Summary
In Trinity Universal Ins. Co. v. General Accident etc. Corp., 138 Ohio St. 488 [ 35 N.E.2d 836], defendant's policy covered any accident on the assured's premises but contained a limitation that if the assured carried other insurance against a loss arising out of an accident also covered by its policy, and if an accident occurred within or upon the insured premises and was due either directly or indirectly to an automobile, defendant's policy should be excess insurance.
Summary of this case from Employers Etc. Corp. v. Pacific Etc. Ins. Co.Opinion
No. 28196
Decided July 23, 1941.
Insurance — Automobile liability — Two companies covered same insured — General coverage by one policy and specific coverage by the other — First policy limited to excess over other insurance — Second policy limited to proportionate share of total coverage — Specific insurer primarily liable and general insurer liable for excess.
APPEAL from the Court of Appeals of Cuyahoga county.
This action was instituted in the Court of Common Pleas for the purpose of obtaining a declaratory judgment determining the rights and obligations of the plaintiff, the Trinity Universal Insurance Company, and the defendant, the General Accident, Fire Life Assurance Corporation, Ltd., of Perth, Scotland, under the provisions of two policies of liability insurance issued by them to the defendants, Joseph N. Malec and Joseph F. Marek, against whom a claim has since been made for the wrongful death of a customer who was struck and killed by a delivery truck operated by the insured on their own premises.
The first of the two policies was issued by the defendant company March 20, 1937, in the sum of $20,000. This contract covered the premises of the insured. It provided insurance "against loss by reason of the liability imposed by law upon the assured for damages on account of such [accidental bodily] injuries [including death] caused by the insured * * * as a result of an accident * * * occurring within or upon the promises * * *." The contract also contained the further provision that if "the assured carries other insurance against a loss arising out of an accident also covered by this policy, * * * and if such accident occurs within or upon the insured premises and is due either directly or indirectly * * * to an automobile * * * then this policy * * * shall be excess insurance only over and above the amount of such other insurance and the corporation shall not be liable under this policy until such other insurance is completely exhausted."
Subsequently on April 25, 1937, the plaintiff issued its policy in the sum of $10,000. This contract provided insurance covering the above-mentioned delivery truck. The company agreed "to pay in behalf of the insured all sums, within the limits specified * * * because of bodily injury, including death at any time resulting therefrom * * * arising out of the ownership, maintenance or use of the automobile." This policy also contained the further provision that if "the named insured has other insurance against a loss covered by the policy, the company, as respects the named insured, shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability expressed in the declaration bears to the total applicable limit of liability of all valid and collectible insurance against such loss."
The trial court rendered a declaratory judgment to the effect that under the circumstances the earlier policy, issued by the defendant company on the premises of the insured, provided general insurance in excess of and secondary to that obtained under the specific contract subsequently issued by the plaintiff, the Trinity Universal Insurance Company, on the truck alone.
Upon an appeal a majority of the Court of Appeals with one judge dissenting reversed the judgment of the Court of Common Pleas, and each of the two insurance companies was held liable generally for its proportionate share of the total coverage for any judgment that might be rendered subsequently against the insured for the wrongful death of the deceased customer.
The case is in this court for review by reason of the allowance of the motion filed by the defendant, the General Accident, Fire Life Assurance Corporation, Ltd., to certify the record.
Mr. William M. Byrnes, Mr. William A. Kane and Mr. Frank J. Kus, for appellee.
Messrs. McKeehan, Merrick, Arter Stewart and Mr. C.M. Horn, for appellant.
Although the presentation of this case has resulted in extended discussion and the citation of numerous authorities, the question is clear and uninvolved when reduced to its lowest terms. Then too, the decision must be limited to the circumstances peculiar to this particular controversy.
This is not a dispute between the insured and the two insuring companies. The latter concede the full coverage in the total sum of $30,000 — $20,000 on one policy and $10,000 on the other. They agree further that if either policy constituted the only coverage it then would be the obligation of that company to defend the insured and pay the entire amount of any judgment not in excess of the amount of the policy. The dispute arises solely by reason of the existence of the two policies. Is each company liable for its proportionate share of the total coverage for any judgment rendered? Or is the defendant company's liability limited to any excess above the $10,000 named in the policy issued by the plaintiff company?
First it must be observed that the coverage provided by the policy of the defendant company is general while that named in the policy issued by the plaintiff is specific. The latter is limited strictly to liability for bodily injury or death accidentally arising from operation of the truck. The former covers liability for any accidental bodily injury, including death, occurring anywhere on the premises of the insured. Hence, under the general rule the specific insurer is primarily liable.
The second thing of importance to be noted is that the policy issued by the defendant company is the only one mentioning excess insurance. Although the policy covers generally all bodily injuries occurring accidentally anywhere on the premises of the insured, it excludes any such injuries if caused by the truck on the premises at a time when there is other coverage on the truck. In that event liability is expressly limited to any excess above the maximum provided in the other policy. There is no contractual relation between the two insurance companies, and the defendant company was within its rights in issuing to the insured a policy containing this limitation. It is not contended that the plantiff company could not have ascertained this information when it later issued its policy.
The judgment of the Court of Appeals must be reversed and that of the Court of Common Pleas affirmed.
Judgment reversed.
WEYGANDT, C.J., TURNER, WILIAAMS, HART, ZIMMERMAN and BETTMAN, JJ., concur.
MATTHIAS, J., not participating.