*1 appellant’s mother survivorship, and since pro- (Supp.1974), Code Ann. § of the last survivor prior to death died vides : level, she of the first the beneficiaries hold persons more two or Where inter entitled to income never became mixed, estate, real, joint- personal, or an Tipton Tipton, est. v. S.W.2d before dies ly, (1) joint owner and one opinion App.1929, adopted). (Tex.Comm’n severance, estate joint in said his interest was, therefore, no There interest which remaining joint shall survive to the appellant to or she could have devised owners, descend joint but shall owner or from Mc which he inherit her. could in, to, legal or the heirs and be vested Estate, Hatton’s Estate v. Peale’s 248 S.W. joint representatives such deceased 1923, 103, writ Paso 106 (Tex.Civ.App. — El his manner as if owner in same ref’d). and ascertained. had been severed terest appellant’s mother had survived Provided, agreement Even if however, that beneficiary, or surviving level first joint last writing owners of way prior to her death had in some other who dies any joint owner interest portion of the to some surviving entitled become may made to be survive devisees, repre- income, heirs, or owners, her trust joint joint or no owner share not be entitled to from the sentatives agreement shall inferred her following death the trust income property is held in mere fact that go to thereof would the entire amount joint ownership. of beneficiaries second level those of the re A contention was made similar (Second) her. Restatement who survived Kountze, 130 jected in Chandler S.W.2d v. 143, at 302 of Trusts § 1939, 327, (Tex.Civ.App. — Galveston court was cor- of the trial Deaton, judgment ref’d), and in writ Shroff rect, affirmed. it is therefore (Tex.Civ.App . —Texar Chandler no As held in kana writ). sitting. GUITTARD, J., not all that Article 46 Shroff), (and echoed abolish of the Probate Code does doctrine
joint (and its concomitant tenancy otherwise where it would
of survivorship) is noth There
have created law. justify presumption
ing in the statute to legislative prohibit intent “the INC., contract, convey PLUMBING, will, McBROOME-BENNETT deed of Appellant, ance, among themselves providing pass question should common vest in survivor at and Westchester VILLA FRANCE, INC., law.” Appellees. Company, Fire Insurance No. 18350. is thus rule stated 15 Tex.Jur.2d Cotenancy (1960): at 159 § Texas, Appeals of of Civil Court Dallas. right In of survi- order create Sept. 19, 1974. necessary vorship cotenancy in a it is in writ- that there be an instrument Rehearing 17, Denied Oct. ing clearly the intention manifests right of survivorship be created.
Moreover, since the interest of
each of the of the second beneficiaries lev upon
el was made or her contingent his
Larry Gollaher, Coe, Thompson, L. Cousins, Porter, Dallas, appel- Irons & lant. Porter, Hightower,
Rick Dwight W. I. Johnson, Dallas, Billings, Guthrie & appellees. WILLIAMS, is re- Coverage hereunder sisting Chief of: CLAUDE Justice. Apartment house com- stricted to the Tex- impression in is a case of first on a 5 acre plex to be constructed subrogation rights of a involving Hwy. at Pioneer Dr. and tract negligent against a insurer
builder’s-risk Irving, Texas of the named insured. existing Actual values (a) Fire August 1970 Westchester On building(s) structure(s) or Company its builder’s risk Insurance issued and insured course of construction France, Inc., the to Villa hereunder; owner-general apartment of an contractor Nearly a month house construction. later France entered into a subcon- machinery, Builder’s tools (d) Plumbing,
tract with McBroome-Bennett building, equipment in insured plumbing Inc. for certain work to be done premises temporary structures or on *4 apartment project. March On building against or dam- of said loss Plumbing, 1971 while McBroome-Bennett resulting light- fire and age from performing Inc. was its a contract fire oc- windstorm, cyclone, ning, tornado or damaged curred which building. is It hail. stipulated that negligence employees of of Property policy Excluded: This does 2. McBroome-Bennett Plumbing, Inc. was the not cover: proximate cause of the fire and that dam- ages $15,719.37. amounted to Westchester
paid France, the loss to Villa Inc. and then (f) Contractors or sub-contractors brought this action in the name of Villa equipment, tools and except pro- France McBroome-Bennett to re- vided 1(d), under Clause above. paid. cover the amount The subcontractor answered was not liable it to West- McBroome-Bennett contends that it subrogation chester on the claim because occupy entitled to the status of a coinsured was an unnamed party coinsured under the party under this policy because it had sev- contract, and it counter-claimed eral interests within coverage for the balance due on its subcontract and contract, including: of the its (1) tools for loss of its destroyed tools in the fire. the building, which had a reasonable value The case was submitted to the court with- $25.00; of (2) destroyed own work jury, stipulated out facts and the the fire for which it had paid not been court judgment rendered against the sub- $545.00; the amount of its securi- contractor and in favor of Westchester for ty interest in the entire project for the bal- loss, the amount of the denied the subcon- ance due under the contract with Villa tractor’s tools, claim for its but allowed the France, $9,417.00 which was at the time of counterclaim Villa France for the $3,613.00 the fire and at the time of the balance due for plumbing services. We trial.
