Pacific Indemnity Co. v. Federated American Insurance

499 P.2d 247, 7 Wash. App. 241, 1972 Wash. App. LEXIS 966
CourtCourt of Appeals of Washington
DecidedJuly 10, 1972
DocketNo. 780-1
StatusPublished
Cited by2 cases

This text of 499 P.2d 247 (Pacific Indemnity Co. v. Federated American Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pacific Indemnity Co. v. Federated American Insurance, 499 P.2d 247, 7 Wash. App. 241, 1972 Wash. App. LEXIS 966 (Wash. Ct. App. 1972).

Opinions

Horowitz, C.J.

— This appeal involves the application of the formula for contribution between two automobile liability insurers who insure the same risk. The formula was laid down in a prior declaratory judgment suit between the insurers. Pacific Indem. Co. v. Fedetated Am. Ins. Co., 76 Wn.2d 249, 456 P.2d 331 (1969).

At issue is the proper determination of the insurance policy limits of each policy issued by the insurers here insuring the same insured. The parties agreed that the determination should be made by motion and, in effect, on the basis of the record below. They make no different contention on appeal.

On February 12,1966, Wendy Bundt, was driving William Farrimond’s car while Farrimond was giving her driving [242]*242lessons. The car collided with another car occupied by Hettie Rush and Harold and Marion Louise Pike. Hettie Rush sued Farrimond and Bundt, and Harold and Marion Louise Pike did the same. The precise nature of the damages claimed and the precise basis of liability are not shown by the record. The insurers settled each lawsuit agáinst both Farrimond and Bundt and each insured was released from .liability in each case. Federated contributed $6,000 and Pacific contributed $4,000 toward the Rush settlement. Each insurer contributed $1,250 toward the Pike settlement. The order appealed from states:

[T]he parties intended and did in fact settle said cases on the theory and belief that if the Plaintiffs recovered judgment they would recover judgment against both Defendants; . . . and it was further the parties intention that said settlement would operate 'as a complete release and discharge of the liability or potential liability of Farrimond and Bundt in both cases.

Pacific also incurred $440 in attorney’s fees in the Pike case for which Federated reimbursed Pacific $220. The insurers, in making these several payments, agreed that the payments would be made “without prejudice to the rights of [the insurers] as they might ultimately be declared in the pending Declaratory Judgment action . . .”

At the time of the accident, Federated had issued an insurance policy naming William Farrimond as the insured and covering Wendy Bundt as a permissive insured. Part of Federated’s policy is in evidence; Pacific’s policy is not. A supplemental showing was made, however. According to an affidavit filed on behalf of Federated, its policy insured Farrimond “with $10,000 bodily injury coverage for injury to one person, $20,000 bodily injury coverage to two or more persons . . .” The trial court treated the showing made as meaning that Wendy Bundt, as a permissive insured under Federated’s policy, had the same insurance coverage as that provided for Farrimond. Federated does not contend otherwise. Pacific insured Wendy Bundt, its policy containing a limitation of liability for injury to one [243]*243person in the sum of $10,000. The record before us fails to show that Pacific insured Farrimond. In the declaratory judgment suit referred to and heretofore decided by the Supreme Court, Federated had not contended otherwise. Federated contended below, however, that Pacific’s policy covered Farrimond, but there is no record support for that contention and the trial court did not accept it. The record does not show whether Pacific’s policy, like Federated’s policy, had a $20,000 overall limitation for injuries to two or more persons; or whether, like Federated’s policy, Pacific provided property damage coverage of any kind. Nor does the record expressly show whether the Rush and Pike settlements included any amount for a possible claim for property damage to which Federated’s property damage insurance coverage would apply.

Pacific later brought an action for declaratory relief which was ultimately disposed of in Pacific Indent. Co. v. Federated Am. Ins. Co., supra. In that case the court held:

[T]hat Pacific and Federated are legally obligated to the limits of liability of their respective policies on a pro rata basis; and if
the limit of liability coverage of said two insurance companies are equal, then the two companies shall share equally the cost of defense and discharge of the legal responsibility of the said Wendy J. Bundt arising out of said automobile accident on February 12, 1966, up to the limits of liability of each policy.

76 Wn.2d at 251.

After the remittitur went down, Pacific filed a “Motion to Enter Judgment Pursuant to Declaratory Judgment Action” seeking contribution recovery from Federated. The trial court granted Pacific judgment for $2,112.24 after giving Federated credit for an offset not here in dispute. Federated appeals, claiming that, on the record, judgment should have been entered in its favor for $1,256.76.

Before examining Federated’s sole contention on which it seeks reversal, it is helpful to describe just how the trial court arrived at the amount of the judgment entered in [244]*244Pacific’s favor. The order expressly adjudged “That the total settlements in each case were paid one half on behalf of Farrimond and one half on behalf of Bundt.” The calculations resulting in the judgment entered follow the contribution theory just stated. Federated insured Farrimond’s liability to Rush and Pike, and Pacific did not do so. Accordingly, the trial court first deducted Farrimond’s share of each settlement, the share being fixed at one-half. There is no evidence that Farrimond was liable to each person injured in any greater or lesser amount than Wendy Bundt. Because, as already stated, Farrimond and Bundt in Federated’s policy each had insurance coverage in identical amounts, the court, in apportioning responsibility as - between Farrimond and Wendy Bundt in Federated’s policy, adopted the theory that equality is equity. That theory underlies the theory of pro rata sharing based on policy limits approved in Pacific Indem. Co. v. Federated Am. Ins. Co., supra.

The court, after deducting Farrimond’s half share of each settlement, treated Federated and Pacific as if their respective policies had equal applicable policy limits of $10,000 on the Wendy Bundt insurance risk. In conformity with the Pacific formula, the court then required each insurer to share half of the remaining settlement liabilities of each lawsuit. The court also required each insurer to share equally Pacific’s attorney’s fees incurred in the Pike settlement on behalf of Pacific’s insured Wendy Bundt. The court’s action with respect to the sharing of attorney’s fees was required both by Pacific Indem. Co. v. Federated Am. Ins. Co., supra, and Greater Seattle Youth for Christ v. Colonial Ins. Co., 76 Wn.2d 253, 456 P.2d 333 (1969). The foregoing calculations, after giving credit for payments made by each insurer, show a balance in Pacific’s favor of $2,369. Pacific owed Federated $256.76 for appeal costs in the prior declaratory judgment case. By offsetting such costs against $2,369, Pacific received judgment for the remaining balance of $2,112.24.

Federated contends the court’s application of the Pacific [245]*245formula on the record here involved is wrong. Federated’s sole claim for reversal and entry of judgment in its favor of $1,256.76 is based on the record before us,

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Related

Pacific Indemnity Co. v. Federated American Insurance
511 P.2d 56 (Washington Supreme Court, 1973)
Pac. Indem. Co. v. FED. AM. INS. CO.
511 P.2d 56 (Washington Supreme Court, 1973)

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Bluebook (online)
499 P.2d 247, 7 Wash. App. 241, 1972 Wash. App. LEXIS 966, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pacific-indemnity-co-v-federated-american-insurance-washctapp-1972.