*1 specific vehicle he was provided for EQUITY injured.
driving he was INSURANCE MUTUAL
COMPANY, foreign a Plaintiff, corporation, CONCLUSION IV. jurisdict in this adopted the view Under user
ion,5 as a status Stanton’s VALLEY WHOLESALE NUR- SPRING extend single Fuller vehicle cannot be aof SERY, INC., corporation; an Oklahoma right to stack him the as to afford ed so Highways Department of State non-occupant of 378 other coverage as a Transportation, a commission created by American Mutu insured Fuller vehicles Texas; the Estate of the State they entered the time is clear that at al. It Evens, through Hank the administrator contract, Fuller and American into their Nobels; A. and Sue Evens William fleet cover contemplated that the Mutual Makin, widow of Hank Ev- Sue a/k/a uninsured motorist bene extend would ens, deceased; Kansas and Oklahoma occupant permissive-user only fits Railroad, Defendants, and Texas To find oth single vehicle. employee of foreign Indemnity Company, a National total entitle Stanton to claim would erwise corporation, Intervenor $20,- $7,580,000.00 (379 x coverage of Cross-Petitioner. 000.00), from him to contribution without a re securing such Such wards No. 66443. absurdity. clearly an sult is Supreme Court Oklahoma. Here, permissive-user em- was a Stanton Dec. not the Fuller’s vehicle. He was ployee of fleet under Fuller’s insured named Mutual; pay the nor did he American coverage extended for the broad
premiums Thus, Stanton insured.
to the named 2 insured. status of a Class
occupied the question, answering the first certified to stack is not entitled hold that Stanton
we coverage for the motorist
the uninsured The maxi-
remaining 378 Fuller vehicles. $20,- Mutual is liability of American
mum
000.00, being the uninsured motorist who was an
coverage available to Stanton being permissive- virtue of the accident. employee at the time
user conclusion, find it
Having this we reached second certified
unnecessary to address the
question. QUESTIONS ANSWERED.
CERTIFIED
All Justices concur. (1972). America, S.E.2d 832 Va. Cunningham Ins. Co. North *2 beyond apply vehicle does
commercial radius? 200-mile it is not in violation If the court finds policy, such a limitation would liability claimants and additional apply to knowledge no of the radi- who have endorsement? us *3 by Equi- primary Is insurance carried Company in- ty Mutual [owner’s Indemnity Company National or surer] user’s [permissive insurer]? in af- question first answer the
We radius hold that a 200-mile firmative and operator’s liabili- in limitation an owner’s compliance with Okla- ty policy obtained laws, liability insurance homa’s seq., contra- 7-600 et §§ statutory policy and underlying venes limits the minimum insofar as it is void by cited statute. coverage required to the affirmative answer Because our Gibbon, Arbogast, W. D. Oliver Richard qualified, we must answer question is Associates, first Gibbon, Jr., Gladd & Messrs. application to the question as the second Tulsa, plaintiff. for radius limitation the 200-mile Wilkerson, Parrish, Rich- Steve Harry A. cover- insured for and additional claimants Knight, Wagner, Wagner, D. Messrs. ard required minimum to the additional Tulsa, Lieber, Stuart, for de- & Wilkerson unambiguous hold that an by law.1 We Nursery, Spring Valley Wholesale fendant clearly set forth exclusion Inc. binding on liability policy which a vehicle Jr., Bonds, Bonds, Mat- Messrs. Camp A. binding on also insured is Muskogee, de- thews, Hayes, for Bonds & to cov- insureds as and additional claimants Texas R.R. Kansas and fendant Oklahoma .minimum, even statutory erage above Weiman, Holden, Melvin C. E. Steven insureds additional and if such claimants Wilburn, Wilburn, Master- Ray Messrs. H. of the exclusion. unaware were Tulsa, Holden, for intervenor son & hold question, we to the third In answer Nat. Indem. Co. cross-petitioner agreement between an that absent Austin, Texas, Mattox, Atty. Gen. Jim per- vehicle and a commercial owner of Tex., of Texas. State for defendant user, or more missive the same coverage for primary provide OPALA, Justice. insur- loss, shared loss shall be in the concurring provisions Absent for the ers. District Court States United insurer’s each apportionment, policies for of Oklahoma certified District Northern ratio its on the share will be based answer, the Uni- pursuant this court’s limit of Act, cumulative limit Questions bears of Law form Certification policies. 