hold that the subcontractor McBroome- policy’s Westchester contends that Bennett was not an assured under coverage extends surance policy France, issued to Villa insured, the named for the accordingly we affirm judgment of the property of “property subcontractors as trial court. the assured or for which the as- pertinent provisions policy sured is liable.” are as follows: properly To question present- resolve the Property 1. covered: ed, cov- which has not been decided Texas
ers property of the proper- assured or previously, courts we are required to ex- ty for which the assured is liable con- amine apply certain well-settled rules of subrogation ref’d); Independence and construction insur- Indemnity writ Co. policies. Co., ance Republic Nat’l Bank & Trust (Tex.Civ.App. — Dallas Subrogation 1. is the substitu writ dism’d j.). w. o. another, person place of one tion possessor company, having whether An insurance as creditor as the 5. insured, claim, may some lawful that he*who is sub to its named so loss proceed against insured in a rights stituted succeeds to the the other its own subro- gation in relation to the debt or claim. action. By subrogation, equity, for the court de 6. term “insurance” is purpose doing justice exact between undertaking by party, as an one fined transaction, given places in a one “insurer,” usually protect called the them, legal right to whom a does not party, generally designated other as the position belong, of a to whom “assured,” arising “insured” or from loss right belong. does Sub Tex.Jur.2d risk, named consideration rogation at 429 § re the terms and under conditions Subrogation has been characterized cited. An insurance “pure Texas as a equity,” courts as a and the entered into between insurer equity,” “wholesome rule of and as “a doc insured, by which each becomes belonging trine an age enlightened perform obligations bound to assumed *5 policy refined, jus although natural policy in of 32 the insurance. Tex.Jur.2d Little,
tice.” Chambers & Co. v. 21 S.W. 1, (1962). Insurance at 23 § 17, 1929, 2d 22 (Tex.Civ.App. — Eastland ; Perkins, writ ref’d) O’Brien v. 276 S.W. policy a fire the term “insured” In 308, (Tex.Civ.App. 1925), 315 — Amarillo usually refers to the owner the of nom, O’Brien, aff’d sub Shelton 285 S. insured, issued and to whom the is policy (Tex.1926). 260W. premium paid, the is whom does person appointed a to a include receive always par- 3. Texas courts have been portion proceeds the in case 32 of of loss. ticularly hospitable right subroga- of 1, (1962). at 24 Insurance § Tex.Jur.2d up- tion and in the have been forefront in As Brown declared holding Judge it. always endea- 7. Courts should Cockerell, 437, 428, Faires v. Tex. 31 88 in give vour effect to the to ascertain and 190, 194, (1895): 28 L.R.A. S.W. 528 parties to the contract. tention of the Perhaps the gone courts of state no have rule of of an strict construction applying further in the doctrine of sub- to de applied so as contract is not to be rogation than the court this state has meaning of contract or stroy plain the parties. United
to make a new one for Thomas, Casualty Medcalf & States Co. v. subrogation The doctrine of to 539, (Tex.Civ.App.—San 272 541 S.W. always given An interpretation a liberal and is 1925, writ). no nio enough every broad include instance person, which one acting voluntarily
has pri a debt give for which another was the court can 8. Where marily which, preserv liable equity good and which in while policy a construction conscience discharged by should have been given the insured ing protection the latter. the insurer terms, Galbraith-Foxworth Lumber relieve also would 162, v. Long, (Tex.Civ. Co. 5 it against increased hazard from the 1928, App. ref’d); writ provide, Constitu then such construc undertook — Dallas Indemnity tion Armbrust, Co. v. “for such was adopted, 25 S.W.2d tion must be 176, 1930, (Tex.Civ.App. Royal Ins. parties.” Antonio intent of evident — San Tex.Civ.App. liable to Ry., party of a who could Texas & have Co. v. G. 154, 159, the fire (1909, negligent writ subcontractor for S.W. ref’d). property, damage its tools and other be to recovery would allow such general 9. The rule permit an insurer reimbursement of language doubtful contained in an insur deny paid to its assured. To losses ance is to be construed favor and un- right subrogation surer its here insurer, operates only insured and presented der the circumstances after insured has been determined and not equity principles contrary to basic in deciding whether a certain individual justice. belongs class described policy, person is not a and a third who relationship true usually ato contract of insurance in the carefully examined should be in his not entitled to a strict construction law. West- light foregoing rules of favor in whether the determining contract an insurance chester entered into was made for his benefit. Insur C.J.S. insured, Inc. with one named ance at 1226 § Only paid the insurer a the named insured principles premium protection these in the in applying
