Reliance Insurance v. Liberty Mutual Fire Insurance

13 F.3d 982
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 14, 1994
DocketNo. 93-1125
StatusPublished
Cited by8 cases

This text of 13 F.3d 982 (Reliance Insurance v. Liberty Mutual Fire Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Reliance Insurance v. Liberty Mutual Fire Insurance, 13 F.3d 982 (6th Cir. 1994).

Opinion

SUHRHEINRICH, Circuit Judge.

Plaintiff Rebanee Insurance Company (“Rebanee”) has sued defendant Liberty Mu[983]*983tual Fire Insurance Company (“Liberty”) seeking a declaratory judgment of Liberty’s liability arising out of a fire which destroyed a building both companies insured. The district court, on the parties’ cross-motions for summary judgment, entered summary judgment in favor of Liberty. Reliance filed a timely notice of appeal and we AFFIRM.

I.

The Jewish Federation Apartments (“JFA”) and DeMaria Building Company (“DeMaria”) entered into a construction contract for the building of an apartment complex. This contract provided that JFA and DeMaria agreed to waive “all rights against ... each other ... for damages caused by fire ... to the extent covered by property insurance obtained pursuant to the [agreement.]” The contract further provided that JFA would purchase “an all risk policy and would insure against the perils of fire.” Despite this contractual allocation of risks, both JFA and DeMaria purchased “builder’s risks” policies to cover the complex during the construction period.- JFA purchased its policy from Reliance and DeMaria purchased its policy from Liberty. Neither named the other as an additional insured or loss payee.

On August 11, 1989, a fire partially, destroyed the complex, causing approximately $182,000 in damages. Both parties reported the loss to their respective insurers. Both insurers investigated the incident and determined that losses were payable. Reliance paid JFA’s claim in the amount of $181,-347.68 and, apparently, JFA used the proceeds to fund repairs. Because JFA, by contract, made good the losses, DeMaria informed Liberty that it was not pursuing its claim. Consequently, Liberty paid no part of the loss.

Reliance sued DeMaria in state court, claiming subrogation to JFA’s rights against DeMaria for its negligence and breach of contract. The Michigan trial court ruled in favor of DeMaria on the grounds that, because JFA had contractually waived any rights against DeMaria, suit by Reliance — as JFA’s subrogee — was also barred.

Reliance now sues Liberty, DeMaria’s insurer. Reliance seeks a declaratory judgment that Liberty must indemnify it for the full $181,347.68 or, in the alternative, that Liberty owes contribution in the amount of fifty percent of the loss paid, .not to exceed Liberty’s policy limits, or a pro rata share of the loss paid in relation to each insurer’s respective limits. In its first count, Reliance seeks such recovery, apparently, under theories of subrogation and/or contribution. In additional counts, Reliance relies upon third-party-beneficiary and waiver/estoppel theories. The district court held that the facts were not in dispute and that Liberty was not liable for any part of the monies that Reb-anee was contractually obligated to pay, and did pay, to JFA. On appeal, Reliance abandons its subrogation, third-party-beneficiary, and waiver/estoppel claims, and urges reversal only on the grounds that the district court’s disposition of its contribution claim was in error.

II.

Reliance’s claim for contribution is entirely without merit. It is well-established that contribution among insurance companies is available where “all insurers are equally liable for the discharge of a common obligation.” Couch on Insurance 2d § 62:151 (1983) (hereinafter, “Couch”). Such “double coverage,” however, only exists where “both policies were on the same property, on the same interest in the property, against the same risks, and payable to the same parties.” Lubetsky v. Standard Fire Ins. Co., 217 Mich. 654, 187 N.W. 260 (1922).

Here, Reliance’s policy protected JFA’s interest ownership interest in the complex and was payable only to JFA (or to HUD as its interest appears). DeMaria is not mentioned. Similarly, Liberty’s policy protects only DeMaria’s contractual interests in completing and delivering the complex. JFA is not mentioned in DeMaria’s policy. The property and the risks are the same in both policy. The interests are different. There can be no right of contribution. See Lubetsky, 187 N.W. at 261 (“insurance which is obtained by a third person and upon another distinct and insurable interest cannot be re[984]*984garded as ‘other insurance’ ”) (quoting Niagara Fire Ins. Co. v. Scammon, 144 Ill. 490, 28 N.E. 919 (1891)).

A.

Reliance cites no authority for the proposition that an insurance contract which insures only a property owner’s interest insures the “same interest” as a policy which only insures a contractor’s interest. Not surprisingly, our research has similarly failed to produce any such authority. In fact, what authority there is on this issue appears to be unanimously to the contrary. See, e.g., McCoy v. Continental Ins. Co., 326 Mich. 261, 40 N.W.2d 146, 149-50 (1949) (vendor’s policy and vendee’s policy “were on the same property and against the same risks but on different interests and payable to different parties” and, thus, proration between insurers was not proper); Dietzel v. Patrons’ Mut. Fire Ins. Co. of Michigan, 232 Mich. 415, 205 N.W. 149, 150 (1925) (brothers’ insurer liable for 100% of loss under policy issued to two brothers jointly, even though there was other insurance issued to one of the brothers separately, because second policy was not for the benefit of “the brothers”); Lubetsky, 187 N.W. at 261 (same); Smith v. American Ins. Co., 177 Mich. 123, 143 N.W. 54, 56 (1913) (vendor’s insurer liable for 100% of loss under policy, even though property was also covered by vendee’s policy, because the interests insured were separate and distinct); State Farm Fire & Casualty Co. v. Farmers Ins. Exch., 80 Mich.App. 567, 264 N.W.2d 62, 63-64 (1978) (contribution required between vendor’s and vendee’s insurers solely because loss was made payable in each policy to the same mortgagee and loss was, in fact, paid to that mortgagee).

We have found a few cases from other jurisdictions involving nearly identical facts and, in each, contribution — or proration— was denied. In Lititz Mut. Ins. Co. v. Lengacher, 248 F.2d 850 (7th Cir.1957), a property owner and his building contractor each insured their interest in a construction project with different insurers. When fire destroyed the incomplete building, owner’s insurer sought contribution from contractor’s insurer. The court held that “the two insurance companies insured separate and distinct interest in the same property and plaintiff is not entitled to have the loss prorated.” Id. at 854. Accord M.F.A. Mut. Ins. Co. v. Farmers & Merchants Ins. Co., 443 S.W.2d 220, 223 (Mo.Ct.App.1969) (“There can be no contribution between fire insurers unless insurance was concurrent, that is, ... in favor of the same party.”) (quoting Couch § 62.-166).

In short, our response to Reliance’s attempt to counter such a line of authority can be expressed in no better words than those employed by the Missouri Supreme Court:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
13 F.3d 982, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reliance-insurance-v-liberty-mutual-fire-insurance-ca6-1994.