Cargill, Inc., a Corporation and St. Paul Fire & Marine Insurance Co. v. Commercial Union Insurance Co. And Huffman Towing Company, a Corporation

889 F.2d 174
CourtCourt of Appeals for the Eighth Circuit
DecidedDecember 12, 1989
Docket88-2706
StatusPublished
Cited by14 cases

This text of 889 F.2d 174 (Cargill, Inc., a Corporation and St. Paul Fire & Marine Insurance Co. v. Commercial Union Insurance Co. And Huffman Towing Company, a Corporation) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cargill, Inc., a Corporation and St. Paul Fire & Marine Insurance Co. v. Commercial Union Insurance Co. And Huffman Towing Company, a Corporation, 889 F.2d 174 (8th Cir. 1989).

Opinions

BRIGHT, Senior Circuit Judge.

Commercial Union Insurance Company (Commercial Union) appeals the district court's judgment, in a case tried with the consent of the parties before a magistrate, requiring Commercial Union, as the insurer of a shipment of grain that was lost when a barge sank, to respond for the entire amount of the grain lost. Commercial Union contends that because St. Paul Marine & Fire Insurance Company (St. Paul) also insured the cargo and because both policies contained “other insurance” clauses, the magistrate erred and the loss should be shared by the two insurers in proportion to the total amount of coverage provided by each policy, without considering any amounts deductible under either policy. For the reasons stated below, we reverse and remand and direct that the two insurers share in the loss as set forth in this opinion.

I. BACKGROUND

The parties stipulated the facts. In May of 1984, Cargill, Inc. (Cargill) and Huffman Towing Co. (Huffman) entered into an agreement for the shipment of a barge load of grain owned by Cargill from Council Bluffs, Iowa, to Terre Haute, Louisiana. As part of this agreement, Huffman promised to fully insure the cargo from the time of loading until the time of unloading. To fulfill its promise, Huffman obtained a policy from Commercial Union that afforded cargo insurance coverage for Cargill’s grain. Cargill already had a separate policy with St. Paul covering the grain. After the grain was loaded onto Huffman’s barge, but prior to shipment, the barge sank and the grain was lost. The parties stipulated the loss to be $194,158.07.

Cargill submitted a claim to Huffman for its lost cargo and Huffman reported the claim to its marine insurance broker, which forwarded the claim to Commercial Union. Commercial Union initially took the position that its policy did not cover the loss and declined coverage. Cargill then submitted the claim to St. Paul, which paid Cargill $94,157.07, representing the amount of the loss minus $100,000 deductible under St. Paul’s policy.

Commercial Union later determined that its policy covered Cargill’s loss. As a re-[177]*177suit, Commercial Union paid Cargill $90,-000, representing the unpaid balance of the claim minus $10,000 deductible under Commercial Union’s policy. Huffman paid the remaining $10,000 of Cargill’s claim. Thus, despite Cargill’s status as the named party in this action, St. Paul stands as the real party in interest.

Each policy contained an “other insurance” clause disclaiming liability when other insurance covered the loss. The “other insurance” clauses read as follows:

COMMERCIAL UNION

“If there is any other insurance covering the property insured hereunder which in absence of this insurance would cover the loss or damage hereby covered, then the Assurer shall not be liable hereunder for more than the excess over and above the amount collectable from such other insurance .... ”

ST. PAUL

“On all shipments moving under insured bills-of-lading issued by others, or where others have agreed to insure, it is mutually understood and agreed that the insurance provided under this policy is secondary and contingent.”

The parties consented to trial before a magistrate under 28 U.S.C. § 636(c) (1982 & Supp. V 1987) on an agreed stipulation of facts and on cross motions for summary judgment. The insurers agreed that both policies covered the loss and that both policies contained “other insurance” clauses. Commercial Union, however, contended that the “other insurance” clauses conflicted irreconcilably and that the loss should be prorated between the policies based on the proportion that the policy limit of each ($600,000 for Commercial Union and $2,600,000 for St. Paul) bears to the total insurance. Cargill maintained that the policies could be reconciled in such a way that Commercial Union respond for the entire loss.

The magistrate found in favor of Cargill but not on the theory advocated by either party. The magistrate held that the existence of other insurance transformed the Commercial Union policy from a property insurance policy into a liability insurance policy, thereby rendering inapplicable Commercial Union’s “other insurance” clause. In the alternative the magistrate held that the “other insurance” clauses were reconcilable and that Commercial Union should respond for the entire loss. The magistrate also held that Commercial Union must pay prejudgment interest. This appeal followed.

II. DISCUSSION

A. “Other Insurance” Clauses

This case involves competing “other insurance” clauses. An “other insurance” clause represents an attempt on the part of an insurer to limit its liability where two or more policies cover the loss. There are three types of “other insurance” clauses: “excess” clauses, “pro rata” clauses and escape clauses. An “excess” clause provides that where other insurance covers the loss, the “excess” policy covers only liability above the maximum coverage of the primary policy. 8A J. Appleman & J. Appleman, Insurance Law and Practice § 4909 (rev. vol. 1981). A “pro rata” clause provides that where other insurance covers the loss, the “pro rata” policy covers only some pro rata share of the total loss. Id. § 4908. An escape clause provides that coverage ceases where other insurance covers the loss. Id. § 4910. Because the parties in this case agree that both policies cover the loss, the case turns upon whether the “other insurance” clauses at hand can be reconciled so that one insurer responds for the entire amount of the loss and the other insurer’s coverage is deemed excess, or whether the loss must be shared by the two insurers. .This in turn will depend on the types of “other insurance” clauses involved.

The magistrate treated the other insurance clauses as a secondary issue. Primarily, the magistrate reasoned that Commercial Union’s coverage for property loss became liability insurance coverage.1 The [178]*178magistrate then concluded that Commercial Union’s “other insurance" clause did not apply because the two policies covered different risks.

St. Paul concedes that in this respect the magistrate erred. The magistrate’s reasoning contains at least two flaws. First, if Commercial Union’s insurance were liability insurance, then Commercial Union could not be liable prior to a determination that Huffman bears legal responsibility for the lost cargo. Second, the magistrate’s reading rendered Commercial Union’s “other insurance” clause illusory. Under the magistrate’s interpretation, Commercial Union would be precluded from taking advantage of its “other insurance” clause whenever other property insurance existed, because the other insurance would automatically transform Commercial Union’s property insurance into liability insurance. For these reasons, we reject the magistrate’s primary holding.

Commercial Union argues that the magistrate also erred by alternatively holding that the “other insurance” clauses were reconcilable in favor of St. Paul. Commercial Union contends that the clauses are mutually repugnant and that the loss should be prorated between the two parties based on the proportion that the policy limit of each bears to the total insurance.

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Bluebook (online)
889 F.2d 174, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cargill-inc-a-corporation-and-st-paul-fire-marine-insurance-co-v-ca8-1989.