1601-1612, concurrent questions three 10 O.S.1981 §§ of law: in- owner’s Alternatively, when both pro- insurer permissive user’s and the policy in surer it in violation 1.Is loss same coverage for the vide insured to insurer and Oklahoma have permissive user the owner coverage of a liability insurance agree that issue,” comprised fairly it we found coverage problem collateral was Although the excess answer. questions for our certified "a brief as intervenor-insurer’s in the tendered agreed provide primary that one will cover- The owner’s insurer issued to the owner age, agreement providing liability coverage hold that such an for a we permissive tractor. The user borrowed the given primary coverage other effect and requested per- tractor. The owner that the treated as excess. missive user obtain insurance none of Alternatively, when the concur- permissive the tractor. The user owned a policies provides primary coverage, rent we trailer the intervenor-insurer. (a) hold that an excess clause controls over policy insuring the trailer limited cov- pro escape both a rata clause and an erage to an area within miles of the clause, (b) escape clause controls over a permissive user’s address. The (c) pro conflicting “other rata clause operating user was the borrowed tractor other, insurance” clauses cancel each mak- with his own trailer attached outside the ing policies primary. both 200-mile radius.3 ANALYSIS, DISCUSSION THE FEDERAL
ANATOMY OF
*4
AND ANSWER
LITIGATION
QUESTION
CERTIFIED
I
The federal district court has asked this
questions
court to decide these
on the basis
In
legislature
1976 the Oklahoma
enacted
following
Law,4
of the
facts:2
Compulsory
now codi-
See 47
The federal court file in the case reflects that
2. The
Letteer v.
accident. While in some instances
We consider the
P.2d
The federal court file in
accident. The
vened.
light of the law in force at the time of the
permissive
amendments
legislative
user and the defendant railroad involved in the
owner of the
the owner’s insurer seeks a
his
proceedings,
for the
1983 accident which involved the tractor-trailer.
terial facts:
between D and C."
age for the tractor.
200 mile radius as
Without
3. C borrowed tractor from A for his own
use.
5. C was
4. A
2. C owned trailer insured with D.
A—
rated
B—
C—Hank J. Evens
D—National
Parties relevant
1. A owned tractor insured with B.
obligation
controversy
Equity
Spring Valley
parties adopted
requested
purposes
O.S.Supp.1982
Conservancy
"CERTIFICATIONOF
intent in
prejudice
user,
operating
may
Mutual Insurance
[1963],
truck,
STATEMENTOF FACTS
Indemnity Company
to the named defendants:
resulted from an
parties agree
the widow of the
of this Certified
obligation
be considered in
of C to have insurance cover-
Wholesale
formerly
to these
that rule would not be of
the certified
District No.
tractor-trailer outside of
provided
§§
estate
following agreed
user’s insurer inter-
7-600 et
judgment declaring
case
of the insurers in
parties
enacted
Nursery
Company
QUESTION
in the
indicates that
the deceased
30, Okl.,
Question.
question:
ascertaining
August
subsequent
permissive
seq.
following
in future
Incorpo-
statutes,
ma-
The
§
the Oklahoma Statutes:
The
Sess.L.1985,
§
Sess.L.1984,
Sess.L.1987, Ch. 5
dent amendments and additions to the Okla-
homa Financial
vant to the
amendments deal with matters
by any person arising
tor vehicle
owned
from the
Every person,
security
tain in force with
security
istered
maintenance, operation or use of the vehicle.
injury,
motor vehicle
c.
from the
in accordance with
”...
permission
insure
insured vehicle with the
arising
subparagraph
operation or use of such
b. shall insure the
7-601(B)
liability insurance:
"As used in Article
1. ‘Owner's
7-600(1)
1,§
pertinent provisions
assistance here because all
may provide
pertinent
[E]very
Ch. 279
[******]
by
death and'
out of the
for the
liability imposed by
are:
liability imposed by
are:
this
problem
Ch. 181 2 and
registered
Ch.
