U.S. Guarantee Co. v. Liberty Mut. Ins. Co.

• Decision Date: 15 February 1944
• Citation: 12 N.W.2d 59,244 Wis. 317
• Parties: UNITED STATES GUARANTEE CO. v. LIBERTY MUT. INS. CO.
• Court: Wisconsin Supreme Court

244 Wis. 317

12 N.W.2d 59

UNITED STATES GUARANTEE CO.

v.LIBERTY MUT. INS. CO.

Supreme Court of Wisconsin.

Dec. 7, 1943.

Rehearing Denied Feb. 15, 1944.

Appeal from a judgment of the Circuit Court for Milwaukee County; Gustave G. Gehrz, Circuit Judge.

Affirmed.

Action commenced May 24, 1941, by United States Guarantee Company, a corporation, plaintiff, against Liberty Mutual Insurance Company, a corporation, defendant, for contribution on settlement of a claim for personal injuries caused by employee of assured to whom both plaintiff and defendant had issued liability policies. From a judgment for the plaintiff, defendant appeals.

United States Guarantee Company, plaintiff and respondent, and Liberty Mutual Insurance Company, defendant and appellant, were insurance carriers of Joseph Schlitz Brewing Company. Brant & Nielsen, Inc. entered into a contract to paint certain elevators on the premises of Joseph Schlitz Brewing Company, and while Walter Gaurkee, its employee, was on a ladder engaged in painting an elevator, he was severely injured by reason of a tractor colliding with the ladder. The tractor was owned by Joseph Schlitz Brewing company, and was operated by Fred Conrad, one of its employees. Gaurkee sought and received workmen's compensation from his employers. By virtue of permission contained in sec. 102.29(1)(b), Stats. Gaurkee commenced a suit in circuit court against Joseph Schlitz Brewing Company for his damages. The Brewing Company forwarded the summons and complaint to the Liberty Mutual Insurance Co., who refused to assume the defense of said action. Thereafter the papers were forwarded to the United States Guarantee Company, who proceeded to defend. When the action came on for trial, and on the second day of the trial, a settlement was made in the sum of $19,000, which was paid by the United States Guarantee Company under its policy. This action is to recover from the appellant its share of the above settlement, together with attorneys fees.

Otjen & Otjen, of Milwaukee, for appellant.

Gold & McCann, of Milwaukee, for respondent.

BARLOW, Justice.

The policy of the plaintiff, United States Guarantee Company, is known as a ‘National Standard automobile Liability Policy,’ and the policy of the defendant, Liberty Mutual Insurance Company, is known as a ‘Public Liability Policy.’ Each policy contained the usual provision to defend the assured in actions commenced against it, subrogation clause, and a provision relative to other insurance. In substance, the paragraph relative to other insurance in each policy provided that if the assured carried a policy of another insurer against loss and expense covered by its agreement, the assured shall not recover from the company a larger portion of the entire loss and expense than the amount of the policy bears to the total amount of valid and collectible insurance applicable thereto. The policy limit under plaintiff's policy was $25,000 and under defendant's policy $20,000.

It is undisputed that if no other insurance had been in effect except defendant's policy, it would have been liable for the entire damages in question. With an additional policy in effect, defendant now seeks to avoid contribution, claiming that plaintiff's policy is specific as to coverage and that defendant's policy is general and the liability of the specific policy is primary, thus releasing defendant. Plaintiff's policy covered all motor vehicles of assured wherever used, including the one that caused this injury. Assured owned and operated a large number of motor vehicles in the conduct of its business. Defendant's policy covered hazards that arise when members of the public come upon assured's premises to do business with it or by the company's invitation, which included Gaurkee, the injured person, and was limited to injuries occurring on the specific premises or public highways immediately adjoining. Defendant's contention is not sound. The purpose of each contract was to cover the loss in question. Both contracts were general for the type of losses covered. Defendant relies on Trinity Universal Insurance Co. v. General Accident Fire & Life Assurance, Ltd., 138 Ohio St. 488, 35 N.E.2d 836, which is not applicable, as the policy in question in that case specifically provided that it was additional insurance only.

Defendant's policy provided that no action shall lie against it unless the loss has been definitely determined (a) By final judgment after trial of the issues...