1 21

- 1516 Amerisure Ins. Co. et al. v. Selective Ins. Grp. et al. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX O R AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 2 City of New York, on the 9 t h day of M a y , two thousand twenty

- t hree

. 3 4 PRESENT: JOHN M. WALKER, JR. , 5 REENA RAGGI , 6 MICHAEL H. PARK, 7 Circuit Judges

. 8

----------------------------------------------------------------------- 9 AMERISURE INSURANCE COMPANY, 10 AMERISURE MUTUAL INSURANCE COMPANY, 11 Defendants

- Third

- Party

- Plaintiffs

- Appellants , 12

v. No. 21

- 1516 13
SELECTIVE INSURANCE GROUP, INC., DBA 14 SELECTIVE INSURANCE COMPANY OF 15 AMERICA, 16
Third

- Party

- Defendant

- Appellee

. 1 17

----------------------------------------------------------------------- 18

1 The Clerk of Court is respectfully directed to amend the caption accordingly.2 APPEARING FOR APPELLANT S : B RENDAN T. F ITZPATRICK ( Daniel W. Gerber, 1 Cara M. Nelson, on the brief ), Gerber Ciano 2 Kelly Brady LLP, Buffalo, NY. 3 4 APPEARING FOR APPELLEE : S TEVEN E. P EIPER , Hurwitz & Fine , P.C., 5 Buffalo, NY. 6 Appeal from a jud g ment of the United States District Court for the Northern 7

District of New York ( Lawrence E. Kahn , J

. ). 8
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 9

AND DECREED that the judgment of the district court is AFFIRMED

. 10
In this appeal, Amerisure Insurance Company and Amerisure Mutual 11
Insurance Company (collectively, “Amerisure”) challenge the district court ’s 12
ruling s regarding an insurance coverage dispute between Amerisure and Selective 13
Insurance Group, Inc. (“Selective”). We assume the parties’ familiarity with the 14
underlying facts, procedural history, and arguments on appeal, to which we refer 15
only as necessary to explain our decision. 16

B ACKGROUND 17

I. Relevant C ontracts and I nsurance P olicies 18
This insurance dispute arises out of an accident that occurred during the 19
construction of a theater for Movie Tavern Theaters, LLC (“MTT”) and Southern 20

Theatres, LLC (“Southern”) on land owned by the Hinsdale Road Group, LLC 213 (“Hinsdale”) and Cameron Group , LLC ( “Cameron”). MTT, Hinsdale, and 1

Cameron are collectively referred to as the “Owners

. ” Pursuant to an August 7, 2
2015 contract (the “General Contract”), MTT and Hinsdale retained Eilerson 3
Development Corporation (“EDC”) to serve as the general contrac tor of the 4
project. By way of a September 9, 2015 contract (the “Subcontract”), EDC 5
subcontracted certain masonry work to C&D Laface Construction, Inc. (“C&D”). 6

T he General Contract and Subcontract each required EDC and C&D to 7
obtain insurance policies. Section 11.1 of the General Contract required EDC to 8

procure , inter alia , commercial liability insurance , with the Owners to be included 9
as additional insureds for claims caused by EDC’s negligent acts or omission s. See 10
J. App’x 1505

– 06

. Section 4.1(c) of the Subcontract required C&D to procure 11
commercial general liability (“CGL”) insurance, which would name EDC as an 12
additional insured and which would be “primary and non

- contributing so that 13
[EDC’s] policy will not respond until the limits under [C&D’s] policy are 14

exhausted.” Id. at 1793. Finally, Section 4.1(d) of the Subcontract required C&D 15
to procure commercial umbrella liability insurance “for at least $1,000,000 [that] 16

shall be as broad as the primary General Liability

. . . . ” Id. Pursuant to the se 17
provisions in the General Contract and the Subcontract , EDC procured a CGL 184 policy and an umbrella policy from Amerisure , a nd C&D procured a CGL policy 1
and an umbrella policy from Selective

. 2

II. Procedural History 3

A. The Accident and Underlying Action 4

On November 5, 2015, a forklift operated by a C&D foreperson at the 5
construction site seriously injured Shaun Atkinson , a C&D employee. On May 14, 6