other
of the named
owner of a motor vehicle
policy1.
state,
§
dealer, shall,
while
this
c of person,
terms of 47
Responsibility
17 and Ch.
for exclusions from
person, except
§§
payment
payment
property damage
§
VI, chapter
§
person
other than a licensed used
before us. For
ownership,
operating
existing
respect
154 and
in this state which is
1; Okla.Sess.L.1986,
An owner’s
shall maintain in force
out of the
of 47
paragraph, using
insured,
express
vehicle,
named
Ch. 253
at all
§138
of loss
of loss
laws,
to such vehicle
law for
Law,
or
that
law for
7 of Title 47 of
O.S.Supp.1982
O.S.Supp.1982
as
maintenance,
times,
using
against
1 and Okla.
provided
therein
ownership,
or
subsequent
* *
§
are
sustained
see Okla.
post-acci-
resulting
resulting
damages
3;
implied
bodily
main-
irrele-
Okla.
mo-
reg-
loss
not
Ch.
an
imposed by
bodily
Responsibility
liability
from the
law for
Financial
in Article
of the
fied
VI
damage
all
injury,
property
mandate
that
sus-
.5
Its terms
death
Act
liability insurance
owners maintain
by any person arising
vehicle
tained
out of the
security at
less
not
or other authorized
maintenance, operation or use
ownership,
required by 47 O.S.1981
than the minimum
purpose
of ...
manifest
vehicle.”8
[a]
Responsibility
of the Financial
7-2046
§
expressed
legislature,
of the
in the text of
exempt by
unless a
is
statute.
Act
vehicle
statute,
provide compensation
is to
addition,
operators of motor vehicles
In
injury
to members of the
or loss
liability coverage
required
maintain
are
are
with claims that
When
actionable.
ex
coverage, which does not
unless such
provides
cov-
policy expressly states
it
insured,
provid
operator
clude the
as
erage
compulsory
required by Oklahoma’s
by the owner.7
ed
laws,9
must be
insurance
strictly
against
by a
construed
the insurer
specifically requires
The statute
consistent with its terms resulting
“security
payment
of loss
standard
6. The
The Financial
The Financial
are:
ty
O.S.1981
Chapter
applicable to
requirements
acted
different
in
each article are not
§§
from the
provided
be
Insurance Law.”
such
"Excess or additional
property of
also
in
of not
costs,
this section which does
death
subject
of the
son from
death of
accident,
less
accident has
death,
"No
injury,
any person arising
of not less than Ten Thousand Dollars
000.00)
injury to or
($10,000.00)
7-204(a)
($20,000.00)
7-600.1(B) are:
subject
for
7-301
addition to
pertinent provisions of 47
subject
in 1965
grant any
policy
pertinent provisions of 47
high
excess
of
of not less than
7 of
vehicle,
death or
§§
to a
to
legislative
et
because of
less
matter,
one
of
liability imposed
and if the accident
two
to
said limit for
coverage.”
seq.).
7-201 et
policy
risk drivers.
Title 47 O.S.1981
or bond
for
destruction
and,
others in
the Financial
or
the
than
limit,
because
because
person
the owner
Responsibility
Responsibility Act is
the
resulted in
lawful
or more
whole; i.e.,
proof
unless such
additional
are
property
provisions
though
Articles II and III were en-
or bond is
necessarily
coverage specified
purpose. The
Twenty
out of
injury to or
exclusive
seq.)
separate
shall be
in
of financial
*5
coverage
of
of
Ten
any
one
persons
damage
related to
bodily injury
bodily injury
coverage
property
exclusions allowed
Responsibility
of the
Thousand
by
one
Thousand
bodily injury
security
person,
provisions
exclude
Act also contains
accordance
effective ...
§§
operation
III
overlapping nor
of
has
Articles
subject,
law for
in
destruction
accident.”
accident
7-101
interest
(47
sustained
responsibili-
Compulsory
in
excess of
contents
resulted
codified
Article
to a limit
to a
has
shall not
said
any
O.S.1981
O.S.1981
... and
Dollars
Dollars
et
bodily
II
with a
if the
($10,-
to or
to or
been
limit
and,
seq.
per-
one
un-
use
Act
(47
VI
or
or
in
in
in
8. 47
Intervenor-insurer
9. Mid-Continent Cas.
Public
in one
quirements
vehicle
provided
insurance
ers.
