Summary
declining to apply rule of ratable contribution to insurance policy with other insurance clause similar to the clause in the Illinois National OCIP
Summary of this case from Muss Dev., LLC v. Nationwide Ins. Co.Opinion
May 1, 1995
Appeal from the Supreme Court, Nassau County (Segal, J.).
Ordered that the appeals of the defendants David J. Clare and Diamond Truck Leasing Co. and the cross appeal are dismissed as abandoned; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that the plaintiff is awarded one bill of costs.
The appellant Continental Casualty Insurance Company (hereinafter Continental) concedes on appeal that, pursuant to an endorsement to the plaintiff's insurance policy, the plaintiff provided excess insurance coverage for the automobile accident that is the subject of the underlying action. Moreover, the plaintiff's named insured was also an additional insured under a policy issued by Continental. Thus, Continental contends that its insurance coverage was also excess and that it and the plaintiff should contribute equally to the settlement of the underlying wrongful death action because their limits of liability were identical.
As a general rule, when several insurance policies cover the same risk and each purports to be excess, the excess clauses negate each other and each insurance carrier contributes its proportionate share of the loss (Federal Ins. Co. v Atlantic Natl. Ins. Co., 25 N.Y.2d 71). However, the general rule is inapplicable when its application would distort the meaning of the terms of the policies (State Farm Fire Cas. Co. v LiMauro, 65 N.Y.2d 369, 374; Lumbermens Mut. Cas. Co. v Allstate Ins. Co., 51 N.Y.2d 651, 655). Thus, an insurance carrier whose policy purports to provide excess insurance coverage, but contemplates contribution with other excess insurance carriers or does not negate such a possibility, must contribute ratably with an insurance carrier with a similar policy. However, such an insurance carrier must exhaust its own policy before seeking contribution from an insurance carrier whose policy expressly negates contribution with other carriers or otherwise manifests that it is intended to be excess over other excess policies (State Farm Fire Cas. Co. v LiMauro, supra, at 375-376).
In this case, even if Continental were an excess insurance carrier, the general rule of ratable contribution is inapplicable because the excess insurance clauses of Continental's and the plaintiff's policies are not similar. Continental's "Other Insurance" clause contemplates contribution with other insurance carriers, whether excess or primary. The plaintiffs endorsement, however, specifically provides, "The insurance provided by this endorsement is excess over any other collectible insurance, whether primary, excess or contingent." Thus, the plaintiff's endorsement negates contribution and manifests an intention that the plaintiff's insurance coverage is to be excess over any other excess insurance coverage. Consequently, the Supreme Court properly determined that Continental's policy had to be exhausted before the plaintiff would be required to contribute to the settlement of the underlying action (see, State Farm Fire Cas. Co. v LiMauro, supra; Lumbermens Mut. Cas. Co. v Allstate Ins. Co., supra; Davis v De Frank, 33 A.D.2d 236, affd 27 N.Y.2d 924). Ritter, J.P., Altman, Hart and Goldstein, JJ., concur.