Federal Insurance v. Atlantic National Insurance , 29 A.D.2d 204 ( 1968 )

McNally, J.

This action between two liability insurance carriers involves the obligation and extent thereof for the amount of the settlement of a personal injury action paid by plaintiff to the passenger of the automobile involved and her father. The accident occurred on December 28, 1960, in Stowe, Vermont. James Morton had rented the automobile from Hertz Corporation. He was operating the vehicle when it collided with a parked automobile. Plaintiff had previously issued a liability policy to Morton as the owner of another automobile which, in addition, applied to his operation of a nonowned automobile. Defendant’s liability policy issued to Hertz also covered Morton as the renter of the automobile involved in the occurrence. The passenger and her father instituted an action in the Supreme Court, New York County, against Morton, Hertz and the owner of the other vehicle involved in the accident. This action was settled. Plaintiff’s share of the settlement was $8,000. In addition, plaintiff incurred legal expenses in the sum of $4,681.88. Plaintiff seeks to recover $12,681.88.

Morton forwarded the summons and complaint in the prior action to plaintiff, who transmitted them to the defendant, Hertz’s carrier. Defendant returned them to plaintiff with a letter stating defendant’s position to be that both policies provide for excess coverage resulting in prorata liability; that each insurer was under the obligation to defend, but since Morton had forwarded the summons and complaint to plaintiff, it was its primary obligation to defend in behalf of Morton.

The nature and extent of the obligation of the parties are governed exclusively by the provisions of the policies. (Sperling v. Great Amer. Ind. Co., 7 N Y 2d 442, 450.)

The provision with respect to the obligation of plaintiff in the circumstances is set forth in the policy as follows: “ provided, however, the insurance with respect to a temporary substitute automobile or non-owned automobile shall be excess insurance over any other valid and collectible insurance.” There is no claim that plaintiff would not be primarily liable if there were no other valid and collectible insurance.

The corresponding provision in the policy of defendant is as follows: “ The insurance under this policy shah be excess insurance over any other valid and collectible insurance available to the insured either as an insured under another policy or otherwise.”

There is no doubt but that each company would be primarily liable on its policy if Morton had but the one policy of that company.

Although the policies are differently worded, the situation is no different than those that have been frequently passed upon — the courts holding that where there is coverage by more than one policy and each policy contains an excess coverage clause, and if each company would be primarily liable if it was the only policy covering the loss, there must be an apportionment pro rata. (Brown & Kreuger v. Firemen’s Ins. Co. of Newark, 17 N Y 2d 698; Davis Yarn Co. v. Brooklyn Yarn Dye Co., 293 F. Y. 236, 252; We ekes v. Atlantic Nat. Ins. Co., 370 F. 2d 264, 274 [C. A., 9th]; Factory Mut. Liab. Ins. Co. of America v. Continental Gas. Go., 267 F. 2d 818 [C. A. 5th]; Cosmopolitan Mut. Ins. Co. v. Continental Gas. Co., 28 F. J. 554; Ann. 69 ALB 2d 1122,1124-1126.)

For is the liability changed by the fact that Morton did not fully understand or know the provisions of the policy written for Hertz. That is quite immaterial. The provisions of the policy govern whether or not he was aware of them. We may add that we do not have before us a claim by Morton that he was misled by Hertz as to the extent of his liability coverage in respect of the rented automobile. (Cf. Davis Yarn Co. v. Brooklyn Yarn Dye Co., supra, p. 254.) And, even if Morton was misled, this is not an action by him for fraud. This is merely an action between two liability insurers to determine their respective liabilities under the policies herein, and the determination of that question is to be governed by the documents.

Defendant-appellant denies it refused to defend its insured, James Morton. It also contends plaintiff’s settlement with the injured occupant of the rented motor vehicle operated by Morton and her father was voluntary because it arose out of an occurrence governed by the Vermont guest statute, which precludes liability on the part of the operator of the motor vehicle unless the occupant pays for carriage or the occurrence arises out of the gross or willful negligence of the operator. Said denial and defense present factual issues which preclude summary judgment.

The judgment and order for summary judgment should be reversed, on the law, with costs to defendant-appellant, and the motion therefor denied.