MEMORANDUM AND ORDER
We consider here motions for reconsideration of this Court’s order of August 29, 1984,
We address first Royal’s contention that our grant of summary judgment to the Plaintiffs was inappropriate. Actually, the grant of summary judgment to a non-moving party is a relatively frequent occurrence in federal courts. Witness the statement:
... the weight of authority is that summary judgment may be rendered in favor of the opposing party even though he has made no formal cross-motion under Rule 56.
Wright & Miller, Federal Practice and Procedure: Civil § 2720, pagеs 467-68.
This is in keeping with the objective of Rule 56 of the Federal Rules of Civil Procedure to expedite the disposition of
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cases and, somewhat more rеmotely, with the mandate of Rule 54(c) requiring the court to grant the relief to which a party is entitled “even if the party has not demanded such relief in his pleadings.”
Teamsters Local Union No. 205 v. Carl Colteryahn Dairy, Inc.,
Concerning the matter of Royal’s unaddressed affirmative defenses, it appears that two of them are no defense at all. The first, that the Kellners had no insurable interest in the premises which is the subject of this claim, is refuted by the facts. It is an elementary principle of insurance law thаt an insurable interest exists in any party who would be exposed to financial loss by the destruction of a certain property. 4 Appleman, Insurance Law and Practice, § 2123 at 40-41. Sincе Plaintiffs had reserved the right to repossess the property in question if George F. Heim reneged on his payment obligation, it is clear they would be exposed to financial loss should that property be destroyed. It is equally clear that they had an insurable interest in the property.
The second of Royаl’s affirmative defenses, that there was no coverage under the binder issued to George F. Heim because he never paid a premium on said binder, is not in conformance with the law. The issuance of a binder evidences a complete, temporary, or preliminary contract of insurancе effective from that time until issuance of the formal policy or until rejection of the risk. 12 A Appleman,
Insurance Law and Practice,
§ 7227 at 149,
Carideo v. Phoenix Assurance Company,
The last surviving affirmative defense of Royal, the contention that its coverage of the Heim/Kellner property was in the nature of excess coverage to be used only after the primary insurer, Aetna, had disbursed the limits of its poliсy to the Plaintiffs, requires more detailed analysis. It must be noted that Royal never actually issued an insurance policy on the building which burned. Any coverage thеy provided on that structure stems from the binder discussed previously herein in relation to Royal’s lack of consideration defense. Royal would have us dеtermine that, since the binder was to be incorporated into an existing policy which covered the contents of the burned structure and the contents of another building in Montgomery County as well, its coverage was in the nature of “blanket” insurance and therefore excess to the more specific policy provided on the same site by Aetna. Royal then cites Pennsylvania cases which arguably hold that when two policies cover the same loss and one specifically covers the damaged property only while the other covers a variety of risks including the damaged property, the former policy is primary and the latter excess.
This Court cannot reach that conclusion in this case for several reasons. First, we are not willing to make the assumption that the binder actually issued by Royal would have ultimately become part of a “blanket” policy. Even if we were to makе such an assumption, the fact remains that the binder issued by Royal is the document that controlled the extent of its liability in this situation. As noted earlier, binders are effective until supplanted by a formal policy or the company gives notice that it has rejected the risk. Since neither of these events occurred, we are-unwilling to dis *334 cuss the nuances of a “policy” which never existed.
Thus, Royal’s binder to Heim/Wham must be compared to Aetna’s policy with the Kellners. These two documents are equally specifiс in that they refer only to the structure at 148-50 Main Street, Jersey Shore, Pennsylvania. It is primarily for this reason that we cannot say, as a matter of law, that the Aеtna policy was primary and Royal’s excess or vice versa.
There are also factual distinctions between the instant case and those cited by Royal. First, in this case it is not the same party who secured both coverages. There were two distinct insurable interests in the property, the legal interest of the Kellners and the equitable interest of Wham/Heim. The cases Royal offers in support of its position 1 all concern situations where one party took out different types of coverage on the same location. We think this an important factual distinction. Second, both the poliсy issued by Aetna and the policy which Royal claims would have been issued in extension of its binder contain “other insurance” clauses which assert the right to bе considered as excess coverage. If this type of “boilerplate” is to be given effect what will be the recourse of an insured who takes out two equally specific policies with two separate carriers to cover the same property? If each can be considerеd excess neither would ever pay. One of the most widely respected commentators on insurance law has declared “... where one has conflicting excess clauses, they are mutually repugnant—in other words, they cannot be excess to each other since they are identical.” 8 A Aрpleman, Insurance Law and Practice, § 4909 at 399.
For the foregoing reasons we hold that Royal’s various unaddressed affirmative defenses are neither individually nor collectively persuаsive enough to warrant changing our original judgment in this matter. We note that Royal’s right to seek proration before the Pennsylvania Insurance Commission of аny sum it is forced to pay pursuant to this judgment is unaffected. Consequently, we issue the following.
ORDER
AND NOW, this 14th day of November, 1984, IT IS HEREBY ORDERED as follows:
1. Royal’s motion for reconsideratiоn of judgment in this matter is denied.
2. Aetna’s motion for reconsideration in this matter is denied. 1
3. Royal’s motion for summary judgment against Aetna is denied.
Notes
.
Meigs V. I.N.A.,
. Since Aetna has not filed a memorandum in support of its motion and since the motion itself was untimely with respect to Local Rule 604, it is unnecessary to rationalize our denial of Aetna’s motion.