Great Am. Ins. Co. v. Hartford Acc. & Indem. Co.
| Decision Date | 20 January 1975 |
| Citation | 519 S.W.2d 579 |
| Parties | GREAT AMERICAN INSURANCE COMPANY, Plaintiff-Appellant, v. The HARTFORD ACCIDENT AND INDEMNITY COMPANY, Defendant-Appellee. |
| Court | Tennessee Supreme Court |
James F. Russell, Memphis (Nelson, Norvell, Wilson, McRae, Ivy & Sevier, Memphis, of counsel), for plaintiff-appellant.
Ronald Lee Gilman, Memphis (Farris, Hancock, Gilman, Branan & Lanier, Memphis, of counsel), for defendant-appellee.
The motion for summary judgment of The Hartford Accident and Indemnity Company (hereinafter defendant) was granted, and Great American Insurance Company (hereinafter plaintiff) appealed to this Court, pursuant to T.C.A. § 16--408.
Plaintiff insured Mrs. Gill and her automobile, which was being operated, with her permission, by her brother, Joseph Nuvolini, at the time of an accident on November 28, 1971, in Memphis, Tennessee. Plaintiff paid the sum of $5,506.05 in settlement of claims of parties in the other automobile, and brought suit against the defendant for contribution.
Defendant's policy was purchased and issued to Nuvolini in New York, where he was a resident at the time and at the time of the accident in Memphis.
The 'other insurance' provisions of both policies contain clauses to the effect that coverage with respect to a non-owned automobile shall be excess insurance only. The Tennessee law applicable to the insurance policies issued by plaintiff and defendant requires proration between the policies of the owner and the driver on the grounds of mutual repugnancy. Effective as to all policies written and renewed after May 1, 1973, our Legislature has changed that rule by making the owner's policy primary, and any other liability coverage, excess. Public Acts, 1973, Chapter 209. The parties concede that at all times relevant here, the rule of law applied in the State of New York is that the owner's liability insurance provides primary coverage and the driver's policy, excess.
The learned Chancellor, adhering to the rule of lex loci contractus, held that the law of New York should be applied and, since plaintiff's primary coverage exceeded the sum paid in settlement, the suit was dismissed.
Plaintiff contends that we should apply the rule of mutual repugnancy because logic and public policy considerations require the application of the law of the place which has the most significant relationship to the event and the parties. Our attention is called to the dominant contacts, or center of gravity approach that has fained acceptance in some states for the resolution of conflicts of laws questions.
In Winters v. Maxey, Ten., 481 S.W.2d 755 (1972), the conflict involved the rule of lex loci delicti versus the contention that this Court should adopt the dominant contacts rule. The Alabama guest s...
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