Opinion
February 21, 1995
Appeal from the Supreme Court, Orange County (Barone, J.).
Ordered that the judgment is modified, on the law, by deleting the provision thereof which declared that State Farm Insurance Company is the primary insurer, and substituting therefor a provision declaring that Allstate Insurance Company and State Farm Insurance Company shall be responsible for payment on a pro rata basis of any award made to Frank D. Bieder on the subject uninsured motorist claim, and the parties are directed to proceed to arbitration of that claim; as so modified, the judgment is affirmed, without costs or disbursements.
The law is well settled that where different insurers provide coverage for the same interest and against the same risk, concurrent coverage exists (see, Federal Ins. Co. v. Commercial Union Ins. Co., 126 A.D.2d 892, 893; Federal Ins. Co. v. Empire Mut. Ins. Co., 181 A.D.2d 568, 569). Additionally, where both policies purport to be in excess of each other, the excess clauses operate to cancel each other, both coverages are rendered primary, and each company is obligated to share in the amount that may be awarded following arbitration on a pro rata basis (see, Public Serv. Mut. Ins. Co. v. Katcher, 36 N.Y.2d 295, 299-300; Federal Ins. Co. v. Atlantic Natl. Ins. Co., 25 N.Y.2d 71, 78-80; Matter of Crum Forster Org. v. Morgan, 192 A.D.2d 652, 654; Lumber Mut. Ins. Co. v. Lumberman's Mut. Cas. Co., 186 A.D.2d 637). Here, both State Farm Insurance Company (hereinafter State Farm) and Allstate Insurance Company contend that they are not the primary insurer, but rather, that they each only provide excess coverage. However, both cover Frank D. Bieder under their respective uninsured motorist endorsements and both policies contain similar "other insurance" clauses which cancel each other, making both carriers responsible for any award on a pro rata basis.
We decline to reach State Farm's contention that it was not an insurer of Bieder because a police car is not a motor vehicle under the terms of its policy, as that contention is raised for the first time on appeal (see, Miller Org. v. Vasap Constr. Corp., 184 A.D.2d 763, 764). Balletta, J.P., Thompson, Santucci, Altman and Hart, JJ., concur.