49 Ohio St. 2d 213 | Ohio | 1977
The main issue raised by this cause is the effect to be given to two insurance policies covering the same risk and providing that their liability with regard to that risk shall be excess insurance over other valid, collectible insurance.
Buckeye proposes two reasons why State Auto should be primarily liable for the damages arising out of the Harrell accident. The first is that, “as a practical matter, the State Auto insured was responsible for the accident.” The second is that neither policy qualifies “by its terms” as a policy of primary insurance, and, therefore, “the policy which specifically covers a vehicle and its driver” provides “the primary coverage.” Buckeye contends, in the alternative, that “the Court of Appeals did not err in the manner in which it prorated the loss between the parties.”
Buckeye’s first argument is without merit. In Maryland Cas. Co. v. Banker’s Indemnity Co. (1935), 51 Ohio
Buckeye, also contends that, where neither policy is primary “by its terms,” because each includes coverage and excess clauses for the same risk, “the policy which specifically covers a vehicle and its driver.” provides “primary coverage.” Buckeye correctly asserts that; by definition, neither ' of two policies containing mutually repugnant excess clauses is primary. Indeed, it is because neither policy is primary where two policies contain. conflicting excess clauses that courts have,had to resort to judicial formulae, including the “specific versus general” theory espoused by Buckeye, to apportion liability.
Having rejected the methods of determining liability suggested by Buckeye, we must now consider what method of apportioning coverage to adopt. The Court of Appeals ruled that the “respective coverages” of the policies at issue in the present cause be “prorated.” We agree that some method of prorating coverage between Buckeye and State Auto is necessary. Proration has been adopted by a majority of jurisdictions dealing with the problem of conflicting excess clauses. Annotation, 69 A. L. R. 2d 1122, 1123-1124. Furthermore, it is consistent with the concept of primary and excess liability expressed in State Farm, supra, and Continental Cas. Co., supra, and does not conflict with any previous treatment of insurance policy clauses by this court.
The Court of Appeals held, and Buckeye asserts, that “the most equitable method of prorating is to divide the coverages equally to the limits of the lower limit policy.” We disagree. Although the Court of Appeals may have been accurate in stating that “insureds do not pay proportionate premiums for upper limits,” proration based on the cost to the policyholder has been criticized by commentators (Note, 1 Willamette L. J. 485, 490 [1961]; Case
The majority rule is to prorate liability according to the amount of coverage provided by each- insurer.
The judgment of the Court of Appeals is modified, and, as modified, is affirmed.
■ Judgment affirmed.
The judicial formulae include the “prior in-time” theory, the “primary tortfeasor” theory, the “specific versus general” theory and thé proration theory. Concurrent Coverage, supra (65 Colum. L. Rev. 319), at pages 321-322.
Annotation, 69 A. L. R. 2d 1122, 1123; Oregon Auto Ins. Co. v. United States Fidelity & Guar. Co. (C. A. 9, 1952), 195 F. 2d 958, 960.
We choose instead to adopt the reasoning espoused by Judge Leach in Continental Cas. Co., supra (75 Ohio Law Abs. 79), at page 91, the only 'previous Ohio case dealing with two conflicting excess clauses. Starting with “the fact * * * that there can be no ‘excess' insurance in the absence of a ‘primary’ insurance,’’ the Continental court rejected “beginning” its “mental approach with one policy and then going in circles” and chose instead to reason as’ follows:
“* * * As to- Continental, its policy cannot be ‘excess’ because there is,no.t.in- effect, any other policy of ‘primary’ insurance. The ‘excess’ provision being, .inoperative and the general coverage language applicable, it is potentially liable to the full amount of its coverage to the same extent .as . if its policy contained no excess feature. Having so concluded, we do.not. say that because of such conclusion we may now apply the! ‘excess’, features of Buckeye’s policy. To do so would make*217 the result depend upon which policy we considered first. Instead, and ignoring our conclusion as to the Continental policy, we consider the policy of Buckeye in the same way.”
In Trinity Universal Ins. Co. v. General Accident, Fire & Life Assur. Corp. (1941), 138 Ohio St. 488, this court aifirmed the rule that the specific insurer is primarily liable. The Trinity case is inapposite, however, because it involved a contest between an excess clause and a prorata clause, and that distinction was equally as important to the court as was the general specific coverage theory. Trinity, supra, at page 491.
See 69 A. L. R. 2d 1122, supra, at page 1124.