Celina Mut. Cas. Co. of Ohio v. Citizens Cas. Co. of N. Y.
| Decision Date | 11 January 1950 |
| Docket Number | No. 59,59 |
| Citation | 194 Md. 236,21 A.L.R.2d 605,71 A.2d 20 |
| Parties | , 21 A.L.R.2d 605 CELINA MUTUAL CASUALTY CO. OF OHIO v. CITIZENS CASUALTY CO. OF NEW YORK. |
| Court | Maryland Court of Appeals |
George B. Woelfel, of Annapolis, for appellant.
John G. Rouse, Jr., and George W. Baker, Jr., Baltimore (Rouse & Morton, Baltimore, on brief), for appellee.
Before MARBURY, C. J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.
A certain Charles Washington Phillips had his operator's license revoked, and under the provisions of the Motor Vehicle Financial Responsibility Law, Code 1947 Supplement, Article 66 1/2, Sections 107 et seq., in order to drive again, he had procured a policy of insurance from the appellee, hereinafter called 'Citizens'. This policy was what is known as a 'Named Operators' policy with a limit of $5000 for bodily injury or death of one person. This policy covered Phillips as the operator of a car, but did not cover any specific automobile, as he owned none. (Article 66 1/2, Sec. 121) The policy which was duly approved by the Commissioner of Motor Vehicles, contained the following clause with respect to other insurance: 'Other Insurance (Coverages A and B)--If the insured has other insurance against a loss covered by this policy the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss; provided, however, the insurance under Insuring Agreements V and VI shall be excess insurance over any other valid and collectible insurance available to the insured, either as an insured under a policy applicable with respect to the automobile or otherwise, against a loss covered under either or both of said insuring agreements'. Article 66 1/2, Section 112(B)(7), allows such a policy to provide for the pro-rating of insurance thereunder with other applicable and valid collectible insurance. The clause, as above set out and inserted in the policy, also had a provision for excess insurance under 'Insurance Agreements V and VI', but these were not applicable to his policy, because agreement V related to the use of other private passenger automobiles, and the agreement VI related to the temporary use of substitute automobiles. These clauses are standard in policies insuring an automobile, but have no application to such a policy as this, which did not insure Phillips' automobile, but insured Phillips himself as an operator and non-owner.
Phillips' wife owned a Buick car, and she had a $5000 policy on this car issued by the appellant, hereinafter referred to as 'Celina'. This policy contained the following clauses:
The excess insurance provisions in this policy are the same standard ones above referred to as being in Citizens policy, and covering other automobiles or substitute automobiles. They have no bearing on the questions in this case, because the accident which was the cause of this litigation occurred during the operation of the Buick automobile primarily insured, and no other or substituted automobile was involved in it. Mrs. Phillips' policy included a definition of the word 'insured' which, it was stated, 'includes the named insured and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission.' The insurance with respect to other automobiles included especially the named insured and 'the spouse of such named insured, if a resident of the same household.' That particular provision is not applicable to this case, but it is indicative of the general intention of Celina to put Phillips in a special class, and to include him as one of the insured under all circumstances.
On October 13, 1947, while both of these policies were in force, Phillips, while driving his wife's Buick automobile, with her permission, had an accident as a result of which George S. Wilson, an infant under the age of 21 years, was killed. His parents subsequently recovered a judgment in the Circuit Court for Anne Arundel County against Phillips for $7600 and his administrator obtained a similar judgment in the amount of $300. Thus, the total judgments growing out of the accident amounted to $7900 with interest and costs. Execution was issued, returned nulla bona. Thereupon the plaintiffs in these two cases sued both Celina and Citizens in the Court of Common Pleas of Baltimore City, and after a number of preliminary proceedings, the case was heard before the Court sitting without a jury. The Court first held that Citizens was the primary insurer, and should pay up to the limit of its policy, $5000 and Celina should pay the balance of $2900. Citizens then filed a motion for a new trial, and on this the Court came to a different conclusion, and entered judgments against each defendant for one-half of the total amount due. From these judgments Celina appealed here.
The contention of Celina is that as Phillips could not operate a car without complying with the Financial Responsibility Law, and did so by taking out and filing the policy of Citizens, this made the latter the primary insurer and Celina was, therefore, only a secondary insurer and liable only for the excess over the amount of the Citizens' Insurance.
There appears to be no very direct authority on the exact question. The general rule as to insurance policies is that where there are pro rata or proportionate clauses in several insurance policies insuring the same property, the insurance is concurrent and each insurer is liable for its proportionate amount. This has also been held to be the rule where there is no provision about proportionate insurance in either policy. Richards on...
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