2018, Atkinson and his wife sued EDC, Cameron, MTT, and Southern in New York 7
Supreme Court. Selective defend ed EDC as an additional insured under the 8
Selective CGL policy in that action (the “ Atkinson Action”). Selective took the 9
position , however, that: (1) the Owners we re not additional insureds under the 10
Selective policies; and (2) the Selective u mbrella policy wa s excess over all other 11
coverage available to EDC , including the Amerisure CGL policy. 12
In August 2022, the parties in the underlying action executed a settlement 13
and funding agreement in which Amerisure and Selective each reserved their 14
rights against and between each other. 15

B. The Insurance Action 16 17 In December 2018, Cameron and Hinsdale brought a separate action in New 18
York Supreme Court seeking a defense and indemnity from EDC and Amerisure. 195 The case was removed on diversity grounds and was transferred to the Northern 1

District of New York, after wh ich EDC and Amerisure added C& D and Selective 2

as third

- party defendants. As relevant to this appeal , Amerisure and Selective 3
each moved for summary judgment as to the additional insured status of the 4
Owners and the priority of coverage between the Amerisu re CGL and Selective 5

u mbrella polic ies . In a June 3, 2021 decision, the district court granted Selective’s 6

motion as to both issues , finding that (1) t he Owners are not additional insureds 7
under the Selective policies , and (2) the Amerisure CGL policy is primary to the 8

Selective u mbrella policy as to the claims against EDC

. This appeal followed. 9

STANDARD OF REVIEW 10

This Court reviews de novo a district court’s grant of summary judgment. 11

Mount Vernon Fire Ins. Co. v. Belize NY, Inc. , 277 F.3d 232, 236 (2d Cir. 2002)

. 12
Summary judgment is appropriate “when no genuine issue of material fact exists 13
and the moving party is entitled to judgment as a matter of law.” Palmieri v. 14

Allstate Ins. Co. , 445 F.3d 179, 187 (2d Cir. 2006); see also Fed. R. Civ. P. 56( a ). 15

DISCUSSION 16
On appeal, Amerisure argues that the district court erred in finding that the 17

Owners are not additional insureds under the Sele ctive policies and in concluding 186 that the Amerisure CGL policy is primary to the Selective u mbrella policy as to 1

EDC. For the reasons explained below, we reject Amerisure’s arguments and 2

affirm. 3

I. The Owners are not additional insureds under the Selective policies. 4
In order for the Owners to qualify as additional insured s under the Selective 5
polic ies , C&D must have agreed in writing

— in the Subcontract or otherwise

— 6

to name the Owners as additional insured s

. See J. App’x 778 (including as an 7

additional insured under the Selective CGL policy “any person or organization 8

whom [C&D] agreed in a written contract, written agreement or written permit 9
that such person or organization be added as an additional insured on [the] 10
policy” ); i d. at 2205 ( stating that “ [a] ny additional insured under any policy of 11
‘underlying insurance’ will aut omatically be insured under [the Selective u mbrella 12
policy] ” ). 13
The parties do not dispute that t he text of the Subcontract does not itself 14
require that C&D name the Owners as additional insureds. 2 According to 15

2 The parties also do not dispute that C&D and the Owners d o not have to be in privity with each other in order for the Owners to qualify as additional insureds. Cf. Gilbane Bldg. Co./TDX Constr. Corp. v. St. Paul Fire & Marine Ins. Co. , 31 N.Y.3d 131 , 135 (2018) (privity required where policy recognized as an additional insured any person or entity “ with whom ” the named insured agreed to add as an additional insured in a written contract).7 Amerisure, however, the Subcontract incorporated all of EDC’s obligations under 1

the General Contract

— including Section 11.1 .4 of the General Contract , the clause 2

that required EDC to provide additional insured coverage to the Owners. See id. 3

at 1505 (“The Contractor shall caus e the commercial liability coverage required by 4

the Contract Documents to include . . . the Owner . . . as [an] additional insured[] 5
for claims caused in whole or in part by the Contractor’s negligent acts or 6
omissions during the Contractor’s operations

