*1 J57 proceeded represent tent counsel who him and who conducted the trial in his be- RUSSELL, Florence E.
half. the defendant or his had counsel Respondent, preliminary good faith that a believed way, help hearing would him in George PAULSON, Jr., M. Administrator Mitchell, Deceased, the Estate of Sharon ample opportunity request one. was We Company, United Pacific Insurance cor a suspect no such deliberate that that was poration; Factory Liability Mutual Insur attempted request was made. Rather he Company America, corporation, Compa and Automobile Mutual advantage take of the claimed defect ny America, corporation, Defendants procedure by charge moving to have Appellants. entirely. against him dismissed No. 10385. something entitled to.7 Such he was not Supreme Court Utah. complains defect as he would totally event have the effect Aug. 17, 1966. charged, but onerating him of the offense he subject to correction requested justice
so and the interests of required.8
so a trial
The defendant was afforded counsel,
by jury, represented by competent opportunity given full and fair was present accom his case. When that is validity
plished presumptions all favor judgment. or ir We find no error overturning
regularity justify which would Accordingly, affirmed.
it. it is
HENRIOD, J., McDONOUGH and C.
CALLISTER, JJ., JONES, and LEWIS Judge,
District
concur.
Lawrence,
cited,
therein
in-
73,
See State v.
120 Utah
note
and authorities
cluding
parte McCoy,
Ex
Cal.2d
by Gritton, Helen and owned the latter’s husband, when it struck an automo- Mitchell, bile an unin- driven Sharon *2 sured motorist. Sharon was killed accident administrator of her es- tate was named a defendant. Also as defendants were two insurance com- panies, Company United Pacific Insurance Factory Liability Mutual Company of America.1 Plaintiff was granted $10,000 judgment plus a default expenses against medical Sharon Mitchell’s settled, administrator. United without an- swering complaint, for the sum of $4,500. summary A judgment was entered against Factory $5,000, in the amount of prosecutes appeal. and the latter this interpretation This case involves the application relatively type of a cas- new ualty “uninsured motorist” insurance —the coverage. The with Unit- Grittons’ ed included this the Rus- as did Factory. The sells’ with respect of the two to this practically identical and both Iianni, Strong & Lawrence L. Summer- $5,000 person and contained a limit of per hays, City, appellants. Salt Lake for $10,000 per accident. Wayne Durham, Gary Theurer, C. L. City,, respondent. Lake Salt for pro- Both insurance” had “other The United visions. Gritton CALLISTER, Justice. reads: Plaintiff, Russell, injured Florence was * (cid:127)* * passenger while a in an automobile driven “Other Insurance.
1. Also named aas defendant is Automobile considered one and the same with Fac- Company tory. Mutual Insurance of America which, purposes appeal, of this respect bodily injury contains an “excess through being occupying Factory’s, quoted clause” to that while above, automobile, Factory appli- struck an uninsured contends is insured, However, cable plaintiff is a named insured to this case. such Rus- him, clearly sell insurance available to falls within the char- other similar “insured” not to damages “pro be deemed acterization of clause” then shall United’s and, conversely, applicable lim- is excluded from “ex- higher exceed the its clause,” e., plaintiff i. liability insurance and such an insured of this its of company an automobile a named insured, Gritton.5 not be liable under this endorsement proportion greater Factory contends that its excess than limit of this endorsement obligates pay only it to that amount ap- bears to the sum of such limit which the limits of exceed plicable limits of all insurance. other available 3 (Em- ance and such other insurance.” applied case, to the facts this phasis added.) Factory tention allow to avoid all *3 policy Factory The contains Russell liability. support position Fac- In of this provision:4 this tory Appleman, Law and cites Practice, 8, p. Vol. 400: * ** Insurance. “Other “ * * * an au- the owner of Where bodily injury respect to an policy with an tomobile or truck has a insured while an automobile clause, and the additional in- omnibus in- not owned named insured the non-ownership policy sured also has a apply only as hereunder surance only which that it shall excess insurance over other similar excess over and above stitute occupant, insurance available such valid, other collectible only apply this insurance shall then primary liabil- owner’s has the amount which ity.” part ap- exceeds the sum of the ' plicable pro of all such oth- there is a conflict Where between (Emphasis added.) clause, er insurance.” rata and an “other insurance” excess Which, case, plain- in this would be Known as an “excess clause.” Factory, tiff. Under her she accurately explained 5. This conclusion is was a “named insured.” concurring opinion of Mr. Justice “pro 3. This is know-n as a rata clause.” Crockett. imposed pri- majority courts have share of loss under the uninsured mo- up pro rata insurer and torist clause to the limits of the risk on the mary carry. The had contracted to court responsible only hold the insurer stated: secondary coverage of “ * * * prorate One clause seeks to
