Unpublished Disposition, 914 F.2d 261 (9th Cir. 1983)

No. 89-55392.

United States Court of Appeals, Ninth Circuit.

Before POOLE and DAVID R. THOMPSON, Circuit Judges, and PRO, District Judge^* .

MEMORANDUM^** 

Appellant Allianz Underwriters, Inc. ("Allianz") appeals the district court's order granting appellee Central National Insurance Group's ("Central") motion for summary judgment. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

FACTS

On August 30, 1983, a jeep accident caused personal injuries to Frank Crawford, Jr. and Robert MacCleery, both of whom were employees of 20th Century Fox Film Corp. ("Fox"). Crawford and MacCleery received workers compensation from Fox and then sued the other parties allegedly responsible for the accident. While Fox was not a defendant in these third-party lawsuits, the defendants were all employed by Fox at the time of the accident and had written indemnity agreements with Fox indemnifying then for the claims made by Crawford and MacCleery.

The third-party lawsuits were settled for $775,000. Of this amount, Central contributed approximately $280,000, exhausting the coverage under its comprehensive general liability policy. Allianz paid the remaining $495,000 under its umbrella insurance policy. Allianz then filed an action for declaratory relief against Central, claiming that Central's workers compensation and employers liability policy ("WCEL") was primary to Allianz's policy. Allianz and Central both filed motions for summary judgment. Summary judgment was granted in favor of Central on the ground that Central's WCEL policy was excess to Allianz's policy.

ANALYSIS

We may affirm a district court judgment on any ground that finds support in the record, regardless of whether specific reliance was placed upon such ground by the lower court. Haddock v. Board of Dental Examiners, 777 F.2d 462, 464 n. 4 (9th Cir. 1985); Calnectics Corp. v. Volkswagon of Am., Inc., 532 F.2d 674, 682 (9th Cir.), cert. denied, 429 U.S. 940 (1976).

The WCEL policy provides:

This agreement applies to loss sustained by the employer because of liability imposed upon the employer by ... (c) law for damages, on account of bodily injuries ... sustained by employees employed by the employer.

Allianz claims that "liability imposed upon the employer by law for damages" includes liability accepted in an express indemnity agreement. However, California courts have consistently held that contractual obligations are not obligations imposed by law. Vale v. Union Bank, 88 Cal. App. 3d 330, 340, 151 Cal. Rptr. 784, 790 (1979). The phrase "damages for liability imposed by law" has "been uniformly interpreted as referring to liability 'ex delicto' as distinguished from 'ex contractu.' " Fireman's Fund Ins. Co. v. City of Turlock, 170 Cal. App. 3d 988, 995, 216 Cal. Rptr. 796, 800 (1985). It is irrelevant whether the WCEL policy is excess to the Allianz policy, because the WCEL policy does not cover the contractual liability assumed by Fox. Thus, the Allianz policy is the only policy, other than the general liability policy, which provides coverage for the loss.

AFFIRMED.