Alliance Mutual Insurance v. New York Central Mutual Fire Insurance , 70 N.C. App. 140 ( 1984 )

WEBB, Judge.

The defendant, relying on Insurance Co. v. Insurance Co., 269 N.C. 341, 152 S.E. 2d 436 (1967); Insurance Co. v. Casualty Co., 269 N.C. 354, 152 S.E. 2d 445 (1967); and Insurance Co. v. Continental Casualty Co., 54 N.C. App. 551, 284 S.E. 2d 211 (1981), argues that in every case in which the superior court has ordered proration on the basis of mutual repugnance of excess insurance clauses, such rulings have been reversed when appealed. The defendant contends the proper inquiry is “which of the two policies is primary and which is excess.” We agree with the defendant that this is the proper inquiry. When this inquiry leads to the conclusion, however, that neither policy is primary or excess, we must hold that the clauses are mutually repugnant and the coverage must be prorated. Where, as here, the excess insurance clauses are identical in language, we do not see how we can hold the coverage of either company is primary or excess. We affirm the judgment of the superior court.

The defendant contends that the plaintiffs coverage is primary because the excess insurance clause in its policy was not intended to apply to the watercraft coverage. Defendant says this is so because the policy as originally issued to the Barrows excluded liability coverage for any watercraft having a motor of more than 50 horsepower. The Barrows had purchased a watercraft endorsement which provided that liability coverage “is extended to apply to . . . ownership ... of watercraft . . . exceeding fifty horsepower.” The boat which was involved in the accident in this case had an engine of 170 horsepower. The defendant argues that the excess insurance clause in the Alliance policy applies to the basic policy and does not apply to the endorsement. It says the Barrows purchased additional coverage and by doing so, they intended to purchase primary coverage. We do not believe we can read such an intent into the action of the Barrows. They had an endorsement added to their policy which extended the coverage to watercraft with more than 50 horsepower engines. We read nothing in the policy which says the excess clause does not apply. We believe the Barrows wanted the additional protection. So long as they received it, they did not care whether it was through primary or excess coverage.

The defendant cites Auto Owners Ins. Co. v. Northstar Mut. Ins. Co., 281 N.W. 2d 700 (Minn. 1979). We are not bound by that case and do not follow it.

Affirmed.

Judges Hill and WHICHARD concur.