While law set forth presented, here we resolving question policy, protecting it its lia surance impressed policy. are made bility with statement for losses enumerated Ford, corresponding The Honorable President of ob Gerald was created Thus there who, States, speech part parties. United deliv- On of both ligation law, September 1974, said, McBroome-Bennett,. ered “The sub the other hand contractor, divine, respecter both picture human and is no had not even entered the persons, respecter law is at the time the was issued West- France, Inc.; chester it realities.” to Villa was not a itself; pre paid no to the contract are the of the case What realities consideration, miums or other and it *6 They simple enough. before ? If us seem in no obligated manner to the insurance France, insurance, there no had been Villa company. the possible Its contact with undoubtedly Inc. would have had a cause if policy part proceeds is receive to the plumbing of action the subcontrac injures is a loss that its interest and there tor, McBroome-Bennett, damage for the Villa for Thus it is ob France is liable it. proximately by negligence of caused the viously property that the interest and true the latter. The mere fact that subcon the tools to the were belonging subcontractor property the tractor also had some on policy the to the extent of premises damaged which was also would loss, liability Villa France’s their for France, right not the Inc. contract, affect of Villa nothing in there is the terms of the damage. to is recover for its That the equity, says in or at law or which that this of action to which the insurer automatically cause plumbing fact makes the sub subrogated, coinsured, Westchester was and its subro- as that term is de contractor gation rights destroyed on should not be property The of the fined. ground
the the insurer request tenuous that was at the at the was site of Villa differently, applicable yields 1. Stated in Justice The Cardozo a result which is felt to (1921) unjust, Nature the Judicial Process 23 be the rule is reconsidered. Also, dissenting, said: Mr. Harlan Justice principles Rights Cases, 3, 26, The rules and have case law the Civil 109 U.S. 3 S.Ct. truths, 18, 33, 835, (1883), never been treated as final but as L.Ed. said: working hypothesis, continually retested in It is the words of the law but not. great law, laboratories of the the courts internal sense of it that makes the law. justice. Every experi- body; new case is an letter of the is [t]he law accepted ment; if and rule which seems sense and reason of the law is the soul. property jobsite, on and other con- tools France, France could and hence Villa binding if be or would not Westchester ceivably to the subcontractor ‘be liable subrogation rights expressly deprive it its valuable They were cov- they were lost. theory dealings ap- that the between France’s extent of Villa to the ered mysteri- in some However, pellant and France negligence Villa for them. in- appellant is an property others ous manner constituted subcontractor to policy. policy it covered sured under as the stated not covered property (2) of the assured (1) the presented by analagous An situation is is liable. property for assured which the in cases where the lessor the Texas courts Clearly, is not liable for the Villa France procured paid for the negligence subcontractor’s Villa property The courts have held that leased. is not just clearly negligence as in- payment of the insurance does not A France. con- owned Villa guilty of the lessee ure to the benefit personal in- tract of insurance is property. wrongfully damaging the leased indemnity. sured and is for his It must Puckett, City Tex. Lines v. Wichita any possible be- nexus borne mind that 894, 295 S.W.2d insurer tween the subcontractor and the by the position rationale of this was stated under this is tools and his Corp. Supreme Theaters Court Publix liable, at the site which