Connecticut General Life Insurance v. New Images of Beverly Hills , 257 F. App'x 49 ( 2007 )

MEMORANDUM^**

Connecticut General appeals the order of the district court declaring its $2.9 million judgment against Haya Zilka satisfied and ordering Connecticut General to refund excess payments. We have jurisdiction under 28 U.S.C. § 1291, and reverse and remand.

The court improperly credited Zilka with the full amount of Connecticut General’s settlements with seven other settling defendants without undertaking an independent allocation of the settlement payments. Sims v. DeArmond, 42 F.3d 1181 (9th Cir.1994). Here, the underlying fraud was perpetrated at ten separate surgery clinics over a five-year period. The seven settling defendants engaged in fraudulent activities at different clinics and at different times; Zilka was a participant only at Westwood and only during part of the time that the fraud was occurring there. The judgment was for damages suffered on account of Zilka’s activities at Westwood. This suggests that not all of the settlement payments overlap or are in common with the Zilka judgment. In these circumstances, Sims requires the court to attempt an allocation whether or not the settling parties themselves have done so. Sims, 42 F.3d at 1185.

This is not a situation where there is a single discrete injury, or where it appears impossible on the face of things for the court to make an allocation. Cf. In re Zelis, 66 F.3d 205, 210 (9th Cir.1995) (noting that there was no way to allocate the settlement absent an allocation by the parties). Nor does it matter that Connecticut General did not seek a good faith hearing; this case does not involve contribution, and Connecticut General in any event is entitled to collect damages from each of those jointly and severally liable. Finally, Zilka’s objections to the extent of liability assessed based on violations of the Racketeering Influenced and Corrupt Organizations Act have no merit as participants in a RICO conspiracy are liable for the actions of their coconspirators. 18 U.S.C. § 1962(d).

Accordingly, we reverse and remand for the district court to attempt to allocate the settlements of the other settling defendants.

REVERSED AND REMANDED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.