. . . .”). In support of its 7
incorporation argument, Amerisure notes that , in Section 5.3 of the General 8
Contract, EDC promised the Owners that it would require subcontractors “ to 9
assume toward [EDC] all the obligations and responsibilities . . . which [EDC], by 10

the Documents, assumes toward the Owner [ s],” id. at 1495, and that Section 1.9 of 11
the Subcontract states that “[t]he Subcontractor shall be bound by the terms of the 12
Specifications, General Conditions and Supplemental Conditions and Addenda in 13

th e Contract between the Contractor and the Owner, shall confirm to and comply 14
with the Drawings and Specifications and Addenda, and shall assume toward the 15
Contractor all the obligations and responsibilities that the Contractor assumes 16

toward the Owner , ” id

. at 1792. Amerisure also cites a number of New York cases 17
that it claims support its incorporation argument. 188 As an initial matter, we note that , pursuant to Section 7.1 of the Subcontract, 1

EDC and C&D agreed that Virginia law

— not New York law

— would govern 2
the interpretation of th e Sub contract

. U nder New York choice

- of

- law rules, which 3
are applicable in diversity cases such as this one that are brought in New York, “a 4
court is to apply the law selected in the contract as long as the state selected has 5

sufficient contacts with the transaction .” See Hartford Fire Ins. Co. v. Orient Overseas 6

Containers Lines (UK) Ltd. , 230 F.3d 549, 556 (2d Cir. 2000)

. Since EDC has its 7
principal place of business in Virginia, we conclude that the state sele cted in the 8

Subcontract has sufficient contacts with the transaction , and that Virginia law 9
governs the interpretation of the Subcontract. See Cap Gemini Ernst & Young, U.S., 10

L.L.C. v. Nackel, 346 F.3d 360, 366 (2d Cir. 2003) (“sufficient contacts” requir ement 11
satisfied where one party to transaction ha s principal place of business in state 12
selected)

. 13

Under Virginia law, Amerisure’s incorporation argument is unavailing. 14
The incorporation clause in the Subcontract does not require the subcontractor to 15
assume all obligations of the general contractor, but only those relating to the 16
nature or scope of the work undertaken by the subcontractor

. In VNB Mortgage 17
Corporation v. Lone Star Industries , Inc. , the incorporati on clause , like the clause at 189 issue here, stated that the subcontractor “agree[d]

. . . to be bound to the Contractor 1
by the terms of the [general contract], general conditions, drawings and 2
specifications, and to assume toward [the] Contractor all the obligations and 3
responsibilities that the Contractor, by those documents, assume[d] to the Owner.” 4

215 Va. 366 , 369 (1974) . T he Supreme Court of Virginia held that , notwithstanding 5
this broadly worded incorporation clause , a subcontractor was not bound by the 6
general contract’s waiver of liens provision because that provision did not pertain 7

t o the nature of the work to be performed under the subcontract. See id. at 370 8
( explaining that “ the subcontractor was put on notice of the general contract 9
between the [o]wners and [general contractor], and of the plans and specifications 10
for the projects, but he accepted them only as to the nature of the work and 11
materials required of him , ” and the incorporation of documents was thus 12
“restricted to that purpose only” ). The cou rt also noted that, “[i]n no part of the 13

subcontract

. . . is there any express waiver by the subcontractor of his right to file 14
a mechanic’s lien,” and that, to the contrary, “the possibility that lien waivers 15
might . . . be required of subcontractors” wa s evidenced by the contracts at issue. 16

Id. at 370

– 71. 1710 VNB squarely applies here. As with the waiver of liens provision in VNB , 1

the insurance clause in the General Contract here does not directly relate to the 2
nature or scope of the masonry work to be performed by C&D . And, as was true 3
of the waiver of liens provision in VNB , there is no mention elsewhere in the 4
Subcontract that C&D is required to name the Owners as additional insureds. In 5

fact, Section 4 of the Subcontract, which describe s C&D’s obligations with respect 6
to procuring insurance, specifies that EDC must be named as an additional 7

insured, but omit s any reference to adding the Owners as additional insureds. It 8

is also not eworthy that the General Contract, in a section entitled “Subcontractual 9
Relations,” appears to limit a subcontractor ’s assumption of EDC’s obligations to 10
those relevant to the scope of work performed by such sub contractors. See J. App’x 11
1495 (“By appropriate agreement , . . . the Contractor shall require each 12

