Employers Liability Assur. Corporation of London, England, v. Pacific Employers Ins. Co.
| Decision Date | 08 February 1951 |
| Court | California Court of Appeals Court of Appeals |
| Parties | EMPLOYERS LIABILITY ASSUR. CORP. OF LONDON, ENGLAND v. PACIFIC EMPLOYERS INS. CO. et al. Civ. 17671. |
Betts, Ely & Loomis, Los Angeles, for appellant.
Crider, Runkle & Tilson, Los Angeles, for respondent.
Employers Liability Assurance Corporation of London, hereinafter referred to as Employers, brought this action for declaratory relief to determine its liability and that of defendant Pacific Employers Insurance Company, hereinafter referred to as Pacific, under policies of insurance written by each company providing public liability insurance for defendant Salvation Army. From a judgment construing the policies and determining the liability of each of the respective insurance companies, plaintiff has appealed.
The Pacific policy, which is designated a 'Comprehensive Liability' policy of insurance, provides damage indemnity for (1) automobile bodily injury, (2) automobile property damage, (3) bodily injury other than automobile, and (4) product and products liability. By an endorsement attached to the policy coverage for items (1) and (2) was excluded as to automobiles owned or hired by the Salvation Army. Notwithstanding these exclusions, however, Salvation Army had coverage under the policy for automobile bodily injury and automobile property damage arising out of and caused by any automobile not owned or hired by it and while being driven by an employee in the course of his employment. The limit of liability of the policy is $100,000 for one injured person.
The Employers policy is designated as a 'Standard Automobile Combination Policy,' and covers damages from bodily injuries from owned cars, hired cars, loaned cars, and, by Endorsement No. 4, from injuries arising from the use of nonowned automobiles driven by employees of the Salvation Army in the course of their employment. The limit of liability provided for in the policy is $25,000 for one injured person.
Defendant Eldin K. Tobin was an employee of the Salvation Army. On April 15, 1947, while driving an automobile owned by him, and while acting within the scope of his employment, Tobin collided with another automobile in which defendant Margaret Jones was riding as a passenger. A separate action has been filed by Margaret Jones against Tobin and the Salvation Army in which she seeks a judgment in the amount of $109,600 for personal injuries alleged to have been sustained by her in the accident.
At the time of the accident Tobin carried liability insurance covering his automobile with the Phoenix Indemnity Company. Under the terms of the policy Tobin and the Salvation Army, if it were liable, were insured against bodily injuries caused by the ownership, use or maintenance of the specified automobile. The Phoenix Indemnity Company admits its liability up to its policy limit of $10,000 for any judgment which may be rendered in the action brought by Margaret Jones.
The controversy between Employers and Pacific, both of whose policies were in force at the date of the accident, is as to which company is required by the provisions of their respective policies of insurance to pay the excess of any judgment over $10,000 which may be rendered in favor of defendant Margaret Jones and against defendant Salvation Army.
The policies of Employers and Pacific each contain 'other insurance' clauses. Condition 'H' of the Pacific policy reads as follows: 'Other Insurance: If other valid insurance or indemnity exists protecting the Insured or any person or organization entitled to protection hereunder, from liability for bodily injuries, sickness, disease, or death or for damage to property of others, this policy shall be null and void in respect of such specific hazard otherwise covered, whether the Insured is specifically named in said other policy or not; provided, however, that if the limits of insurance in this policy are in excess of the limits provided by said other insurance, this policy shall provide excess insurance against said hazard in an amount sufficient to give the Insured a combined amount of protection equal to the limits of this policy.'
Provision No. 4 of Endorsement No. 4 of the Employers policy reads: 'The insurance 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 nonowned automobile, or otherwise, against a loss covered hereunder.'
The trial court found that each of the policies provides excess insurance and that Employers and Pacific are concurrent insurers for liability which may be imposed on defendant Salvation Army in excess of $10,000; that as concurrent insurers each is liable in the proportion which the collectible amount of each policy bears to the total collectible amount of excess insurance; that the collectible amount under Employers policy is $25,000 and under Pacific policy is $90,000; that employers is liable for 25/115ths and the liability of Pacific is 90/115ths of any judgment against defendant Salvation Army in excess of $10,000 in an action arising out of the accident, the total liabilities of Employers and Pacific not to exceed $25,000 and $90,000 respectively.
Appellant Pacific contends that the Employers policy, in addition to the Phoenix Indemnity policy, constitutes 'other valid insurance or indemnity' within the meaning of that term in condition 'H' of appellant's policy; that by reason thereof its policy is 'null and void' except in the event of a judgment against defendant Salvation Army in excess of $35,000, which is the aggregate limit of the Phoenix Indemnity and the Employers policies.
Appellant's policy stipulates that it shall be null and void if 'other valid insurance or indemnity exists' but that it shall provide excess insurance over limits provided by such other insurance. Employers policy stipulates that it shall be excess over any other valid and collectible insurance.
Appellant concedes that the only other 'valid and...
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