* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

FEB 11 2000

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

HOSPITAL CASUALTY

COMPANY OF OKLAHOMA,

an Oklahoma Corporation,

Plaintiff-Appellant,

v.

PHARMACISTS MUTUAL

INSURANCE COMPANY,

an Iowa Corporation,

Defendant-Appellee.

No. 99-6106

(D.C. No. 98-CV-1578)

(W.D. Okla.)

ORDER AND JUDGMENT *

Before BALDOCK , HENRY , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.
-2-

Hospital Casualty Company (HCC) brought suit against Pharmacists Mutual

Insurance Company (PM) following HCC’s payment of a settlement reached in a

separate action filed against pharmacist Allan Hale and others. Mr. Hale was an

additional insured in his employer’s policy with HCC, and had also purchased an

individual insurance policy from PM. HCC’s suit against PM contended that PM,

not HCC, was the primary insurer for the loss, and sought contribution from PM

for the settlement payment, as well as costs and attorney’s fees. 

On cross-motions for summary judgment, the district court concluded that

HCC’s policy was primary and entered judgment for PM. HCC now appeals. 

“We review the district court’s grant of summary judgment de novo,” applying the

same standards as that court pursuant to Fed. R. Civ. P. 56(c). Anderson v. Coors

Brewing Co. , 181 F.3d 1171, 1175 (10th Cir. 1999). Because the parties agree

that no material facts are in dispute, we determine only “whether the district court

correctly applied the substantive law.” Simms v. Oklahoma ex rel. Dep’t

of Mental Health & Substance Abuse Servs. , 165 F.3d 1321, 1326 (10th Cir.),

cert. denied , 120 S. Ct. 53 (1999).

On appeal, HCC argues that the district court erred in concluding that its

policy was primary because: 1) PM’s policy had a boilerplate escape clause which

lacks the specificity of HCC’s “other insurance” clause, 2) PM’s policy did not

require Mr. Hale to maintain an underlying primary policy, 3) Mr. Hale did not
-3-

pay the premiums for the HCC policy, 4) the district court wrongly relied on the

intent of PM, 5) the district court wrongly relied on an unpublished,

distinguishable, case from the District of Minnesota, and 6) the language of the

two policies demonstrates that PM’s policy is primary. 

After careful review of the record on appeal and the parties’ briefs in light

of the applicable law, we conclude that the district court correctly decided this

case. Therefore, for substantially the same reasons set forth in the district court’s

order dated February 2, 1999, the judgment of the United States District Court

for the Western District of Oklahoma is AFFIRMED.

Entered for the Court

Robert H. Henry

Circuit Judge