§
cause
Oklahoma
in
pursuant
construction the
laws under
er’s
quirements
from the
ments of
exempt
tion would be
need
entities.
lowable
Though
court,
exemption
its
§ 7-602A which
ration Commission
ance
compliance
insurance
graphical
dence
would somehow
Neither
" * * *
ration
this title."
maintain
empt
7-324 of
policy
its
coverage
[1987]
not address
laws
brief-in-chief
the intervenor-insurer
the harmful
does not
Saf.,
from the
coverage
from Sections
does
this is
exclusions
Commission,
Intervenor-insurer
to 47
Motor
Beavin v. State ex rel.
was
legislative
pursuant
argument’s
any
limitation
statutory policy
laws. The conclusion
or whether
in 47
the statute
or
not
liability
of the
this court
with
the
the intervenor-insurer
was
issued in
permissible
requirements
other
apply
O.S.1981
not certified as a fact to
carriers
seem to
are not to
provide
compulsory liability insurance
coverage is to receive.
differently
be consistent with
whether
Corporation
terms of
indeed
requirements
compulsory
for a
intent
that its
event
insurance are
does
to the other.
assumed
in a commercial
7-601(B).
relating
agency
specifically
7-600
the
or
compliance
required by
§§
be
in
Okl.,
for a
exempt
any
the
compulsory
not
does
geographical
occurred
does
of other statutes
7-600—7-607.
pertinent
logically
even when
policy
through
specifically states
treat
and is
determined from
intervenor-insur-
premise.
Commission
other
argue
302 [1983].
not
Department
liability
or
high
argue
7-602A
from the re-
held
that a
with
commercial
the
was
P.2d
hereby ex-
govern
the
argue
legislative
in
deducible
entity, to
risk driv-
therefore
part:
issued
7-607 of
Young
that be-
that
require-
liability
that al-
Corpo-
Corpo-
limita-
it was
Texas,
issued
is evi-
insur-
that
geo-
this
We
the
re-
or
in
statutory policy
A
requires coverage
with the
it embodies.10
ion that the statute
liability policy
state,
which confines
to a
just
for losses within the
as we do
provide security
200-mile radius would not
requires
not hold that the
statute
for
of the
even
members
Oklahoma
holding
for losses in all states. Neither
public. Though
compulsory liability in-
compellable by
language
of the statute
specifically
surance laws do not
state how
led
its enactment.
geographic
far—in terms of
radius —cover-
Legislature
Until such a time as the
so
extend,11
must
must
statutes
geographical perimeter
defines the
of the
broadly
accomplish
legisla-
construed to
statute,
coverage required by the
we hold
dealing
aim.
tive
When
with one another
geographical
that a
exclusion shall be
law,
conformity
the insurer and judged according to
reasonably
whether it
negotiate
complies
purpose
with the manifest
of the
unreasonably
range
pro-
limits the
compulsory insurance laws.14
Although
tection the law affords.12
jurisprudence
National
on this issue is
compulsory
1982 amendments to the
stat-
addressing geo-
scarce. Most of the cases
contract,13
utes allow for some freedom of
graphical
exclusions in insurance
that freedom cannot extend to territorial
prior
were decided
to the enactment of
light
limitations which in
of the statutes’
compulsory
then,
insurance laws. Since
purpose
produce
manifest
would
an absurd
New York court held a 100-mile exclusion
result. Because a 200-mile radius limita-
contrary
void as
to law.15 The Kansas
point
tion from
in this
Supreme Court condemned a household and
state could exclude from
a loss
garage shop exclusion as violative of com-
state,
arising within the
it is an unreason-
pulsory insurance
laws.16
South Car-
able limitation.
hold
We
that when
olina court held a use limitation contra-
compliance
insurance is issued in
com-
vened its
insurance laws.17
laws,
at
pulsory
statutory policy
insurance
very
minimum
requires coverage
Appeals
The Oklahoma Court of
held
passenger
actionable claims which
arise with-
that a
exclusion
opin-
the state. We do not hold
this
compliance
issued in
with Articles II
10.See,
Potter,
might
adjoin-
Utilities Ins. Co. v.