Subcontractor, to the extent of the Work to be performed by the Subcontractor , to be 13
bound to the Contractor by the terms of the Contract Documents, and to assume 14
toward the Contractor all the obligations and respon sibilities, including the 15
responsibility for safety of the Subcontractor’s Work, which the Contractor, by 16

these Documents, assumes toward the Owner

. . . .” (emphasis added) ). Under 1711 these circumstances , we conclude that the Subcontract did not incorporate by 1
reference EDC’s obligation to name the Owners as additional insureds. 3 2
We would reach the same result even if we were to apply New York law. 3
New York law, like Virginia law, narrowly construes incorporation clauses in 4

subcontracts when they purport to bind a subcontractor to provisions in the 5
general contract that do not relate to the “scope, quality, character[,] and manner 6
of the work to be performed by the subcontractor.” See Persaud v. Bovis Lend Lease, 7

Inc. , 93 A.D.3d 831, 833 (2d Dep’t 2012) ( holding that an indemnity provision in a 8
general contract was not incorporated by reference into a subcontract, and 9
explaining that, “ u nder New York law, incorporation clauses in a construction 10
subcontract, incorporating prime contract clauses by referenc e into a subcontract, 11
bind a subcontractor only as to prime contract provisions relating to the scope, 12
quality, character and manner of the work to be performed by the subcontractor” 13
(internal quotation marks omitted) )

. 4 14

3 Uniwest Construction, Inc. v. Amtech Elevator Services, Inc. , 280 Va. 428 (2010), withdrawn in part on reh’g on other grounds , 281 Va. 509 (2011) , is not to the contrary. In that case, the Supreme Court of Virginia concluded that the s ubcontract ’s incorporation clause imposed a duty on the subcontractor to defend a nd indemnify the general contractor , but the court did not address the subcontractor’s duty with respect to the

owner

— which is the issue we address here . The court also noted other facts distinguishable from those here, including that the s ubcontract’s incorporation clause stated that the specifications were incorporated “for all intents and purposes.” Id. at 444

– 45.

4 The cases cited by Amerisure are largely inapposite, addressing issues such as the assignability of contracts, or the principle that pa rties are bound by the contracts they sign. See , e .g. , Travelers Prop. Cas. Co.12 In sum, because C&D did not assu me EDC’s obligation to name the Owners 1

as additional insureds, the Owners are not additional insureds under the Selective 2
policies

. We affirm the ruling of the district court as to this issue. 3

II. The Amerisure CGL policy is primary to the Selective umbrella policy

. 4
Amerisure also challenges the district court’s determination that the 5
Amerisure CGL policy provides coverage before the Selective u mbrella policy. 6
Neither party disputes that the Selective CGL policy is primary to the other three 7
policies

. C onsistent wit h this understanding, Selective defended EDC (as an 8
additional insured) in the underlying A tkinson A ction under that policy. The sole 9
question is which policy

— the Amerisure CGL policy or the Selective u mbrella 10
policy

— provides coverage next to EDC. 11

U nder New York law, 5 a court “determin[ing] the priority of coverage 12
among different policies . . . must review and consider all of the relevant policies 13
at issue,” including each policy’s so

- called “other insurance” or “excess coverage” 14
provisions. See B P Air Conditioning Corp. v. One Beacon Ins. Grp. , 8 N.Y.3d 708, 716 15
(2007). “[W]here there are multiple policies covering the same risk, and each 16

of Am. v. Burlington Ins. Co. , 180 A.D.3d 604 (1st Dep’t 2020); Daniel Gale Assocs., Inc. v. Hillcrest Ests., Ltd. , 283 A.D.2d 386 (2d Dep’t 2001).

