Insurance Co. of North America v. Fireman's Fund Insurance Co.

471 S.W.2d 878, 1971 Tex. App. LEXIS 2438
CourtCourt of Appeals of Texas
DecidedSeptember 23, 1971
DocketNo. 15797
StatusPublished
Cited by3 cases

This text of 471 S.W.2d 878 (Insurance Co. of North America v. Fireman's Fund Insurance Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Insurance Co. of North America v. Fireman's Fund Insurance Co., 471 S.W.2d 878, 1971 Tex. App. LEXIS 2438 (Tex. Ct. App. 1971).

Opinion

PEDEN, Justice.

Suit between insurers to determine their respective liability under their personal property insurance policies. Each policy contains an “other insurance” clause which provides that under certain circumstances its coverage is to be considered as excess insurance. Both insurers filed motions for summary judgment. The trial court granted that of the appellee and denied that of the appellant.

The parties entered into this stipulation in the trial court:

“Effective November 15, 1967, Fireman’s Fund Insurance Company issued to Dresser Industries, Inc., (Dresser) its ‘Inland/Multi Peril Binder’ (the Fund Policy), a true copy of which is attached and marked Exhibit ‘A’.
“Effective September 19, 1967, Insurance Company of North America, Centennial Insurance Company, The Fidelity & Casualty Company of New York and Federal Insurance Company jointly issued to Dresser their ‘Marine Combined Policy of Insurance’ (the Wortham Policy), a true copy of which is attached and marked Exhibit ‘B’. The respective participations of such insurance companies issuing the Wortham Policy is shown on said Exhibit.
“Neither the Fund Policy nor the Wortham Policy had been cancelled or otherwise terminated as of December 17, 1967, and both were in full force and effect on December 17, 1967.
“Prior to December 17, 1967, Dresser had contracted with Shell Oil Corporation to fabricate and sell to Shell Oil Corporation certain gas engine driven compressor packages designed to be used on offshore oil production platforms. A true copy of this contract is attached hereto as Exhibit ‘C’. On December 17, 1967, one of such compressor packages (the same being known as Dresser’s Job No. 10409) was in process of fabrication but not completed and was located on a barge floating in a slip at Jacinto Port, Houston Ship Channel, Texas. At such time and place the barge capsized causing the compressor package and its component parts to fall into the water and sustain substantial damage.
“For its loss so sustained Dresser made claim under both the Fund Policy and the Wortham policy.
“The respective insurance companies issuing such policies were not in agreement and are not now in agreement as to whether each of such policies should contribute thereto or whether one or the other afforded primary insurance and the other excess insurance so that the primary policy should be exhausted before the excess policy was called upon to contribute to the loss; or, if neither of said policies was an excess policy, as to the manner in which such policies should contribute to said loss under the terms of such policies.
“Dresser agreed to accept the sum of Five Hundred Seventy-five Thousand and no/100 ($575,000.00) Dollars in payment of such loss. In order to avoid litigation with Dresser and so that the respective insurance companies could resolve their differences without putting Dresser to further trouble or expense, the respective insurance companies issuing such policies agreed among themselves that the amount of such loss was in fact Five Hundred Seventy-five Thousand and no/100 ($575,000.00) Dollars and paid to Dresser the sum of Five Hundred Seventy-five Thousand and no/100 ($575,000.00) Dollars and secured its release of them from all claims arising against them because of such loss. Without regard to what their respective liabilities, if any, might be and without [880]*880regard to what amounts, if any, might be. payable by each of them under their policies but simply in order to make the funds available with which to pay such sum of Five Hundred Seventy-five Thousand and no/100 ($575,000.00) Dollars to Dresser, the insurance Companies advanced and put into the fund with which to pay Dresser the amounts set opposite their respective names below:
Fireman’s Fund Insurance Company $287,500.00
Insurance Company of No.
America 143,750.00
Centennial Insurance Company 57,500.00
Fidelity & Casualty Co. of N. Y. 57,500.00
Federal Insurance Company 28,750.00
“These payments were made by such insurance companies under an agreement which is attached hereto as Exhibit ‘D’, and incorporated by reference herein.”

We will refer to the two policies as the parties have in their briefs: the appellant’s is “the I N A policy” and the appellee’s is “the Fund policy”.

The “other insurance” clauses, both of which are “excess clauses”, are as follows: From the Fund policy:

“Other Insurance — This policy does not attach to or become insurance against any peril upon property herein described, which at the time of any loss is covered by other insurance (meaning insurance in the name of the insured but not written upon the identical plan, terms, conditions and provisions contained in this policy) until the liability of such other insurance has been exhausted, and then shall cover only such loss as may exceed the amount due from such other insurance (whether collectible or not) * * ⅜ f}

From the I N A policy:

“Other Insurance: It is understood and agreed that where any specific insurance exists in the name of the Assured on property insured hereunder, this insurance shall be considered as excess insurance and shall not apply or contribute to the payment of any loss until the amount collectible from all such specific insurance shall have been exhausted. * * * >t

It is clear from an examination of the two policies that the I N A policy is not written upon the identical plan, terms, conditions and provisions contained in the Fund policy, so the condition provided in the Fund policy for invoking its excess clause has been met.

If the execss clause in the I N A policy is to be invoked the Fund policy must afford specific insurance for the loss in question.

For a discussion of the factors involved in resolving conflicts between “other insurance” clauses in concurrent automobile liability policies, see Hardware Dealers Mutual Fire Insurance Co. v. Farmers Insurance Exchange, 444 S.W.2d 583 (Tex.Sup.1969).

The Fund policy is on a form entitled “Multi-Peril Commercial Property Floater Non-Reporting Form”. It covers personal property. The insuring agreement recites that the policy is extended to insure against all risks of direct physical loss or damage from any external cause to the property covered while anywhere within the 48 contiguous states of the United States of America, the District of Columbia and Canada and in due course of transit within and between such places, and between such places and the Dominion of Canada, subject otherwise to all of the provisions and stipulations of the policy to which this form is attached including endoresments thereon, except as hereinafter provided.

It states that the property covered is: Item A — On stock, materials and supplies of every description usual or incidental to the operations of the Insured, consisting principally of industrial products of the Insured including the Insured’s interest in [881]

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Bluebook (online)
471 S.W.2d 878, 1971 Tex. App. LEXIS 2438, Counsel Stack Legal Research, https://law.counselstack.com/opinion/insurance-co-of-north-america-v-firemans-fund-insurance-co-texapp-1971.