Titan Indem. Co. v. American Justice Ins. Reciprocal

758 So. 2d 1037, 2000 Miss. App. LEXIS 93, 2000 WL 224797
CourtCourt of Appeals of Mississippi
DecidedFebruary 29, 2000
Docket1999-CA-00271-COA
StatusPublished
Cited by7 cases

This text of 758 So. 2d 1037 (Titan Indem. Co. v. American Justice Ins. Reciprocal) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Titan Indem. Co. v. American Justice Ins. Reciprocal, 758 So. 2d 1037, 2000 Miss. App. LEXIS 93, 2000 WL 224797 (Mich. Ct. App. 2000).

Opinion

758 So.2d 1037 (2000)

TITAN INDEMNITY COMPANY, Appellant,
v.
AMERICAN JUSTICE INSURANCE RECIPROCAL, Appellee.

No. 1999-CA-00271-COA.

Court of Appeals of Mississippi.

February 29, 2000.

*1038 Arthur F. Jernigan Jr., Clyde X. Copeland, Jackson, Attorneys for Appellant.

Rebecca B. Cowan, Jackson, Attorney for Appellee.

BEFORE McMILLIN, C.J., IRVING, AND THOMAS, JJ.

McMILLIN, C.J., for the Court:

¶ 1. This case involves a dispute between two liability insurance companies as to responsibility for costs incurred in defending a suit brought against the companies' insured. One company urges that the other's policy provided sole coverage for the claim based upon certain policy language. The other company contends that the two companies both provided coverage so that the defense costs should be shared pro rata based on applicable policy limits. The trial court, acting on summary judgment motions filed by both companies, found the competing policy provisions seeking to shift responsibility for the claim to the other company were mutually repugnant so that they canceled each other out. The court ordered the companies to share the costs of the defense pro rata. One of the companies, aggrieved by this determination, has appealed. Finding no error in the trial court's decision, we affirm.

I.

Facts

¶ 2. American Justice Insurance Reciprocal provided liability insurance to Franklin County covering its law enforcement activities. Near the end of the term of that policy, Franklin County obtained a second liability policy issued by Titan Indemnity Company. Though the Titan policy *1039 was apparently intended to replace the American Justice policy, which was not being renewed, there was a period of overlap in the coverage.

¶ 3. A liability claim for wrongful death was made against the county under circumstances that brought the claim within the coverage period of both the American Justice and the Titan policies. However, the Titan policy contained a provision that it would not cover an event if there was in existence a prior policy that provided coverage for the same event. The full relevant text of that provision in the Titan policy is as follows

It is hereby agreed and understood that PART III—WHAT THIS AGREEMENT COVERS will not apply to any "personal injury" or "property damage" which occurred after the [date of coverage], if prior to the effective date of this policy ... there is a prior policy or policies which provide insurance for such incident or occurrence whether or not the available limits of liability of such prior policy or policies are sufficient to pay and whether or not the deductible provisions and amount of such prior policy or policies are different from this policy and whether or not such prior policy or policies are collectible in whole or part.

¶ 4. American Justice's policy, for its part, contained an "other insurance" provision of a slightly different nature that we now quote:

If other valid collectible insurance is available to the insured for a loss covered under this policy, this insurance shall be excess over the other insurance unless such other insurance is written only as specific excess insurance over the limits of liability provided in this policy.

¶ 5. Titan denied that it had any coverage on the wrongful death claim, asserting that the first above-quoted policy provision excluded the claim as a covered event because it occurred while the American Justice policy—a "prior policy" within the terms of Titan's policy—was still providing coverage. American Justice assumed the defense of the action and successfully defended the county. In the course of defending the action, however, American Justice amassed defense costs totaling $80,871.18.

¶ 6. This action, as ultimately tried on competing summary judgment actions, involved American Justice's claim for reimbursement from Titan of a part of these defense costs based on the proposition that both companies provided coverage for the event. American Justice claimed that Titan was responsible for two-thirds of the defense costs on a pro rata apportionment calculated on Titan's policy limit of $1,000,000 and American Justice's limit of $500,000.

¶ 7. The trial court concluded that such an apportionment of the defense costs was appropriate on the undisputed operative facts and rendered judgment in favor of American Justice for $53,871.17. It is from that judgment that Titan prosecuted this appeal.

II.

The Scope of Review

¶ 8. Titan, in this appeal, does not claim that there are disputed material issues of fact that were ignored by the trial court in granting summary judgment. Rather, Titan contends that the court's error was one of law. Specifically, Titan says that the trial court inappropriately applied the doctrine of "repugnancy" to the above-quoted clauses in the two policies when they were not, in fact, repugnant. Our review of such matters is de novo. Warwick v. Gautier Util. Dist., 738 So.2d 212(¶ 8)(Miss.1999).

III.

Discussion of the Merits

¶ 9. Insurance companies providing liability coverage to insureds upon the occurrence *1040 of certain events have a long history of drafting policy provisions that, while assuring that their insureds have coverage in all events, nevertheless attempt to minimize the company's liability in those instances where policies issued by other companies also potentially provide coverage for the claim. One method is for Company A to insert what has come to be called an "excess clause" in its policy. Such clauses, in essence, provide that, if there is other insurance available from Company B, the policy issued by Company B will be deemed the primary coverage and Company A's exposure will come into play only if the claim exhausts the policy limits of Company B's policy. 16 GEORGE J. COUCH ET AL., COUCH ON INSURANCE 2D § 62:48 (Rev. ed.1983).

¶ 10. The complication arises when, not to be outdone, Company B inserts a similar provision in its policy. At that point, both Company A and Company B have a legitimate basis under the terms of their respective policies to argue that they provide only excess coverage. The effect of enforcing both policy provisions as written would be to leave the insured without primary coverage of a claim. The universal answer to that dilemma has been to hold the two clauses mutually repugnant and ignore them, thus making the coverage of both policies primary. Allstate Ins. Co. v. Avis Rent-A-Car Sys., Inc., 947 P.2d 341, 347 (Colo.1997); Universal Underwriters Ins. Co., v. Allstate Ins. Co., 99 Md.App. 595, 638 A.2d 1220, 1224 (1994); Rogers v. Snappy Car Rental, Inc., 272 N.J.Super. 346, 639 A.2d 1154, 1160 (1993); 8A JOHN A. APPLEMAN, INSURANCE LAW AND PRACTICE § 4909 at 399 (Rev. ed.1981); 16 GEORGE J. COUCH ET AL., COUCH ON INSURANCE 2D § 62:2 at 436 (Rev. ed. 1983).

¶ 11. Courts are not, however, of one accord as to the proper result of ignoring the competing excess clauses. Some courts hold that the companies share equally in resolving the claim until the policy limits of the smaller policy are exhausted. Western Cas. and Sur. Co. v. Universal Underwriters Ins. Co., 232 Kan.

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Cite This Page — Counsel Stack

Bluebook (online)
758 So. 2d 1037, 2000 Miss. App. LEXIS 93, 2000 WL 224797, Counsel Stack Legal Research, https://law.counselstack.com/opinion/titan-indem-co-v-american-justice-ins-reciprocal-missctapp-2000.