Villa France 304, 313, Powell, 123 Tex. while nexus in the sub- between them as: rogation action his moneys payment of such property of another. If Villa France defendant, procured by being appellant’s and other tools “liable” either or re- they having jobsite, at the its insurer was ob- part satisfy in or his ceived to whole ligated pay France the entire advantage liability, he can derive no loss, by appel- including the loss sustained damages for mitigation therefrom lant, regardless the loss of the fact permit a reduc- which he is liable. To by appellant’s negligence. was caused ground damages tion of on such discharged has assumed and Westchester nothing, pay wrongdoer be to allow obligation, and now seeks enforce in- take all of a the benefit equitable right (and contractual) premium. paying surance without appellant, subrogation as appellant caused the If had been loss. has just as a lessee suggested It is insured, if had been named an there his con- premises an interest in agreement indicate an evidence to becoming a lessor, tract with the without appellant as to consider the insurer *7 case coinsured, in this the subcontractor sured, then, pay ap- the insurer could not prem- has a similar limited interest pellant its loss with the with one hand and the same France, and for ises of Inc. Villa guise other hand take it back under the should case as stated in the Publix reason subrogation. But that is not the case we not be treated as a coinsured. agreed have. Westchester has never to pay anyone policy this but Villa in a case is true that itWhile France. Assume France fit to Villa saw meaning, an insurance as its doubt to appellant’s recognize “liability” its for strictly against policy should be construed property jobsite and included insurer, of the liberally in favor and larger loss in its claim Westches- insured, rule. Nev there limits this are ter, paid and the entire that Westchester are consid contracts ertheless insurance claim to The fact that Villa Villa France. contracts, parts all taking ered as other appellant pro- part France to of the certain giving them together and thereof Westchester, ceeds it received in rec- from carry to meaning out and effectuate as will par- ognition “liability” appellant’s extent the intention of for the fullest 39 Selby, fire, tornado, hail, policies All to ties. American v. etc. Ins. Co. United 162, 168, to the be available Contractor. Tex. in 44 importantly, stated (1960). More as shall Insurance: The Subcontractor supra, this strict construction § C.J.S. to the certificates furnish insurance operates after policy only an insurance as follows: contractor not in has been determined and insured be- deciding a certain individual whether
longs insured class described liability, Comprehensive general prin- policy. Appellant ignore would these see attached certificate an ciples labeling the subcontractor property was because his (merely insured Attached to the contract is certificate it) covered if France was liable Villa appellant Mc- insuring of insurance strictly and thereby construing France Broome-Bennett and issued Villa By this company. the insurance Company, showing by the Insurance Select changed process the contract be would appellant’s attempted compliance with covering from one Villa France’s of the Thus it the terms subcontract. one property the subcontractor’s again realities of becomes clear that the negligence to covering the subcontractor’s parties the case are none of the
others,
thereby
doing
violence
in-
or
ever
the subcontract
making a
prohibits
rule
courts
which
tended the
insured un-
subcontractor
be
parties.
new contract for the
The subcon-
policy.
der the
tractor
an ac-
is not a named insured nor
by merely
recipient
being
tual
insured
property
If we assume that the
interest
proceeds
allowed to
and should not be
consti
subcontractor is such as to
contract.
invoke a strict construction of the
tute the
an insured under
policy, then the realities of
Westchester’s
in de-
What are the realities of this case
the case would demand that such subcon
parties to
termining the intention of the
tractor be denominated a
insured
limited
original contract?
record
de-
insured,
certainly not
special
void of
evidence that Westchester
place
legal
insured as would
the same
Inc.,
France,
the original
Villa
France,
status as Villa
This would be
Inc.
question,
intended that
ever
in keeping with the
of Paul Tish
rationale
merely
tem-
might
be
because
Guidice, Inc.,
Carney
man
Del
Co.
