Carriers Insurance Company v. American Policyholders' Insurance Co.

404 A.2d 216 (1979)

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Nature of the Case

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Facts

Cummings Bros. (Cummings) entered into a contractual agreement with Merrill's Rental Service, Inc. (Merrill's) whereby it leased certain motor vehicles from Merrill's. Merrill's agreed to provide insurance coverage -- both personal injury and property damage -- for its vehicles while they were being operated by Cummings' employees. In 1971, this personal injury liability coverage which Merrill's obtained through P stood at approximately $3,000,000 with $500,000 of property damage coverage. In the meantime, Cummings independently procured $250,000 of liability insurance through D. One of Cummings' employees, while negligently driving a vehicle leased from Merrill's, collided with a Lincoln Continental killing the driver and extensively damaging his automobile. P settled a wrongful death claim for $200,000 and a property damage claim for approximately $8,000. Both prior to and subsequent to the settlement, D refused P's demand for contribution. P instituted the present action and received a judgment against D for approximately $104,000. Both P and D had 'other insurance' clauses in their insurance policies. P's contract stated: If there is other insurance against an occurrence covered by this policy, the insurance afforded by this policy shall be deemed excess insurance over and above the applicable limits of all such other insurance. (emphasis supplied.) D's policy contained an endorsement specifically covering 'hired automobiles' which provided: This insurance shall be excess insurance over any other valid and collectible insurance for Bodily Injury Liability, for Property Damage Liability and for Automobile Medical Payments. (emphasis supplied.) The judge simply disregarded them as 'mutually repugnant' and held both P and D liable. D appealed.