General Acc. F. & L. Assur. Corp. v. Continental Cas. Co.

• Citation: 287 F.2d 464
• Decision Date: 27 February 1961
• Docket Number: No. 16863.,16863.
• Parties: GENERAL ACCIDENT FIRE & LIFE ASSURANCE CORPORATION Ltd., a corporation, Appellant, v. CONTINENTAL CASUALTY COMPANY, a corporation, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

287 F.2d 464 (1961)

GENERAL ACCIDENT FIRE & LIFE ASSURANCE CORPORATION Ltd., a corporation, Appellant, v. CONTINENTAL CASUALTY COMPANY, a corporation, Appellee.

No. 16863.

United States Court of Appeals Ninth Circuit.

February 27, 1961.

Kenneth E. Roberts, Mautz, Souther, Spaulding, Kinsey & Williamson, Portland, Or., for appellant.

William C. Ralston, Phillips, Ralston & Poole, David Sandeberg, Portland, Or., for appellee.

Before CHAMBERS, HAMLEY and KOELSCH, Circuit Judges.

HAMLEY, Circuit Judge.

Continental Casualty Company, having paid sums and incurred expenses in settling a liability claim against its insured, Brooks-Scanlon, Inc., brought this action against General Accident Fire & Life Assurance Corporation, Ltd. Continental sought full reimbursement as subrogee of Brooks-Scanlon's alleged rights under a policy issued by General to The Austin Company. In the alternative, Continental sought pro rata reimbursement according to the bodily injury limits of their respective policies. Jurisdiction in the district court rests on diversity of citizenship.

Judgment was entered for Continental in the sum of $23,416.10. This represents an eight-thirteenths pro rata reimbursement of $30,000 paid in settlement of the claim, a like reimbursement of $1,444.56 incurred for attorneys' fees and other expenses in settling the claim, and $3,500 as attorneys' fees for prosecuting the instant action. General appeals. Continental has not cross-appealed but has requested this court to allow an additional $3,000 as attorneys' fees on this appeal.

The facts are not in dispute. On March 27, 1956, Continental issued a policy of liability insurance to Brooks-Scanlon, Inc. This company was engaged in the logging and lumbering business in Bend, Oregon. The policy had bodily injury limits of $250,000 and $1,000,000, and contained an "other insurance" provision.¹ Brooks-Scanlon thereafter entered into a contract with The Austin Company for the construction of a building by Austin on land owned by Brooks-Scanlon. In connection with this contract Austin obtained liability insurance from General with bodily injury limits of $400,000 and $1,000,000. This policy also contained an "other insurance" provision quoted in the margin.²

On January 30, 1958, Robert D. Fullerton, an employee of Austin, was engaged in construction work on the building being erected for Brooks-Scanlon. While so engaged he was struck by a crane being used by Brooks-Scanlon in its lumbering business. Fullerton fell from his position and sustained fatal injuries. Mrs. Fullerton filed an action against Brooks-Scanlon for damages in the sum of $175,000. Brooks-Scanlon tendered the defense of this action to Continental. Continental in turn tendered the defense to General and demanded that the latter accept coverage. General rejected this tender and declined to accept coverage. Continental then negotiated a compromise settlement with Mrs. Fullerton for the sum of $30,000 and in so doing incurred attorneys' fees and expenses in the sum of $2,347.39. Continental then instituted this suit against General.

Appellant argues first that, as to this accident, Brooks-Scanlon was not covered by the liability policy appellant had issued to Austin.

Brooks-Scanlon is not a named insured under that policy. If it is covered thereunder it is by virtue of the "additional interest" endorsement of that policy.³ Under that endorsement a company is covered as an additional interest if it is an owner or lessee of real estate property for whom Austin performs operations under contract. Appellant concedes that Brooks-Scanlon falls in this category.

But the endorsement also restricts the coverage afforded additional interests under the policy "to the operations of The Austin Company and its subcontractors." Appellant contends that this particular accident was not caused by the "operations" of Austin or its subcontractors, but by those of Brooks-Scanlon while engaged in its lumbering business. Appellant thus reads the restrictive provision of the endorsement as limiting Brooks-Scanlon's coverage to accidents caused by the acts of Austin or its subcontractors.

Appellee on the other hand argues that under the restrictive provision the question of whether the accident was caused by Austin or one of its subcontractors is irrelevant. According to appellee the effect of that provision is only to limit Brooks-Scanlon's coverage to accidents which would not have occurred but for the fact that Austin or one of its subcontractors was engaged in construction work for Brooks-Scanlon on the latter's property. This was such an accident, since Fullerton would not have been struck by the Brooks-Scanlon crane had he not been engaged in the building operations as an employee of Austin.

In support of its view that the restrictive provision excludes from additional-interest coverage accidents not caused by Austin or one of its subcontractors, appellant cites Chrysler Motors of California v. Royal Indemnity Co., 76 Cal.App. 2d 785, 174 P.2d 318, 321. The pertinent policy provision involved in that case covered bodily injuries sustained by accident "by reason of and during the progress of the work * * *."

As the court there indicated, the words "by reason of" expressly made coverage dependent upon a showing that acts performed in furtherance of the work caused the accident. In Michigan Stamping Co. v. Michigan Employers' Casualty Co., 235 Mich. 4, 209 N.W. 104, also cited by appellant, coverage was similarly restricted.

In our case the restrictive provision does not contain language which either expressly or by implication injects a causation factor. Neither the words "by reason of" nor any other words having a similar connotation appear in the provision. Hence the result contended for by appellant can be reached only by reading the words "restricted to the operations of" as if they meant "restricted to accidents caused by the operations of." We see no justification for reading such meaning into the restrictive provision, and we are of the opinion that appellee's interpretation of that provision is correct.

Appellant contends that in any event appellee is not entitled to recover attorneys' fees and costs incurred in the defense of the Fullerton action. As noted above, an award of $1,444.56 was made to reimburse appellee for eight-thirteenths of these expenses.

Both policies contain similar defense provisions. When the Fullerton action was begun the defendant, Brooks-Scanlon, tendered the defense to Continental alone. Although Continental sought to have General assume the defense, the latter declined to do so. Continental then proceeded with the defense. Under these circumstances, appellant argues, Continental is not entitled to contribution from General for the expenses incurred in negotiating a settlement.

It has been held that under California law where one of two insurers defends an action against one insured by both, the respective "other insurance" provisions of the two policies are irrelevant, and contribution towards the expense of the defense cannot be enforced. Financial Indemnity Co. v. Colonial Ins. Co., 132 Cal.App.2d 207, 281 P.2d 883. A like result was reached in United States Fidelity & Guaranty Co. v. Church, D.C. N.D.Cal., 107 F.Supp. 633.⁴

The rule to be applied in Oregon was dealt with in Oregon Auto. Ins. Co. v. United States Fidelity & Guaranty Co., 9 Cir., 195 F.2d 958, 960. It was there held that where two policies carry like "other insurance" provisions, they are to be held mutually repugnant and hence are to be disregarded. Thus the rule applicable where neither policy has an "other insurance" provision is to be applied, and the loss is to be prorated between the insurers in proportion to the amount of insurance provided by their...