Jones v. Medox, Inc.
| Citation | 413 A.2d 1288 |
| Decision Date | 01 April 1980 |
| Docket Number | No. 79-433.,79-433. |
| Parties | Nancy R. JONES et al., Appellants, v. MEDOX, INC., et al., Appellees. |
| Court | Court of Appeals of Columbia District |
Ellen A. Patterson, Washington, D. C., with whom Gary W. Brown and James C. Gregg, Washington, D. C., were on the brief, for appellants.
Before GALLAGHER, MACK and PRYOR, Associate Judges.
Appellant contends that where two insurance companies have insured the same risk and the question of coverage arises, the insurance company with the excess "other insurance" clause should not be allowed to escape primary liability when the second insurance policy contains a pro rata "other insurance" clause. Rather, both insurance companies should shoulder a pro rata share of the liability. We agree and, therefore, reverse.
Nancy Jones, a nurse, was employed by Medox, Inc. which provides nursing personnel for hospitals and doctors in the Washington Metropolitan Area. While Ms. Jones was providing nursing services at Doctors Hospital, she treated Mark E. Howard. Later, Mr. Howard sued Ms. Jones, Doctors Hospital, and Medox for injuries which he allegedly received at Doctors Hospital. The case was settled out of court for the sum of $100,000.
Originally, three insurance companies were involved in this action. Ms. Jones was insured by Globe Insurance (hereinafter Globe). Doctors Hospital was covered by the Hartford Insurance Co. (hereinafter Hartford), and Medox, Inc. was insured by Insurance Company of North America (hereinafter INA). Because of conflicting clauses, primary liability could not be agreed upon at the time of settlement. However, the parties stipulated that Globe should pay the full $100,000 if the case could not be settled by March 1, 1978, and the insurance companies could then adjudicate their respective rights in court. The case did not settle by the above date. Accordingly, Globe paid the $100,000; Globe and Ms. Jones then sued Doctors Hospital, Hartford, Medox, Inc. and INA to obtain a pro rata share of the settlement expense from each.
The trial court dismissed the case against Doctors Hospital and Hartford. The issue in conflict narrowed to a dispute between INA and Globe over the proper interpretation of two clauses, one in the INA policy, and the other in the Globe policy. Both clauses were designated to limit liability and to apply to the situation where the insured event was also covered by another insurance company. Each of the clauses are common in the insurance industry and are called "other insurance" clauses.
The Globe policy contains a pro rata clause which states:
. . . [T]he 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.
The INA policy contains an excess clause which states:
[The] insurance provided by this policy shall be excess over any other valid and collectible insurance.
Faced with the conflict between the clauses, the trial court, citing Employers' Liability Assurance Corp., Ltd. v. Firemen's Fund Insurance Group, 104 U.S.App.D.C. 350, 262 F.2d 239 (1958), gave effect to the excess clause and, thus, ruled that Globe was responsible for the entire $100,000.
The trial court relied upon Employers' Liability Assurance Corp., Ltd. v. Firemen's Fund Insurance Group supra; but it should be noted that in that case the conflict was between two excess clauses. The conflict between an excess clause and a pro rata clause is a matter of first impression in this jurisdiction.
To resolve this question, most courts look to the excess clause and apply it. The result is that the insurer with the pro rata clause bears the total loss up to its policy limits.1 If the liability exceeds the limits of the pro rata policy, then the excess policy pays the remainder. In essence, the courts have determined that the excess policy is not valid and collectible other insurance under the pro rata policy. The rationale frequently advanced for this rule is that it gives effect to the intent of the parties.
[W]here an excess clause is inserted in a typical . . . liability insurance policy the usual intent of the insurer is that the policy will afford only secondary coverage when the loss is covered by `other insurance.' On the other hand, a provision that limits a policy to only pro rata liability in the event of concurrent coverage usually is intended to become effective only when other valid and collectible primary insurance is available. [Note, Concurrent Coverage in Automobile Insurance, 65 Col.L.Rev. 319, 328 (1965) (emphasis in original).]
See also note 1, supra.
Critics claim that the majority position is anachronistic because the protection which "other insurance" clauses were created to provide is no longer necessary with respect to many insurable risks.