5 The parties do not dispute that New York law governs the interpretation of the insurance policies at issue.13 generally purports to be excess to the other, the excess coverage clauses are held 1
to cancel out each other and each insurer contributes in proportion to its limit 2

amount of insurance.” Lumbermens Mut. Cas. Co. v. Allstate Ins. Co. , 51 N.Y.2d 651, 3
655 (19 80). This rule is inapplicable, however, “when its use would distort the 4
meaning of the terms of the policies involved,” which meaning “turns on 5
consideration of the purpose each policy was intended to serve as evidenced by 6
both its stated coverage and th e premium paid for it, as well as upon the wording 7
of its provision concerning excess insurance.” State Farm Fire & Cas. Co. v. LiMauro, 8
65 N.Y.2d 369, 374 (1985). Generally, “[a]n umbrella policy, which covers multiple 9
risks but offers no primary covera ge as to any of them and provides that it ‘shall 10
be in excess of, and shall not contribute with’ other collectible insurance covering 11
a loss available to the insured, except such as in excess of the limits of the umbrella 12
policy, is not required to contrib ute toward a loss until the limits of a[n underlying] 13
liability policy . . . have been exhausted.” Id. at 37 1

. 14
Here, a comparison of the policies’ “other insurance” clauses indicates that 15
the Amerisure CGL policy is primary to the Selective u mbrella pol icy. Indeed, 16

Section IV.4 of t he Amerisure CGL policy provides that the policy “is primary ,” 17
except if , inter alia , “other primary insurance [is] available to [EDC] . . . for which 1814 [EDC has] been added as an additional insured.” J. App’x 1623. The Selective 1

u mbrella policy, by contrast, provides that it “is excess over, and shall not 2
contribute with any other insurance, whether primary, excess, contingent or on 3
any other basis,” un less such other insurance is “specifically written as excess over 4
this Coverage Part.” Id. at 883. T hus, a straightforward comparison of the policies 5

indicates that the Selective u mbrella policy

— which is not a “ primary insurance” 6
policy

— is excess ove r the Amerisure CGL policy. 7

Amerisure makes three pri ncipal arguments in urging the Court to reach a 8
contrary result: First, Amerisure argues that the aforementioned “other 9
insurance” provision at Section IV.4 of the Amerisure CGL policy was “deleted 10

an d replaced” by a provision found in Section 3(f) of the “Contractor’s Blanket 11

Additional Insured Endorsement” (the “Endorsement”) to the Amerisure CGL 12
policy. S ee id. at 1642

– 44

. Section 3(f) of that En dorsement states : 13

f. SECTION IV

— COMMERCIAL GENERAL LIABILITY 14 CONDITIONS , paragraph 4. Other Insurance is deleted and 15 replaced with the following: 16 4. Other Insurance. 17 Any coverage provided in this endorsement is excess over any 18 other valid and collectible insurance available to the additional 19 insured whether primary, excess, contingent, or on any other 20 basis unless the written contract, written agreement, or 21 certificate of insurance requires that this insurance be primary, 2215 in which case this insurance will be primary without 1 contribution from such other insurance available to the 2 additional insured. 3
Id. at 1644. At first glance, this provision may appear to “delete” and “replace” the 4
provision at Section IV.4

. From the context, however, it is clear that this 5
replacement provision applies only to additional insureds, not to named insureds 6
under that policy

. T he E ndorsement’s title

— “Contractor’s Blanket Additional 7

Insured Endorsement”

— references additional , not named, insureds, and the 8
replacement language references “other . . . insurance available to the additional 9

insured.” Id. Since EDC is a named insured under the Amerisure CGL policy, not 10
an additional insured, this Endorsement and its “other insurance” provision have 11
no application to the priority of coverage dispute at issue here. 12

Amerisure next turns to the Subcontract’s insurance clause, which required 13
C&D to procure CGL insurance that would be “primary and non

- contributing” to 14
any insurance procured by EDC. Id. at 1793. Because that insurance clause also 15
required that C&D procure umbrella insurance “as broad as the primary General 16
Liability” insurance, Amerisure argues that the umbrella policy must also be 17
primary and non

- contributing. This argument is not persuas ive, however, 18
because the “as broad” language invoked by Amerisure is more easily understood 1916 to qualify only the scope of coverage ( e.g. , what risks are covered), not the priority 1
of coverage. In any event , Amerisure does not sufficiently explain why the 2
language of the Subcontract, in the face of otherwise unambiguous language of the 3

Selective u mbrella policy’s “other insurance” clause, should control here. 4
Amerisure’s final argument is that C&D’s agreement to indemnify EDC

