviewed the objections presented to it

and made appropriate adjustments. There was no abuse of discretion.

      AFFIRMED.




                                          3