&
porarily
legally
liable for some
A.D.2d
N.Y.S.2d
terest
said sub-
the subcontractor
owned
Behunin,
Employers’ Fire Ins.
Co.
automatically
would
become
contractor
F.Supp.
ap
this
(D.Colo.1967).
Under
clothed
the status
with
of coinsured
proach
be consid
the subcontractor would
thereby
protected by the entire
become
his
ered an insured
to the extent
Indeed,
be-
agreement.
the subcontract
limited interest
the tools and
McBroome-
tween
Inc. and
site
that he has at the construction
provide ample evidence
Bennett seems to
protected
from his
would
to insure
going
Villa France
beyond
loss
causes
to other
and it was not
subcontractor’s interest
policy.
his interest and
au-
*8
intended that
subcontractor
and
more
This attitude
construction would
tomatically
full-fledged insured
become a
comport
equity
good
and
reasonably
with
policy.
under
the subcon-
original
In
practice as
as the well-settled
business
well
part:
in
provides,
tract it
principles
Nor
of law above enumerated.
in
agrees
this
a harsh limitation
would
seem to be
The
Fourth.
insur-
the fact
the subcontractor is
carry
view of
that
. also to
sufficient
pay
policy
to the
and did not
not a
fully protect his work
ance to
opinion
clearly
premiums
demonstrates
Gage
or owe
duties
insurer.
the Louisiana
in
decision follows
Fire In-
would
far more
line
Such
result
be
has
parties.
case which
Company
surance
with
obvious intent of the
applicable
not to be
demonstrated
Appellant’s
from oth-
upon
reliance
cases
presented. Finally,
situation here
factual
Fire Ins.
jurisdictions
er
such as Louisiana
undisputed
is
Gage
in
it
subcon-
Co.,
Royal Indemnity
Co. v.
41 however, holds, the subcontrac- “counterclaim,” jority that to mention rule fails only the extent “to “cross-action, tor’s tools were which to but includes liability loss.” their France’s attitude place in the defendant extent will opinion to mean interpret I know that plaintiff.” judicially We aof unless are not covered long in subcontractor’s tools has term “cross-action” assured, France, is liable named lawyers to des- Villa among use Texas common particular cas- for the specifical- type pleading more ignate the subcon- the loss of the ualty in Tex. which caused ly designated as a “counterclaim” example For see 32 tractor’s tools. R.Civ.P. 97. Tex.Jur. 4, Counterclaim, Setoff, at 186 2d Etc. § (1964). Legislature that the interpretation may We Although conclude this allow the intended 3927b article plausible reading, on first it overlooks clerk a for each counterclaim property-in fee distinction in long-established $10 filed, decline to "delete and we therefore merely in law. If the contract surance this item from the cost bill. in and insured’s “interest sures the named property, for” certain or uses liability judgment trial is af- court equivalent language, then it covers firmed. prop assured in the interest of the named his for the erty described and GUITTARD, J., dissents. Podolsky, 115 others. In re 1940); Royal Allen (3rd F.2d 965 Cir. v. GUITTARD, (dissenting). Justice Co., (Tex.Civ.App 931 Ins. 49 S.W. . —Aus 1899, ; ref’d) Minneapolis, P. tin writ St. agree I cannot Fire In- Westchester Co., Minn. Ry. Home Ins. 55 & v. S.S.M. Company subrogated surance 236, the other 815 On N.W. damages re- claim of Villa Inc. for hand, property in if the contract insures sulting from the of McBroome- insured is specified places “for which the interpret Plumbing, Bennett As I Inc. in liable,” equivalent language, or uses light applica- insurance contract is held to attach to the surance authorities, ble McBroome-Bennett was owners, and for the benefit of unnamed party, unnamed coinsured at least to the indemnify as merely the named does extent premises of its tools