Brown Kreuger v. Firemen's Ins. Co.

2 Citing cases

  1. Travelers Ins. v. Gen. Acc., Fire Life

    28 N.Y.2d 458 (N.Y. 1971)   Cited 19 times

    Of course, and the parties have the power to make the law of their own case, there is the stipulation in this case that the insurers are concurrently liable. In the absence of statute or contrary policy provisions fire and marine insurers sharing a risk are entitled to contribution in proportion to the policy limits (see Brown Krueger Inc., v. Firemen's Ins. Co. of Newark, N.J., 6 A.D.2d 780, affd. 17 N.Y.2d 698, involving a single claim; Thurston v. Koch, 4 Dall. [4 U.S.] 348, 351, citing, inter alia, Newby v. Reed, 1 W. Bl. 416; Godin v. London Assur. Co., 1 Burr. 489, 492 [MANSFIELD, L.C.J.]; 6 Appleman, Insurance Law and Practice [1942], § 3902; 7 Cooley's Briefs on Insurance [2d ed.], p. 6609; 16 Couch, Insurance [2d ed.], § 62.2; 2 Richards, Insurance [5th ed.], § 175; cf. 57 N.Y. Jur., Suretyship and Guaranty, § 377, on apportionment between cosureties according to the liability they have assumed). Hence, if analogous precedent and principle are followed, there should be a proportionate contribution in this case, not according to the limits for each claim but according to the limits for each accident since the settlements in this case were for a group of claims arising from a single accident.

  2. Federal Ins. Co. v. Atlantic Nat. Ins. Co.

    29 A.D.2d 204 (N.Y. App. Div. 1968)   Cited 3 times

    There is no doubt but that each company would be primarily liable on its policy if Morton had but the one policy of that company. Although the policies are differently worded, the situation is no different than those that have been frequently passed upon — the courts holding that where there is coverage by more than one policy and each policy contains an excess coverage clause, and if each company would be primarily liable if it was the only policy covering the loss, there must be an apportionment pro rata. ( Brown Kreuger v. Firemen's Ins. Co. of Newark, 17 N.Y.2d 698; Davis Yarn Co. v. Brooklyn Yarn Dye Co., 293 N.Y. 236, 252; Weekes v. Atlantic Nat. Ins. Co., 370 F.2d 264, 274 [C.A., 9th]; Factory Mut. Liab. Ins. Co. of America v. Continental Cas. Co., 267 F.2d 818 [C.A. 5th]; Cosmopolitan Mut. Ins. Co. v. Continental Cas. Co., 28 N.J. 554; Ann. 69 ALR 2d 1122, 1124-1126.) Nor is the liability changed by the fact that Morton did not fully understand or know the provisions of the policy written for Hertz. That is quite immaterial.