Certain Underwriterts at Lloyd's v. AXA Coirporate Solutions CA2/2

Filed 2/5/15 Certain Underwriterts at Lloyd’s v. AXA Coirporate Solutions CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

CERTAIN UNDERWRITERS AT B251997 LLOYD’S LONDON et al., (Los Angeles County Plaintiffs and Appellants, Super. Ct. No. PC053898)

v.

AXA CORPORATE SOLUTIONS ASSURANCE et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los Angeles County. Burt Pines, Judge. Affirmed. Yukevich Cavanaugh, James J. Yukevich, Raymond H. Hua, Bryan C. Zaverl; Bates Carey, Matthew M. Murphy for Plaintiffs and Appellants. Mintz Levin Cohn Ferris Glovsky and Popeo, Abigail V. O’Brient, Victor F. Mustelier for Defendants and Respondents.

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A French insurance company insures a train operator under a contract selecting France as the forum for “[a]ny litigation regarding the application of th[e] contract.” When the train operator is involved in an accident but the insurance company refuses to pay anything into the common fund to compensate the accident’s victims, are the insurers who did pay into the fund and who sue the French insurance company for contribution bound by the contract’s forum selection clause? We conclude that they are, and affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND Tragedy struck in 2008 when a Metrolink commuter train collided with a Union Pacific freight train near Chatsworth, California, killing two dozen people and injuring many more. Connex operated the Metrolink train and employed the train’s driver. Metrolink filed an interpleader lawsuit in federal court to create a $200 million fund for the accident’s victims—the maximum amount under federal law. (49 U.S.C. § 28103, 1 subd. (a)(2).) Lloyds of London, Indian Harbor Insurance Company, Steadfast Insurance Company, and Aspen Insurance UK Limited (collectively, plaintiffs) insured Metrolink and Connex at the time of the accident. Defendant AXA Corporate Solutions Assurance (AXA) separately insured Connex, through its French parent company in a French- language insurance contract (AXA Policy). Plaintiffs all contributed to the fund, but AXA refused. Plaintiffs put in more than their proportional share to fund the full $200 million, and the victims were compensated from the fund. Plaintiffs sued AXA in Los Angeles Superior Court for contribution and subrogation, seeking to compel AXA to pay its fair share of the fund. AXA moved to stay or dismiss the action based on forum non conveniens. In particular, AXA argued that (1) the forum selection clause contained in AXA Policy designated France as the forum for any litigation, and (2) even absent a clause, the balance of equitable