on the at the against liability in tort sured or contract fire, time of the and I do not a prop- think context, term In this “lia the owner. erty insurer should be entitled to recover restricting cover is not construed as ble” one insured for the amount of liability of the named age legal asr a loss it pay has had to to another particular question, loss in sured for same contract. Accord- the owner of extending coverage but as ingly, I would judg- reverse and render in the contract for property described ment that nothing. Westchester take responsible assured is which the named Rutgers Fire general sense. Globe & Insurance Coverage States, F.2d 696 Ins. Co. United majority opinion concedes that the ; Eagle Fire Ins. (5th 1953) American Cir. ; subcontractor’s 1939) tools were covered Gayle, (6th F.2d 116 Cir. Co. v. language of Anderson, contract to ex- 15 Tex. Ins. Co. v. Germania tent “liability” of Villa 551, France’s Civ.App. (Fort Worth- S.W. tools, because the 1897, ; terms no Pacific Fire Ins. Co. writ) “covers proper- Co., the assured or 99 S. Murdoch Cotton 193 Ark. ty liable,” for which the assured is ; consist- (1936) Home Ins. Co. v. Peoria W.2d 233 ing the apartment Ry., house to be construct- 178 Ill. 52 N.E. & P. U. ; ed and subcontractor’s tools located “in the Fire (1899) Penn v. Commercial Union building” Co., or “on the premises.” The ma- Ins. 233 Miss. So.2d
42 Co., Albany
(1958);
beneficiary
257 N.
as a
to the ex
Rouse v.
Ins.
tract
third
267,
424,
(1962);
property
125
its
C.
S.E.2d
426
tent of
interest
de
John
130,
Co.,
v.
v.
stroyed
ston
Charles Abresch
123 Wis.
the fire. See Home Ins. Co.
1
Co.,
395,
527,
(1904).
some of
101 N.W.
397
In
Baltimore
93
23
Warehouse
U.S.
Rutgers
;
(including
(1876)
these cases
Insurance
Globe &
L.Ed. 868
Cumis
Socie
762,
Bank,
Republic
of the
Germania)
ty
and
the unnamed owner
v.
Nat’l
480 S.W.2d
property
permitted
1972,
to recover
ref’d
(Tex.Civ.App.
was
writ
766
— Dallas
;
e.)
in a suit
the
In others the
Pro
Storage
insurer.
n. r.
Southern Cold
&
permitted
Co.,
recover
named assured
v.
Dechman
S.
was
duce Co. A. F.
&
73
owners,
(Tex.Civ.App.
for the
the
as
benefit
W.2d 545
Antonio
— San
recovery
1903,
lim
the contention that
should be
no writ);
v. Charles
Johnston
130,
395,
legal
Co.,
of the
liability
ited to the interest or
Abresch
101
123 Wis.
N.W.
bail-
All of
(1904).
named assured.
them involved
396
another,
although
ments of one kind or
and
opinion
majority
The
relies on Wichita
technically
have
not
may
Villa France
Puckett,
456, 464,
City Lines
156
v.
Tex.
bailee,
duty
similar to that
had a
(1956),
4S language Rutgers, from Pub quotation given similar Globe & property. *11 leased Germania, opinion, which have lic, majority in the and the other cases appears which particular Supreme language. the Court construed that Conse- language is of not the Texas, quently, escape that court the quotation by a I see no conclu- but is Hunt, property Mo. 16 S.W. sion on that McBroome-Bennett’s from Dillon premises by at some the protected the court is the was insur- (1891), which ei distinguish. regardless do not see how ance of whether pains to I contract particu- legally taken as this ther or Publix can be France was liable for Wichita applica casting on the soundness lar loss. doubt Germania, and
bility
Rutgers,
&
Globe
cited.
the other decisions above
Subrogation
Coinsured
Against
opinion
the
majority
The
also mentions
question
A
is
more difficult
whether
that
the subcontract between Villa
fact
may
claim the
likewise
McBroome-Bennett
requires
and McBroome-Bennett
France
protection of the insurance contract with
own fire
carry
McBroome-Bennett to
its
respect
property of
lost
Villa France
opinion also
insurance.
