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National Bank of Arizona v. St. Paul Fire and Marine Insurance Co.3/16/1999
r at risk of having to indemnify any director or officer. Cf. Vitkus v. Beatrice Co., 127 F.3d 936, 944 (10th Cir. 1997) (D & O policy triggered where director incurred an obligation to pay). As a result, we find NBA's reliance on Safeway and Nordstrom misplaced.
Finally, NBA relies on Mutual Insurance Co. of Arizona v. American Casualty Co. of Reading, Pa., 189 Ariz. 22, 938 P.2d 71 (App. 1996). NBA contends that Mutual Insurance stands for the proposition that "facts, not pleadings control coverage." Mutual Insurance dealt with the issue of equitable contribution among overlapping insurers. There, more than one policy insured the same parties and same interests. Here, only one policy insures the directors and officers. Thus, there are no competing policies with overlapping coverages insuring the same parties and interests. Accordingly, we find Mutual Insurance distinguishable.
Both parties have requested their attorneys' fees and costs on appeal. Because St. Paul is the prevailing party, we exercise our discretion and award attorneys' fees to St. Paul under A.R.S. section 12-341.01. Therefore, attorneys' fees and costs will be awarded upon St. Paul's compliance with Arizona Rule of Civil Appellate Procedure 21(c).
III.
Because no claim was made against a director or officer, the D & O Policy was not triggered. Accordingly, we affirm the trial court's grant of summary judgment in favor of St. Paul.
MICHAEL D. RYAN, Presiding Judge
CONCURRING:
REBECCA WHITE BERCH, Judge
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