— 5

found in Section 5.1 of the S ubcontract

— should be transferred to Selective ( as 6
C&D’s insurer), which would effectively require the Selective u mbrella policy to 7
provide coverage prior to that in the Amerisure CGL policy. In support, 8

Amerisure cites Century Surety Company v. Metropolitan Transit Authority , a recent 9
case in which a panel of this Court , applying New York law, concluded that an 10
indemnity agreement in a trade contract between insureds could override the 11
terms of an insurance policy concerning priority of coverage. See No. 20

- 1474

- CV, 12

2021 WL 4538633 , at *3 (2d Cir. Oct. 5, 2021) (citing Indem. Ins. Co. of N. Am. v. St. 13
Paul Mercury Ins. Co. , 74 A.D.3d 21 (1st Dep’t 2010); Arch Ins. Co. v. Nationwide Prop. 14

& Cas. Ins. Co. , 175 A.D.3d 437 (1st Dep’t 2019)). The ani mating principle in 15
Century Surety , and the cases on which it relied, is judicial economy

— that is, that 16
an indemnitee’s insurer should not have to bring a separate suit to enforce an 17
indemnity agreement that would nullify the court’s earl ier decision reg arding 1817 priority of coverage. See id. at *4 (predicting that the New York Court of Appeals 1
would agree that “the parties’ rights and obligations based upon both the terms of 2
the [relevant insurance policies] and the underlying indemnity agreement should 3

be determined in one action”). 4
While we do not disagree with the reasoning of our colleagues in Century 5
Surety , we find that case to be distinguishable from this one for two reasons: 6
First, Amerisure did not raise the indemnity argument before the district 7

court. While EDC’s third

- party complaint against C&D did assert indemnity

8
related claims against C&D , s ee No. 5:19

- cv
- 285

- LEK

- ML, Dkt. No. 15, at 5, 7 9
(N.D.N.Y. June 28, 2019) , EDC, Amerisure, and Selective subsequently entered 10
into a stipulation of discontinuance with respect to all claims against C&D , s ee No. 11

5:19

- cv
- 285

- LEK

- ML, Dkt. No. 28 (N.D.N.Y. Dec. 16, 2019). The fact that 12
Amerisure is attempting to resurrect abandoned inde mnity

- related claims for the 13
first time on appeal underscores why judicial economy

— the principle animating 14
Century Surety

— undercuts Amerisure’s position here

. 15
Second, and more importantly, the Atkinson c ourt affirmatively held that the 16
indemnity provis ion is void under Virginia law. See Atkinson v. Eilerson 17
Development Co rp . a/k/a EDC , N.Y. Sup. Ct., Onondaga Cty

. , Index No. 004808/2018, 1818 Docket No. 354, at 4

– 10, 26

– 2 8 (holding that the indemnity provision is void under 1
§ 11

- 4.1 of the Virginia Code on public policy grounds because the provision does 2
not contain an exception for EDC’s negligence). EDC initially appealed but 3

abandoned this appeal after the parties settl ed in August 2022. Amerisure 4

suggests that it is not bound by the Atkinson c ourt’s determination regarding the 5
validity of the indemnity provision because it was not a party to that litigation. 6
But Amerisure provides no support for this as sertion and, in any case, offers no 7
credible reason why we would reach a different conclusion than the Atkinson c ourt 8
if we were to assess the validity of the indemnity provision anew. Amerisure’s 9
sole argument regarding the validity of the indemnity agreement is that N ew York 10
law, not Virginia law, should apply in construing the Subcontract. But as we 11

earlier explained , Virginia law applies to disputes arising from the terms of the 12

Subcontract. 13

Under these circumstances, we conclude that Century Surety is 14
distinguishable, that Amerisure’s indemnity argument fails, and that a traditional 15
priority of coverage analysis should prevail here . That traditional priority of 16
coverage analysis, for the rea sons described above, plainly shows that the 1719 Amerisure CGL policy is primary to the Selective u mbrella policy . Accordingly, 1

we affirm the district court as to this issue

. 2

* * * 3
For the foregoing reasons, the judgment of the district court is AFFIRMED. 4

FOR THE COURT: 5 C ATHERINE O’HAGAN WOLFE, Clerk of Court 6