188 Okl.
be found unreasonable. The two
*6
259,
ing
105 P.2d
263
having
longest
[1940].
states
common border
state,
negligent
roam,
with this
into which the
Okla-
Responsibility
require-
The
11.
Financial
Act’s
likely
homa motorist is most
to
are Kan-
proof
responsibility
ments for
of financial
require
sas and Texas. Both of those states
apply
high
expressly
to
risk drivers
re-
liability coverage
their residents to secure
quire liability coverage within the United States
(specifically
losses in Oklahoma
for losses with-
7-324(b)(2)
(d);
§
Canada. 47 O.S.1981
Canada).
in
United States and
Tex.Rev.Civ.
supra.
see also footnote 7
Stat.Ann.,
Supp.
art. 6701h
1977 and
[Vernon’s
40-3107(b)
12. See
and Kan.Stat.Ann.
Co.,
1986-1987]
§
Lovy
Cal.App.
v.
Farm
State
Ins.
117
[1984],
834,
307, 312,
Cal.Rptr.
3d
173
[1981].
7-600(l)(c),
The terms of 47
15. Kasson &
Keller,
Inc. v. Centennial Ins.
4,
supra
provide
note
that the owner’s
450,
760,
79 Misc.2d
359 N.Y.S.2d
765 [N.Y.
"may provide
for exclusions from
in
The
1974].
court said the exclusion was not
existing
accordance with
laws.”
by
Regulations
authorized
the Rules and
of the
Superintendent of Insurance.
14. holding requiring only
geographical
that
perhaps
exclusions be reasonable would
allow a
16. DeWitt v.
474,
478,
Young,
229 Kan.
court to find in the future a
exclusion
The court indicated that
[1981].
allowable
limiting coverage to losses within the state rea-
compulsory
exclusions under
insurance laws
policy covering
sonable for an insurance
a com-
specifically
must be
set forth in the statute.
only
pizzas
mercial vehicle used
to deliver
in
hand,
City.
Oklahoma
On the other
should that
Parker,
pizzas
Pennsylvania
same vehicle
ma,
Nat. Mut.
v.
be used to deliver
in Texho-
Cas. Ins.
[App.
a town which
S.C.
straddles
Oklahoma and
S.E.2d
460-461
Panhandle,
Texas borders in the
the exclusion
The
limited
1984].
to vehicles
limiting coverage
purposes.
to losses within the state
not used for business or commercial
coverage required
the minimum
Responsibility ably limits
III18 of the Financial
compulsory liability
by the
insurance laws.
of the act and
the intent
contravened
Act
Looney
in
This court
void.19
was therefore
QUESTION II
CERTIFIED
considered the
Group20
Ins.
v. Farmers
legisla
appears
it
that the
Once
of the in-
coverage of one
from
exclusion
served,
purpose has been
the statute’s
tive
compliance
in
with
policy issued
sureds in a
Consequently, free
mandate is satisfied.24
The exclu-
Law.
Compulsory Insurance
principles
control as to
dom-of-contract
the insureds
passed muster because
sion
required
coverage in excess
that
vehicle
of
the statute’s
not intended as
question were
end,
by statute.25 To that
of the law
purpose
The
protected class.21
expressly provide that such additional
laws
of the
public, not members
is to shield
subject
provi
coverage shall not be
to the
Moreover, household.
named insured’s
The
sions of the statute.26
serves another
family-household exclusion
advantage
accept
geo
find it to his
for additional
protecting
graphical
limitation
policy interest —that
public
premium.
in return for a lower
on a vehicle
friendly
against collusive
the insurer
law,
Though permissible under the
all such
exclusion
lawsuits.22
strictly
limitations and exclusions shall be
here,
family-household
unlike the
contest
and in
construed in favor of the insured27
strips
indemnity
Looney,23
exclusion
object
accomplished by
favor of the
actionable
of the
members
policy.28
persons the stat-
very class of
claims—the
Though
liability policy
is for the ben-
protect.
