Fremont Indemnity Co. v. New England Reinsurance Co.

799 P.2d 862, 165 Ariz. 521, 58 Ariz. Adv. Rep. 74, 1990 Ariz. App. LEXIS 131
CourtCourt of Appeals of Arizona
DecidedApril 10, 1990
DocketNo. 2 CA-CV 89-0237
StatusPublished
Cited by1 cases

This text of 799 P.2d 862 (Fremont Indemnity Co. v. New England Reinsurance Co.) 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
Fremont Indemnity Co. v. New England Reinsurance Co., 799 P.2d 862, 165 Ariz. 521, 58 Ariz. Adv. Rep. 74, 1990 Ariz. App. LEXIS 131 (Ark. Ct. App. 1990).

Opinions

OPINION

LACAGNINA, Judge.

This appeal involves the respective liability of Fremont Indemnity Company and New England Reinsurance Company arising from policies of insurance covering claims of legal malpractice made while both policies were in effect. The trial court decided cross-motions for summary judgment in favor of New England, requiring each company to pay one-half of a settlement made with the claimant after required deductibles and one-half of the cost of defense, based on its finding that the Fremont policy was ambiguous and that because the “other insurance” provisions of each policy could not be reconciled and were mutually repugnant, each provided primary coverage on a 50/50 pro rata basis.

We disagree with the trial court, finding the Fremont policy is not ambiguous when read in its entirety and does not cover the claim of malpractice except for its share of the cost of defense and the uncovered deductible required by the New England policy.

FACTS

An attorney employed by Lawfirm # 1 in 1982 was sued in May 1985, along with the lawfirm, by a client alleging malpractice committed in 1982. The conduct was covered by a professional liability policy issued by New England to Lawfirm # 1 effective [522]*522October 1984 to October 1985. The attorney, after 1982, became a partner in Law-firm # 2 and was covered by a policy issued by Fremont to Lawfirm # 2, effective November 1984 to November 1985.

Fremont defended the attorney with a reservation of rights, and New England denied coverage. The underlying malpractice action was settled. Fremont paid the deductible required by the New England policy and, without prejudice to its claim of no coverage, the balance of the settlement was shared equally by Fremont and New England. New England paid one-half the cost of defense. Fremont then sued New England, alleging that New England was liable for the entire settlement above the deductible because its policy only covered indemnification for the deductible required by the New England policy and that the other insurance clause of its policy only provided excess over the coverage of the New England policy. The limits of the New England policy exceed the amount of the settlement.

STANDARD OF REVIEW

There are no disputed material questions of fact; therefore, we review the judgment of the trial court to determine whether it correctly applied the law to the facts. We are not bound by the trial court’s conclusions of law and make our own independent determination of the legal issues presented by the undisputed facts. TCC Enterprises v. Estate of Erny, 149 Ariz. 257, 717 P.2d 936 (App.1986); Arizona Laborers, Teamsters v. Hatco, Inc., 142 Ariz. 364, 690 P.2d 83 (App.1984).

FREMONT’S POLICY PROVISIONS

Relevant provisions of the Fremont policy provide the following:

INSURING AGREEMENTS
COVERAGE — PROFESSIONAL LIABILITY AND PERSONAL INJURY:
To pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages as a result of claims first made against the Insured or any person for whose acts the Insured is legally liable:
A) by reason of any act, error or omission in professional services rendered or which should have been rendered by the Insured or the Insured’s employees in the conduct of the Insured’s profession as a Lawyer____

III. TERRITORY AND CLAIMS-MADE PROVISIONS:

This Policy applies to acts, errors, omissions or personal injuries which occur anywhere in the world:
A) during the Policy period and then only if claim is first made during the Policy period, or
B) prior to the effective date of the Policy, provided that:
2) there is no other valid and collectible insurance available to the Insured for any such prior act, error, omission or personal injury; and
3) claim is first made against the Insured during the Policy period.
CONDITIONS
II. OTHER INSURANCE:
If the Insured has other insurance against a loss covered by this Policy, the Company shall not be liable under this Policy for a greater proportion of such loss than the Limit of Liability stated in the Declarations bears to the total limit of liability of all valid and collectible insurance against such loss. However, with respect to professional services rendered prior to the effective date of this Policy, the 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. (Emphasis added).

[523]*523The insuring agreement and conditions are not ambiguous. Fremont agrees to provide coverage for acts that were committed prior to the inception of its policy only if not covered by other insurance. If the other insurance is insufficient, then it agrees to provide excess coverage.

No legislative or other public policy objectives are involved under the facts of this case; therefore, general principles of contract law govern the interpretation of the policy. We adopt the principles of construction enunciated in National Union Fire, Ins. Co. v. Rick, 134 Ariz. 122, 654 P.2d 56 (App.1982):

The construction of an insurance contract is a question of law for the court, Coombs v. Lumberman’s Mutual Casualty Company, 23 Ariz.App. 207, 531 P.2d 1145 (1975), and courts should enforce the insurance contract as made. The insurer should be required to pay damages only on claims intended to be insured against and to answer only for risks intended to be assumed. Queen Insurance Co. v. Watson, 31 Ariz. 340, 253 P. 440 (1927); Harbor Ins. Co. v. United Services Auto Ass’n, 114 Ariz. 58, 559 P.2d 178 (App.1976). It is not the prerogative of the court to create ambiguities where none exist or to rewrite the contract in an attempt to avoid harsh results.

Id. 134 Ariz. at 128, 654 P.2d at 62. Because the terms and conditions of Fremont’s policy are clear and unambiguous, we must enforce them as written in order to avoid imposing on it a contractual liability not assumed by the insuring agreement. Traveler’s Indemnity Co. v. State, 140 Ariz. 194, 680 P.2d 1255 (App.1984); see Kepner v. Western Fire Ins. Co., 109 Ariz. 329, 509 P.2d 222 (1973).

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Related

Fremont Indemnity Co. v. New England Reinsurance Co.
815 P.2d 403 (Arizona Supreme Court, 1991)

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Bluebook (online)
799 P.2d 862, 165 Ariz. 521, 58 Ariz. Adv. Rep. 74, 1990 Ariz. App. LEXIS 131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fremont-indemnity-co-v-new-england-reinsurance-co-arizctapp-1990.