Bennett v. The Preferred Acc. Ins. Co. of New York

• Decision Date: 13 November 1951
• Docket Number: No. 4291.,4291.
• Citation: 192 F.2d 748
• Parties: BENNETT v. THE PREFERRED ACC. INS. CO. OF NEW YORK.
• Court: U.S. Court of Appeals — Tenth Circuit

192 F.2d 748 (1951)

BENNETT v. THE PREFERRED ACC. INS. CO. OF NEW YORK.

No. 4291.

United States Court of Appeals Tenth Circuit.

November 13, 1951.

Looney, Watts, Ross, Looney & Smith and C. J. Watts, all of Oklahoma City, Okl., for appellant, Pacific Employers Ins. Co., on the brief for appellants.

Draper Grigsby, Oklahoma City, Okl., on the brief, for appellee.

Before BRATTON, HUXMAN, and PICKETT, Circuit Judges.

PICKETT, Circuit Judge.

The Preferred Accident Insurance Company of New York brought this declaratory judgment action against C. K. Bennett, doing business as C. K. Bennett and Son, and Pacific Employers Insurance Company¹ to determine the relative rights and liabilities of the parties for a sum paid jointly by Preferred and Pacific in settlement of an action to recover damages for the wrongful death of an employee of Bennett. Bennett carried with Preferred a public liability policy covering personal injury and property damage, while Pacific issued to him a policy insuring him against liabilities for injuries to his employees. This appeal is from a judgment of the trial court holding that the terms of the Preferred policy required Bennett to reimburse Preferred in case it was required to pay a loss of the character involved in the settlement and fixing primary liability for the loss upon Pacific.

Bennett was a licensed motor carrier in Oklahoma. To comply with 47 Okl.St.Ann. 1941 § 169,² he deposited with the Corporation Commission of Oklahoma a policy of insurance issued by Preferred assuring the public of compensation for injuries to persons and damage to property occasioned by his operations as a motor carrier. The policy contained the Oklahoma amended motor vehicle Form "E" endorsement prescribed and approved by the Oklahoma Corporation Commission as contemplated by Sec. 169. The policy and the endorsement specifically excluded liability for injuries to employees of Bennett if incurred in the course of their employment, and required Bennett to reimburse Preferred for payments which it would not have been required to make except for the agreement in paragraph 4 of the policy and endorsement "E".³

Shortly after the issuance of the Preferred policy, Pacific delivered to Bennett its Standard Workmen's Compensation and Employers' Liability Policy covering liability to his employees. One of Bennett's employees was killed in the course of his employment while both policies were in effect, and the administratrix of his estate brought suit in the state court of Oklahoma to recover damages for the wrongful death of the employee. When the aforesaid settlement of this action was made, each insurer paid one-half of the agreed amount under a stipulation that the ultimate liability should be determined in this action. Pacific agrees that under its policy it was required to defend the action on behalf of Bennett and is liable for the damages suffered by the employee. It maintains, however, that Preferred, under Oklahoma law, is also liable for the injuries; and that Preferred made no payment which it was not required to make under the terms of its policy, therefore it should pay the loss in proportion to its coverage. This contention grows out of a decision of this court and two cases decided by the Oklahoma Supreme Court. Continental Casualty Co. v. Shankel, 10 Cir., 88 F.2d 819; Casualty Reciprocal Exchange v. Sutfin, 196 Okl. 567, 166 P.2d 434; Stanley v. Mowery, 201 Okl. 480, 207 P.2d 277. These cases read the statute into the policies and held that public liability insurance issued to comply with that statute was for the benefit of the public, including employees, and refused to exclude an employee from that class of persons which the statute intended should be protected. The Oklahoma court also held that insofar as the policy with the Form "E" endorsement attempted to exclude liability for injuries to employees of the carrier it was ineffective. In these three cases the insurance coverage was limited to public liability policies and the litigation involved the employer, the insurer and the injured employee. The question presented related only to including an employee in that class of persons which the statute was designed to protect.

The case before us presents an entirely different situation. Here the liability to the employee is admitted and the dispute is between the insuring companies as to which shall pay the claim. Pacific concedes its liability if the provisions of the Preferred policy require Bennett to reimburse Preferred for the payment which it has made. In the Preferred policy Bennett agreed to reimburse Preferred for any payment it was required to make which it would not have been required to make under the terms of the policy except for the provisions of condition 4 and endorsement "E". Although the language of the policy is somewhat ambiguous as to what payments should be reimbursed, it appears to us that the essence of these reimbursement clauses is that Bennett will repay Preferred for any payment made by the company which it would not have been required to make under the terms of the policy. We think the trial court was correct when it concluded that under the terms of the Preferred policy Bennett was under obligation to reimburse Preferred for any sum which it had paid for the loss in question and placed the entire obligation upon Pacific because its policy specifically and by its terms covered the loss while the liability of Preferred was by implication of law and contrary to its specific terms. Preferred and Bennett apparently construed the provisions accordingly as the premium charges of Preferred did not include this coverage, and Bennett purchased the Pacific policy to protect himself in case such reimbursement was required.

Insurance is written to cover a variety of risks and combination of risks and premiums are calculated according to the risk. There can be no doubt in this case as between Preferred and Bennett that the parties were at liberty to contract for insurance to cover such risks as they saw fit and be bound by the terms of the contract, and courts may not rewrite the contract. Collins v. United States, 10 Cir., 161 F.2d 64, certiorari denied 331 U.S. 859, 67 S.Ct. 1756, 91 L.Ed. 1866; Aetna Ins. Co. of Hartford, Conn. v. Jeremiah, 10 Cir., 187 F.2d 95. Bennett and Preferred knew that under Oklahoma law the employees could not effectively be excluded from the coverage. This did not, however, prevent a provision in the insurance agreement requiring Bennett to reimburse Preferred for any payment that it would not be required to make except for certain provisions of the policy. Travelers Mutual Casualty Co. v. Herman, 8 Cir., 116 F.2d 151, certiorari denied 313 U.S. 564, 61 S.Ct. 842,...