The original reason for `other insurance' clauses was to "prevent overinsurance and double recovery under property and fire insurance policies. But since there is a greatly diminished risk of fraudulent claims under an automobile liability insurance policy, this original purpose of `other insurance' clauses is of only slight importance. [Werley v. United Services Automobile Association, 498 P.2d 112, 116-117 (Alaska 1972).
See also, Comment, "Other Insurance" Clauses: The Lamb-Weston Doctrine, 47 Ore.L.Rev. 430 (1968). It seems clear that, at least initially, "other insurance" clauses have been utilized as a means of controlling abuses which could evolve from overinsurance or double recovery.
A growing number of jurisdictions have adopted2 what is commonly known as the Lamb-Weston rule3 to resolve conflicts between "other insurance" clauses. Although these courts represent a distinct minority, their view offers a viable alternative to the majority rule. The Lamb-Weston rule provides that where "other insurance" clauses conflict, the clauses are mutually repugnant and both must be rejected, the result being that the liability is prorated among the insurers.
The proponents of the Lamb-Weston rule have offered several reasons for rejecting the majority approach and embracing the minority view:
It does not arbitrarily pick one of the conflicting clauses and give effect to it; it does not deprive the insured of any coverage; it is not prejudicial in giving a windfall to one insurer at the expense of another; it does not encourage litigation between insurers. It does not delay settlements. On the other hand, it does enable underwriters to predict the losses of the insurers more accurately: it does preclude the use of illogical rules developed by the courts (e. g., first in time, specific v. general and primary tort-feasor doctrines); and it does give a basis for uniformity of result. In addition, prorating the loss among all insurers is a rule that can be applied regardless of the number of insurers involved and regardless of the type of conflicts that are created by the "other insurance" clauses. Finally, the rule is simpler, more convenient, and easier to apply than the majority rule. [Note, Conflicts Between "Other Insurance" Clauses in Automobile Liability Policies, 20 Hastings L.J. 1292, 1304 (1969) cited in Werley v. United Services Automobile Association, supra].
Having reviewed the alternatives, we conclude that the Lamb-Weston rule is the better rule. It is a balanced approach to a complicated problem and encourages an equitable, uniform result. It is unfair to allow one insurance company to escape liability solely because its "other insurance" clause is superior to the second insurance company's clause. Presently, the rules used to determine the superiority of one clause over another are sometimes confusing and often place the insured in an untenable position.
This court believes it is good public policy not to put an injured plaintiff, or a defendant who is fortunate enough to have duplicate coverages, in a position where there is any possibility one insurer can say, "After you, my dear Alphonse!" while the other says, "Oh, no, after you my dear Gaston." They must walk arm in arm through the door of responsibility. [Firemen's Insurance Co. v. St. Paul Fire & Marine Insurance Co., 243 Or. 10, 15, 411 P.2d 271, 274 (1966).]
Thus, where the insurance companies have insured the same risk and the event triggering insurance liability occurs, the insurance company with the excess "other insurance" clause cannot escape primary liability when the second insurance policy contains a pro rata "other insurance" clause. The clauses are mutually repugnant and must be rejected totally. Both insurance companies must shoulder a pro rata share of the liability.4
Reversed and remanded.
The majority opinion in this case rests on the premise that the clauses in the respective insurance policies necessarily conflict and that the court must therefore affirmatively intervene to resolve this conflict. I disagree.
This case originated in a malpractice action arising out of injuries allegedly sustained from an injection administered by Nancy Jones, a nurse, at Doctors Hospital. Defendants in the action were Ms. Jones, the hospital, and' Ms. Jones' employer, Medox Inc., a corporation which provides temporary medical personnel to local doctors and hospitals. The case was settled for $100,000 pursuant to a settlement agreement which provided that the insurance companies representing all defendants would litigate separately their respective liabilities. In the event that this litigation was not concluded by March 1, 1978, the agreement provided further that Ms. Jones' insurer, Globe Indemnity Co., would pay the full amount of the settlement with no prejudice to its rights.
The insurers' liabilities were not adjudicated by the agreed date. "Globe...
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Jones v. Medox, Inc.
...Automobile Association, 498 P.2d 112, 117 (Alaska 1972).] For the reasons set forth in the opinion of the division, Jones v. Medox, Inc., D.C.App., 413 A.2d 1288 (1980), vacated by our en banc order May 5, 1980, the Lamb-Weston rule is favored. It should not prove burdensome to insurance co......