intended
ute was
third-party
additional
efit of
claimants and
insureds,
contract
they
strangers
are
contends
intervenor-insurer
provisions even
are bound
its
preclude parties
not
public policy does
though they
unaware of
exclu-
were
liabil
contracting to limit an insurer’s
from
parties contracted.29
for which the
sions
permis
it
not
ity and that
bound
se
the owner to
user’s contract with
sive
QUESTION III
CERTIFIED
argument is
This
without
cure insurance.
policy is to be treated as
An insurance
with contrac
merit. We deal here
according to
and will be enforced
contract
parties
also with a
to third
but
tual duties
determining
which insurer
its terms.
protection of the
statutory mandate
coverage,
a brief over-
provides
radius limitation is
public. A 200-mile
common terms
view of the
appropri-
contracts is
used in insurance
it unreason-
to the extent that
hence void
Company,
18. See footnote 7
Wiley Travelers Insurance
supra
Arti-
for discussion of
P.2d
1295 [1975].
and III.
cles XI
20.
Hibdon
Inc., Okl.App.,
The court said there
group
statute of
ployees.
Okl.,
ate.30 surance” which would escape policy, hand, under the terms of the the insurer is clause. On the other we hold that regard any liable without to other insur- escape pro between an clause and a rata coverage coverage clause, ance available.31 Excess escape prevail clause will and when, secondary coverage provided is pro coverage rata pri- will be deemed policy, under the terms of the the insurer is mary.37 any for a loss after liable compounded The conflict coverage insurance —has been ex- —other policies when concurrent have “other insur pro policy hausted.32 A in a rata clause ance” clauses which cancel each other. proportionate limits to a share They may provide only each excess cover relation to all available for the leaving primary coverage, no or both clause, escape same risk.33 An also known escape disclaiming have clauses liabili clause, as a no disclaims ty if other insurance is available to cover liability if other insurance is available.34 the loss. policies When concurrent have Questions apportion of conflict and such “other insurance” clauses which can among ment of between or insur other, cel they each we hold that are mutu ers arise when more than one covers repugnant ally disregarded, are to be definition, By course, the same loss. with the loss shared the insurers on a primary coverage up to the limits of the pro rata basis.38 Where the insurers have applied will be to a loss before resort designated in their the same meth is had to excess Further apportionment, od of the contracts will con more, policy provides pro rata concurring provisions trol. Absent ap provides only and another excess portionment, coverage of the loss is to be coverage, pro rata is to be treat pro according shared on a rata basis primary.35
ed as
respective policy
ratio each
limit bears to
escape
When one
has an
poli
cumulative limit of all concurrent
any liability
clause that disclaims
if
example,
there is
cies. For
if one insurer has a
poli
$100,000,
other available insurance and
$200,000
another
limit of
another
¾ n
cy provides only
coverage,
$300,000,
excess
we fol
and a third
pay
the first would
general
low the
liability”
$100,000,
trend that the “no
up
of the loss
the second
n of the loss
policy is
primary coverage.36
$200,000
deemed
pay
up
This would
conclusion is based on the rationale
pay
up
$300,-0
the third would
½ the loss
excess
is not “other available in- 00.39
30.
2d,
Services,
generally,
Logistics
Couch on Insurance
16
Inc. v. Mut. Ma
Offshore
Office,
485,
§§ 62:41 —62:92
ed.
rine
F.Supp.
[2nd
1983].
462
493-494 [E.D.La.
Associated Indem. v. Ins. Co. North
1978]
31. Ind. Finishes &
Ins.,
Systems
v. Amer. Univ.
America,
807,
258, 267,
Ill.App.3d
68
25 Ill.Dec.
382,
modified,
[Ore.App.1986],
720 P.2d
385
80
529,
386 N.E.2d
[1979].
538
743,
Or.App.
32. Brownsville
Fabrics,
Co.,
Inc. v.
Ins.
Gulf
332,
[Tex.Civ.App.1977]
S.W.2d
and Union Western Cas. and Sur. v. Universal Underwrit-
Underwriters, supra
Indem. Ins. Co. v. Certain
ers,
Kan.
657 P.2d
580 [1983].
note 31 at 1017.