.
as a
negligence
result
the
Mc-
shows, however, that this
was
subcontract
employefe.
question
Broome-Bennett’s
This
nearly a
after
signed
not
until
month
by
fact
should not be affected
the
the insurance con-
had issued
Westchester
McBroome-Bennett was not named as
question.
tract in
The subcontract was not
because,
party
as
to the insurance contract
document,
contemporaneous
and West-
show,
attempted
I have
to
McBroome-Ben-
party
Consequent-
chester was not a
to it.
nett
whose inter-
was an additional insured
ly,
provides
interpreting
in
no assistance
expressly
est
covered. Neither should
was
the insurance contract.
question
by
party
the
be affected
which
Moreover,
provisions
since the material
paid
premiums, because if the addition-
question
in
were
insurance contract
premium,
pay
al insured did not
some-
contracts,
printed, like most insurance
benefit,
inquire
it for his
and to
one
use,
presumably
general
were in
the cir-
into
from the ad-
moving
the consideration
are
cumstances of
of little value
pointless if his
insured would be
ditional
determining
interpretation.
the correct
property
clearly
Nor should
covered.
method,
A more reliable
and one more
monetary
question
by
be affected
likely
consistency
to
interpreta-
result
in-
value
of the additional
interest
tion,
rely
judicial precedents
is to
inter-
aof
coin-
sured.
the interest
Whether
Presumably,
preting similar
in-
contracts.
twen-
party
twenty-five
sured
is
dollars or
companies
surance
draft
their contracts
dollars,
principle is
ty-five
thousand
premiums
set
of such
light
their
question is
put,
Simply
same.
precedents.
If
had drawn
pays a loss
not
whether or
an insurer who
Westchester
covering only the “in-
present
party
subrogated
to
insured
one
“liability
and its
terest” of Villa France
insured
party against
another
claim of
subcontractors,
I
for” the
loss.
negligence
whose
caused
agree
coverage
that the
was limited
opinion concedes that
majority
cit-
in the first line of cases above
as held
normally
sub-
cannot recover
insurer
did
use that
the contract
ed. Since
insured,
its
claim
own
rogation
language,
coverage
but extended
position
even if McBroome-
premises
takes the
property subcontractor’s
under the contract
liable,”
were insured
Bennett
I would
“for
the assured
its
tools and
Westchester,
the extent of its
question
this
choosing
presume that
fire,
it was not
contract,
destroyed by the
work
printed
language
forms of
damage negligently caused
sured for the
have the same
intended it to
construction
and,
party,
negligence
ought
there
each insured
of Villa
fore,
to be allowed
shift the risk
subrogated
would be
that Westchester
against Mc- one
them. The entire loss should be
France’s
claim
to Villa
insurer,
just
of the insured
as if all the
for loss
borne
Broome-Bennett
adopted in
view was
Paul
the contract were
property.
Guidice,
single
Carney
Del
owned
&
whose
Tishman & Co.
Inc.,
justi-
caused the
see no
N.Y.S.2d
loss.
I
36 A.D.2d
Employers’
fragmenting
fication
perhaps also
the contract
into
(1971), and
*12
Behunin,
F.Supp.
separate insuring
399
agreements
275
the
Ins.
v.
between
Fire
Co.
arrangement
although
parties,
insurer
each
the
and
of the coinsured
1967),
(D.Colo.
equivalent
treating
thus
party
have been
and
each
a
seems to
coinsured
as
in Behunin
stranger
the insurer
agreement
in-
separate contracts between
between the
ma
The
and
property
the
surer
the other
whose
and each of
subcontractors.
contrary
by
to decisions
holding is
is insured
the same
I
jority
contract.
would
hold, therefore,
be based on sounder
rule
I consider to
that the
insur-
which
Co.
subrogated
as
Ins.
not
reasoning,
against
Transamerica
er is
to a claim
its
Co.,
F.
