Allstate Insurance v. Great American Insurance Companies

4 P.3d 991, 197 Ariz. 448, 316 Ariz. Adv. Rep. 57, 2000 Ariz. App. LEXIS 37
CourtCourt of Appeals of Arizona
DecidedMarch 7, 2000
DocketNo. 1 CA-CV 99-0374
StatusPublished
Cited by2 cases

This text of 4 P.3d 991 (Allstate Insurance v. Great American Insurance Companies) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allstate Insurance v. Great American Insurance Companies, 4 P.3d 991, 197 Ariz. 448, 316 Ariz. Adv. Rep. 57, 2000 Ariz. App. LEXIS 37 (Ark. Ct. App. 2000).

Opinion

OPINION

THOMPSON, Presiding Judge.

¶ 1 Allstate Insurance Co. (Allstate) appeals from a judgment declaring that liability coverage which Allstate provided to the insured for a motorboat accident was primary, while coverage that Great American Insurance Companies (Great American) provided to the insured for the same accident was excess. We hold that the other-insurance clauses in Allstate’s and Great American’s policies were reconcilable, not contradictory, and that prevailing Arizona case law accordingly does not require that they be disregarded in favor of allocating proportionate shares of liability between the two insurers.

[449]*449FACTUAL AND PROCEDURAL HISTORY

¶ 2 The facts were not disputed below. At all times material to the litigation, Delbert Leafty was covered under a Great American homeowner’s insurance policy with liability limits of $300,000. During the relevant period Greg Seal was covered under an Allstate boatowner’s liability policy with per-person liability limits of $100,000. Seal’s coverage under his Allstate policy extended to permissive operators of the covered motorboat.

¶3 On August 19, 1995, Seal permitted Leafty to operate his motorboat. Leland Burgess rode along as Leafty’s passenger. While Leafty was in control, an accident occurred in which Burgess was injured. Burgess brought a negligence action against Leafty. Allstate provided and paid defense counsel for Leafty. Burgess’s claim was ultimately settled for Allstate’s policy limit of $100,000.

¶ 4 Allstate and Great American each funded half the settlement amount under an agreement that permitted them to seek declaratory relief on the correct allocation of liability under their respective policies. Allstate sought allocation. On cross-motions for summary judgment, the trial court held that Allstate’s coverage was primary and Allstate thus bore liability for the entire settlement payment. Allstate timely appealed from judgment entered in accordance with the court’s ruling.

DISCUSSION

¶ 5 The other-insurance clause of Allstate’s boatowner’s policy provided:

If both this insurance and other insurance apply to a loss, we will pay our share. Our share will be the proportionate amount that the limits of this insurance bears to the total limits of all applicable insurance.

The other-insurance clause in Great American’s homeowner’s policy provided:

This insurance is excess over other valid and collectible insurance except insurance written specifically to cover as excess over the limits of liability that apply in this policy.

¶ 6 Allstate argues that these two other-insurance provisions conflict, and that under Fremont Indemnity Co. v. New England Reinsurance Co., 168 Ariz. 476, 815 P.2d 403 (1991), both must be disregarded and the loss allocated proportionately between the two insurers.

¶ 7 Allstate is mistaken. The other-insurance clauses do not conflict. This is not a situation like that in Fremont. The issue there, as it ultimately is here, was “whether the terms and conditions of both policies invoke the rules governing conflicting insurance clauses____” Id. at 477, 815 P.2d at 404. In Fremont one insurer’s policy provided:

[T]he insurance hereunder shall apply only as excess insurance over any other valid and collectible insurance and shall then apply only in the amount by which the applicable limit of liability of this Policy exceeds the sum of the applicable limit of liability of all such other insurance.

Id. at 479, 815 P.2d at 406. The other insurer’s policy provided:

This policy shall ... be in excess of any other valid and collectible insurance available to the Insured____

Id. at 480, 815 P.2d at 407. The court held that “a combined escape-excess clause and a true excess clause may not automatically cancel themselves out,” but “such clauses are sufficiently repugnant to require proration.” Id. This was so because:

When pitted against each other, the policies promote a circuitous debate in which each insurer, claiming that its policy must be read first, refuses to pay at all.
Our decision ... comports with the “growing weight of authority” construing escape devices as mutually repugnant to general excess clauses.

Id. at 480-81, 815 P.2d at 407-08 (citation and footnotes omitted). Accord State Farm Mut. Auto. Ins. Co. v. Bogart, 149 Ariz. 145, 149-50, 717 P.2d 449, 453-54 (1986) (escape clause and excess clause were mutually repugnant, “chas[ing] each other through infinity,” and loss had to be prorated between insurers).

[450]*450¶ 8 Unlike those at issue in Fremont and Bogart, Allstate’s and Great American’s other-insurance clauses can be applied at the same time according to their terms. They do not contradict one another. They are similar to the clauses given effect in Dairyland Mutual Insurance Co. v. Andersen, 102 Ariz. 515, 433 P.2d 963 (1967). In that case, one insurer’s clause, like Allstate’s, provided that the insurer would pay its proportionate share of the loss where other valid and collectible insurance applied. See id. at 516,433 P.2d at 964. The second insurer’s clause, like Great American’s clause in this case, provided that coverage for a non-owned vehicle was excess to any other insurance. See id. The court held that the two clauses could and would be applied as written. See id. at 517, 433 P.2d at 965.

¶ 9 Allstate argues that Andersen and Universal Underwriters Ins. v. Dairyland Mut. Ins. Co., 102 Ariz. 518, 520, 433 P.2d 966, 968 (1967) are distinguishable because the contest in each was between an excess clause and a simple pro-rata clause. In contrast, says Allstate, its own other-insurance clause is a “hybrid pro-rata/exeess” clause, because in addition to express pro-rata language it contained these words: “[T]his insurance will be excess over any other insurance that covers newly acquired water craft, non-owner water craft or temporary substitute water craft.” We cannot agree that Andersen and Universal are distinguishable on this ground. Nothing in the record suggests that Seal’s motorboat was newly acquired, or not owned by him, or a temporary substitute for another motorboat. Allstate has never contended that the “excess” component of its other-insurance clause actually applied on the facts of this case. As far as this controversy is concerned the other-insurance clauses at issue are legally indistinguishable from those on which Andersen and Universal were decided.

¶ 10 Allstate contends that Fremont and Bogart have superseded Andersen by abandoning Andersen’s reliance on interpreting other-insurance clauses according to the contracting parties’ intentions. To be sure, Bogart stated that in a contest between two liability insurers the intentions of the parties to the insurance contracts were irrelevant. See 149 Ariz.

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Bluebook (online)
4 P.3d 991, 197 Ariz. 448, 316 Ariz. Adv. Rep. 57, 2000 Ariz. App. LEXIS 37, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allstate-insurance-v-great-american-insurance-companies-arizctapp-2000.