Bill Atkin
Volkswagen,
McClafferty,
Inc. v.
Maryland
Cas. Co. v. Horace Mann Ins.
and Wolverine
[Mont.1984]
[W.D.Pa.1982],
F.Supp.
affirme
*8
d
Columbus,
Ins. Co. v. State Auto. Mut. Ins. Co. of
955
to those
allow an
us,
ments and additions
laws
the
owner
In the case before
per
requested
operator
policy to exclude an
from
vehicle
owner’s
the commercial
coverage
primary
secure
user to
existing
missive
law.45
in accordance with
stipulated,
tractor. The
Moreover,
required by
operator is
facts
whether
use do not
this court’s
liability
only
insurance
reflect
to maintain
statute
The
secured.
coverage was indeed
from the owner’s cover-
if he is excluded
that the tractor was
facts do show
certified
may
age.46
federal court
find from the
insurer,
by the owner’s
insured
guide-
policies and from the
terms of the
user) at
(owned
permissive
by the
trailer
opinion
in this
that both
lines set forth
by the
tractor was
tached to the
primary coverage, that nei-
policies provide
private
user’s insurer.40
permissive
provides primary
or that
ther
of an
expand the terms
agreement cannot
coverage.
provides primary
Stat-
41 given consid
insurance
but
implicated only
insur-
utory policy is
when
poli
commercial
concurrent
eration when
they are in
deny liability, not when
ers
coverage for the
provide primary
cies all
provide primary
dispute as to which will
setting, it
In
commercial
loss.42
same
parties
to the
particularly beneficial
may be
agreement to as
public for an
con
Lastly,
owner’s insurer
coverage to
primary
sign responsibility
not issued in con
tends that its
was
posi
user who is
a better
hauling
use for
templation of the tractor’s
event,
loss.43 In that
prevent a
tion to
oil. The insurer
highly flammable crude
policies that are
indemnity
other available
finding
permit a
urges
equity
will not
This
as excess.
primary may be treated
the true fact of
primary
view,
applied conformably
must be
argu
use was concealed.
the tractor’s
general principle that contractual
insurer known
that had the owner’s
ment is
by agree
expanded
obligations cannot be
being
to haul a haz
contract,44
was
used
may the tractor
strangers
ments with
substance,
premiums would nec
policy so secured
ardous
not be invoked when
has a
risk.
only pro
higher
rata
to cover the
provides
essarily have been
clause.
conflicting “other insurance”
bring no comfort to the
contention can
That
instances, the loss will be shared
the latter
has said that when a
This court
insurer.
pro rata
on a
basis.
coverage for the user who
policy provides
general per
given the insured’s
has been
liability insur-
Oklahoma’s
mission,
by the
the loss is covered
determination
do not dictate the
ance laws
use was not con-
though
particular
1982 amend-
even
coverage. The
21,
DeSerio,
Leasing
[Fla.
470 So.2d
24
v.
reflects that
Truck
court file in this case
40. The federal
event,
v.
App.
Cas. Ins. Co.
and Carolina
alleged
Dist.1985]
4
in the
harmful
when involved
304,
Co.,
314 [5th
Ins.
569 F.2d
use as a
Underwriters
connected for
tractor and trailer were
Cir.1978];
Indemnity Conti
v.
but see National
possible
of the insur-
fact that neither
unit. The
575,
Ins.,
Md.App.
DOOLIN, C.J., HARGRAVE, V.C.J., LAVENDER, SIMMS,
and KAUGER JJ., SUMMERS, concur. J.,
HODGES, I concurs in Part voting upon Parts II and III opinion. WILSON, J., part
ALMA concurs in part. dissents in Justice, WILSON, concurring
ALMA part dissenting part: opinion
I concur insofar as this
holds a exclusion void as con-
trary to 36 O.S.1981 any implication
I dissent to limiting coverage
construed as which has for, though
been contracted statutory beyond well be minimum
requirements. factually This issue is not
presented by this case. Oklahoma, Appellee,
STATE of FISH, Appellant.
Alex
No. 66355.
Supreme Court of Oklahoma.
Dec.
As 4, 1988. Corrected March Preble, Spears