Universal Underwriters Insurance v. CNA Insurance

706 A.2d 217, 308 N.J. Super. 415, 1998 N.J. Super. LEXIS 61
CourtNew Jersey Superior Court Appellate Division
DecidedFebruary 20, 1998
StatusPublished
Cited by14 cases

This text of 706 A.2d 217 (Universal Underwriters Insurance v. CNA Insurance) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Universal Underwriters Insurance v. CNA Insurance, 706 A.2d 217, 308 N.J. Super. 415, 1998 N.J. Super. LEXIS 61 (N.J. Ct. App. 1998).

Opinion

The opinion of the court was delivered by

KIMMELMAN, J.A.D.

The issue on appeal arises under circumstances in which each of two insurance carriers afforded primary coverage for the happening of the same accidental injury. This court is asked to determine what percentage of liability each carrier must bear to cover the loss.

Plaintiff insures Mr. Goodlube, an automobile service center, with liability coverage in the amount of $1,000,000. Defendant insures the leased car of a particular Mr. Goodlube customer with liability coverage in the amount of $300,000. After completing the servicing work on that car, a Mr. Goodlube employee backed it out of the garage and accidentally struck and injured a pedestrian. The injured pedestrian made claims against both Mr. Goodlube and its employee and the owner of the car.

Plaintiff insured Mr. Goodlube and its employee for the happening of the accident. Defendant insured the authorized driver and the car which accidentally struck the pedestrian. Both carriers acknowledge that their policies afforded primary coverage for the injuries sustained by the pedestrian, who has commenced a legal action. Plaintiff argues that the two carriers should contribute equally to payment of the claim. Defendant argues that the payment of the claim should be on a pro rata basis, determined by the respective policy limits. Since the total available primary coverage is $1,300,000 ($1,000,000 from plaintiff plus $300,000 from defendant), defendant claims responsibility for $300,000/$1,300,000 or 23% against 77% for plaintiff.

[417]*417On plaintiffs motion for summary judgment in its declaratory judgment action to determine the parties’ respective responsibility for payment of the injured pedestrian’s claim, the trial court rejected plaintiffs contention and ruled that the carriers must share responsibility on a pro rata basis. Plaintiff appeals.

I

In consideration of this matter, our initial function is to construe the insurance policies as written, in an effort to find the meaning and purpose of each with respect to responsibility for payment of the claim in question. See Royal Ins. Co. v. Rutgers Cas. Ins. Co., 271 N.J.Super. 409, 416, 638 A.2d 924 (App.Div.1994). Where two carriers are each primarily liable, we must examine the “Other Insurance” clause of each policy to determine whether there exists language which may govern the contribution each party should make to payment of the claim when adjusted.

Under the heading “Other Insurance,” plaintiffs policy is silent as to the method of sharing responsibility when other coverage is available. It simply provides: “The insurance afforded by this policy is primary[.]” No exception or limitation is provided in plaintiffs policy regarding the payment of the claim here involved. On the other hand, defendant’s policy is more specific. It provides under its “Other Insurance” clause, in pertinent part, as follows:

8. Other Insurance.
When there is other applicable insurance, we will provide coverage as follows:
b. During the first and subsequent years of this policy for those exposures shown effective in the coverage summary, we will pay only our share of the loss. Our share is the proportion that our limit of liability bears to the total of all applicable limits.

II

We do not find this case to be controlled, as plaintiff urges, by the decision in Cosmopolitan Mut. Ins. Co. v. Continental Cas. Co., 28 N.J. 554, 147 A.2d 529 (1959). In Cosmopolitan, a leased vehicle being used in the business of a news delivery company was [418]*418involved in an accident while being operated by one of its employees. At the time of the accident, the news company and its employee were covered by a liability insurance policy issued by Cosmopolitan and the leased vehicle was covered by a policy issued by Continental. Id. at 556-57, 147 A.2d 529. Both policies extended coverage for the accident, but each policy contained an “Other Insurance” clause which provided that the carrier’s coverage would be excess insurance over any other valid and collectible insurance. Id. at 558, 147 A.2d 529. Our Supreme Court observed that:

If literal effect were given to both clauses the result would be that neither policy covered the loss. Such a result would produce an unintended absurdity which neither party urges.
[Cosmopolitan, supra, 28 N.J. at 559,147 A.2d 529].

The Court further said:

[I]n the present case the two policies appear to us to be equally specific. Each would furnish coverage if the other did not exist. The Continental policy insured the specific truck involved in the accident. On the other hand, the Cosmopolitan policy specifically insured Essex County News Company which was responsible for the accident under the doctrine of respondeat superior.
[Id. at 560,147 A.2d 529].

In conclusion, the Court held:

As applied to the facts of the present case, both policies provide that they shall be “excess” insurance. However, it is obvious that there can be no “excess” insurance in the absence of “primary” insurance. Since neither policy by its terms is a policy of “primary” insurance, neither can operate as a policy of “excess” insurance. The excess insurance provisions are mutually repugnant, and as against each other are impossible of accomplishment. Each provision becomes inoperative in the same manner that such a provision is inoperative if there is no other insurance available. Therefore, the general coverage of each policy applies and each company is obligated to share in the cost of the settlement and expenses. We think that such a conclusion affords the only rational solution of the present dispute.
We ... conclude that as both companies stand on an equal footing equity requires an equal apportionment of the amount of the settlement and expenses.
[Id. at 562, 564,147 A.2d 529],

Other jurisdictions have reached the same conclusion found in Cosmopolitan; holding that, where the excess coverage provisions of two policies are mutually repugnant, they are to be disregarded. The carriers are therefore held to stand on an equal footing, with [419]*419each sharing the payment of liability equally until the limit of the smaller policy is exhausted. See e.g., York Mut. Ins. Co. v. Continental Ins. Co.,

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Cite This Page — Counsel Stack

Bluebook (online)
706 A.2d 217, 308 N.J. Super. 415, 1998 N.J. Super. LEXIS 61, Counsel Stack Legal Research, https://law.counselstack.com/opinion/universal-underwriters-insurance-v-cna-insurance-njsuperctappdiv-1998.