UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT NORTH RIVER INSURANCE No. 23-55757 COMPANY, a New Jersey corporation, D.C. No. 2:23-cv-00027- Plaintiff-Appellant, PSG-E

v. ORDER CERTIFYING A JAMES RIVER INSURANCE QUESTION TO COMPANY, an Ohio corporation, THE SUPREME COURT OF Defendant-Appellee. NEVADA

Filed August 28, 2024 Before: Richard A. Paez, Danielle J. Forrest, and Gabriel P. Sanchez, Circuit Judges.

Order 2 NORTH RIVER INS. CO. V. JAMES RIVER INS. CO.

SUMMARY *

Certification Order / Nevada State Law

Pursuant to Nevada Rules of Appellate Procedure Rule 5, the panel certified the question set forth below to the Nevada Supreme Court:

Under Nevada law, can an excess insurer state a claim for equitable subrogation against a primary insurer where the underlying lawsuit settled within the combined policy limits of the insurers?

ORDER

Pursuant to Nevada Rules of Appellate Procedure Rule 5, we respectfully certify the question set forth below to the Nevada Supreme Court. The answer to our certified question will “be determinative of the cause” pending before us. Nev. R. App. P. 5(a). This case involves an equitable subrogation claim brought by an excess insurer against a primary insurer. The suit arises from a murder in a Las Vegas, Nevada apartment complex. The victim’s estate sued the owners of the complex for negligence and wrongful death. The primary insurer rejected initial settlement demands that were at or within its policy limits, and the case ultimately settled for an * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. NORTH RIVER INS. CO. V. JAMES RIVER INS. CO. 3

amount exceeding the primary insurer’s policy limits, but within the combined limits of the two insurance policies. After paying the remainder of the settlement, the excess insurer sued the primary insurer in federal court in California, asserting an equitable subrogation claim and alleging that the primary insurer breached its duty to settle and the implied covenant of good faith and fair dealing. To resolve this appeal, we must determine whether California or Nevada law applies. If the laws of the two states are the same, California law will presumptively apply, as the forum state. See Washington Mut. Bank, FA v. Superior Ct., 24 Cal. 4th 906, 920 (2001). If there is a material conflict between the laws of the two states, however, we will be required to undertake a choice-of-law analysis and ultimately apply the prevailing jurisdiction’s law. See Chen v. Los Angeles Truck Centers, LLC, 7 Cal. 5th 862, 867–68 (2019). It is not clear to us, however, what the law of Nevada is here. The central issue in this appeal, therefore, is whether Nevada law permits equitable subrogation between insurers in this context. For the reasons we discuss below, we certify the following question:

Under Nevada law, can an excess insurer state a claim for equitable subrogation against a primary insurer where the underlying lawsuit settled within the combined policy limits of the insurers?

We recognize that our phrasing of this question does not restrict the court’s consideration of the issues involved and 4 NORTH RIVER INS. CO. V. JAMES RIVER INS. CO.

that the court may rephrase the question as it sees fit. We agree to accept the court’s answers. I. We briefly summarize the relevant facts. In 2017, Marcu