Heating
Plumbing
applies
against
Gage
own assured
to all claims
a
v.
Ins. Co.
(10th
1970);
party
property
by
Federal
Cir.
insured
the
2d
whose
Tours, Inc.,
117 F.2d
Trail
same contract and is not
to a
v. Tamiami
limited
claim
Ins.
1941),
property
by
Louisiana Fire
loss
for
of
owned
the named
(5th Cir.
Co.,
Indemnity
(La.App.1949). contrary result would not be principles latter decisions rather my equitable these on which the view doctrine
In be- course, here subrogation be followed an insur- Tishman should of rests. Of than principles loss, er, pursue paying the after a is entitled to Tishman confuses cause liability with those its property against insurance the claim assured tort- .insurance con- Admittedly, the the party by insurance. who is not a insured feasor provide lia- question ought here contract. tortfeasor not to tract did Such insurance, McBroome-Bennett. the he bility insurance have benefit as property de- However, payment by it did insure if loss insurer would given my already it, discharge and I have for negligence. his He scribed it covers concluding position is in no that the insurer assert reasons and Mc- negligence. France has assumed the risk his property of both apply when the fea- Different considerations of the essential One Broome-Bennett. party is also tortfeasor as- insurer is that of insurance tures elementary insurance contract. Under resulting from of loss the risk sumes ‘ principles, an insured negligence Ins. Federal the assured. negligence any right of recov- should not create Inc., Tours, 117 F.2d Trail v. Tamiami Co. ac- ery part of the insurer who has view, 1941). my owner- In (5th Cir. risk cepted premium assumed the single ship of the results negligence insofar as it of such should assureds several assured the property insured. loss The question. con- subrogation affect each insured protect tract should point in opinion misses the majority The whether own its Fire attempt distinguish Louisiana him or to some belongs to lost Co., Indemnity Royal So.2d Ins. Co. v. insurer, party. The other insured Ins. Transamerica (La.App.1949) and Co., premium covering Heating the en- accepted one Plumbing has Gage Co. re- (10th 1970), which I F.2d 1051 Cir. has assumed the risk tire against McBroome-Ben- nothing ex- ter take above the views supporting gard recover McBroome-Bennett and that in Louisi- nett says that majority pressed. its tools expressly stipulated value of risk builder’s ana Fire property of Westchester. it covered provided that in- not otherwise “when subcontractors
sured,” and that no other at- a similar makes
provided. opinion ground Gage on
tempt distinguish relied in that case
that the no build- and carried the owner’s dif- These of his own.
er’s risk insurance if these cases pertinent might
ferences that McBroome- to establish
were cited Douglas by the al., Appellants, property was covered KAIN et Bennett’s because, ad- question, surance contract *13 ques- holding coverage mittedly, the NEUHAUS, Trustee, Appellee. W. Oscar lan- rests on contractual in those cases tion No. 839. However, I do present here. guage not I purpose. for that rely on those cases Appeals Texas, Court of Civil present con- language of the rely Corpus on Christi. Rutgers, Ger- light tract of Globe & Sept. 19, 1974. mania, cited above and the other decisions coverage of McBroome-Ben- to establish Rehearing Denied Oct. above ex- property, the reasons nett’s Gage plained. T cite Louisiana Fire and
support my conclusion when
negligent has been determined tortfeasor party, an insurer who has
be a coinsured subrogated a loss is not to one I
party’s party. claim a coinsured
regard holdings point appli- on that here, regardless
cable grounds negligent
which the were subcontractors parties.
held to be coinsured attempt majority opinion makes no Tamiami distinguish Federal Ins. Co. v. Tours, Inc., (5th F.2d Cir.
Trail
1941), which does not involve a builder’s view, policy, supports my since it
risk squarely principle that an
is based subrogated
insurer cannot be to a claim
negligence a coinsured be- risks
cause such is one of the agreed
which it has to assume. I reverse
For these reasons would and render of the trial court
judgment France and Westches-
judgment that Villa