Travelers Ins. Co. v. Lexington Ins. Co.

• Decision Date: 03 October 1985
• Docket Number: No. 84-1465,84-1465
• Citation: 478 So.2d 363,10 Fla. L. Weekly 2286
• Parties: 10 Fla. L. Weekly 2286 The TRAVELERS INSURANCE COMPANY, Appellant, v. LEXINGTON INSURANCE COMPANY, Appellee.
• Court: Florida District Court of Appeals

Page 363

478 So.2d 363

10 Fla. L. Weekly 2286

The TRAVELERS INSURANCE COMPANY, Appellant, v. LEXINGTON INSURANCE COMPANY, Appellee.

No. 84-1465.

District Court of Appeal of Florida,

Fifth District.

Oct. 3, 1985.

Rehearing Denied Nov. 12, 1985.

W. David Rogers, Jr. and Jeffrey O. Saufley of Rogers, Dowling & Bos, Orlando, for appellant.

Marcia K. Lippincott, and Roy B. Dalton, Jr., of Hurt, Parrish & Dalton, P.A., Orlando, for appellee.

DAUKSCH, Judge.

This is an appeal from a declaratory judgment in an insurance coverage dispute. While we doubt that such a situation as this will occur again we write in order to try to prevent it.

Travelers wrote a policy for the insured which contains two mutually repugnant clauses; one an "excess" clause and the other an "escape" clause. The excess clause reads:

5. Other Insurance: This insurance is primary with respect to any other liability insurance available to the insured if such other insurance purchased and issued to the named insured specifically to apply in excess hereof. This insurance shall apply in excess of all other liability insurance available to the insured, and in excess of all property insurance available to the named insured, and then shall apply only in the amount by which the applicable limit of liability of this policy exceeds the sum of the applicable limits of liability of all such other insurance, including any deductible provisions thereof.

The escape clause reads:

This insurance does not apply:

P. To any injury or damage to the extent that the insured has available any other valid and collectible insurance, whether on a primary, excess or contingent basis or otherwise, unless purchased by the named insured specifically to apply in excess of this policy.

As can be seen, the excess clause says that the coverage is only for losses in excess of coverage of any other policy. It assumes the existence of such other insurance and says it covers only that part of the loss which is greater than the coverage in the other insurance. As also can be seen, the escape clause relieves the insurer of any liability because it excludes coverage if the insured has other insurance. So, the policy says the company will pay any amount of the loss over other coverage but if there is other coverage it will not pay. Did the Queen of Hearts write this for Alice?

Lexington wrote a policy which had only an excess clause:

8. Other Insurance: Other insurance permitted without notice until required, and it is agreed that, in event of there being specific or other insurance, whether prior or subsequent hereto in date and by whomsoever effected, directly or indirectly covering the property insured hereunder, then such other insurance shall first apply and this policy shall not be considered as contributing with such other insurance, but shall pay only the difference between the amount recoverable under such other insurance and the amount of any loss covered hereunder, not exceeding the limit of liability stated herein.

In Florida, where two insurance policies contain excess insurance clauses the clauses are deemed mutually repugnant and both insurers become primary and share the loss on a pro rata basis in accordance with their policy limits. Consolidated Systems, Inc. v. Allstate Insurance Co., 411 F.2d 157 (5th Cir.1969); Rouse v. Greyhound Rent-a-Car, Inc., 506 F.2d 410 (5th Cir.1975) (applying Florida law). See also, Fla.Jur.2d Insurance, § 945; Annot. 69 A.L.R.2d 1122....