“The rata clause is considered portion of the loss while theory operative that on the paying any portion seeks to avoid the “oth- with the 'primary’ loss limits of the applica- required er insurance” for its are the same as the ‘second- limits of the tion; clause, the other the excess ary’ policy. circularity The of the inter- held to limit its claiming action of the two secondary coverage, leaving pro rata pay the other must first what makes policy.” insurer liable to the of its limits repugnant. them repugnancy, The urges adopt court Lamb-Weston, requires that clauses minority view that the “other insurance” disregarded entirety. be in their In the mutually repugnant are case, instant we hold that the two clauses there is no rational basis to find has repugnant may not, therefore, primary liability and therefore each com- given effect.” pany should pay a share of reasoning Oregon judgment up policies. court to the limits of the persuasive, adopt but we are evidently constrained to adopted by This view majority imposes primary rule which lower court. liability on the rata insurer and sec- In Smith v. Pacific Automobile Insur- ondary liability on the excess insurer. In Company,8 where the issue was iden- page 65 Columbia Law Review at 327 it is case, tical to the Oregon instant Su- stated: preme Court held that the “other insur- “ * * * passenger’s ance” clauses of a and owner’s approach has been op- both of which referred to and ground criticized on the its result upon availability erated depends solely of other insur- look- *4 repugnant, ance were passen- first, and that the ed to and that favoring of ger’s insurer was liable rata rationally for its clause has excess not been 319, (1965). 431, 65 Col.L.R.ev. 326-327 80 Or.Adv.Sh. (1965); Firemen’s Ins. Co. v. St. Paul g. Oregon 7. E. Lamb-Weston Inc. v. Co., Or., Eire and Marine Ins. 411 P.2d 110, Automobile Ins. 219 Or. (1966). P.2d 346 P.2d A.L.R.2d 485 (1959); Smith Pacific Ins. Automobile Ibid.
Ifil merely justified carry-over is a from what a rational is basis the intent of —it judicial experience property industry insur- the insurance in its use of such supported by ance field is not up payment that clauses to set order of same consideration in area payable prevent auto- amounts double liability Despite recovery.” mobile insurance.
validity criticism, majority The court it were observed that not approach conflicting pro rata and ex- other, company for the the loss covers appears cess clauses in most cases con- to the extent of stated its limits. The court sistent the intent insurers. that clause excess sure, provision To be excess in an simple surer relies is more a excess than automobile does payment clause. It not convert into ‘true’ excess payable excess between the amount insurance, usually which is issued at a other insurance and its limit. own Where premium. Nevertheless, reduced where here) equals (as the other insurance limit typical in a excess clause inserted limit, or exceeds the insurer’s liability policy, the usual in- escapes liability, insurer as- tent the insurer is that will up sures to the some limit from only coverage secondary afford when source.
loss is covered ‘other insurance.’ On The court stated: the other a that limits Exchange’s “In addition to the fact only ex- a limited mixed excess clause is or usually coverage event of concurrent cess-escape here not have clause we do intended to when become effective causing or car driver owner of the primary other valid and collectible actually damage dif- or This is available.” pro- type ferent it does In Burcham v. Insurance Ex- Farmers against liability ben- tect but is an added change,9 identical the court encountered the legally pay efit what the insured issues as in the as well as clauses against the entitled to owner recover instant The court it is case. stated that operator of an uninsured automobile. majority now far the that the view * * * say basis to there is no Here given preferred effect and by Surety has the Naurkal auto insured rata clause. over primary is from unless it always expressed holding intention for so “The basis been es- may, however, justified principle and from has clear.. (1963). 9. 255 N.W.2d Iowa *5 162 plaintiff to collect to the allow to and courts that
tablished
as
of each
policy limit
tent of the
similar
other
not to be considered
ance is
in
equally
absurd
plaintiff,
asked
available.”
policy limitations.
positive
face of
to
contention that a mixed
response
In
* * *
companies intended
clear the
over
preferred
excess-escape
clause
insureds
coverage and the
less
to sell
clause,
that the
stated
the court
rata
occupying an au-
buy
less
‘while
escape
no-liability
of the excess
or
feature
in-
by a named
not owned
tomobile
complete defense
policy affords a
insurer’s
”10
sured.’
in
same
limits are the
seriously considered
court has
policy.
and Burch-a
reasoning of both the Smith11
The court stated:
compelling rea
no
m12
can find
cases and
may
reasoning
be criti-
as
“Though
majority rule
departing from
son for
arbitrary,
believe
we
limits
applicable
cized
circular and
as
stated
Burcham.
the insurance
rule
Gritton’s
the better
where
in both Russell’s
except for
person.
liable
companies
$5,000 per
would be both
Thus
policies were
other,
excess-escape
clause
did
applicable
the Russell
not other similar
to be
of Gritton’s
should
limits
held
exceed the
policy containing
surance to the
and clear
language is free
policy. The
clause,
conversely, the
rata
limits of Russell’s
ambiguity, that since
applicable is re-
Gritton’s,
cov
policy did not exceed
policy.
insurance as used
garded as
applied
to Russell’s
erage cannot be
excess-escape
A fair
clause.
No costs awarded.
Reversed.
expressed in
intention as
struction of the
company intend-
policies is
that each
McDONOUGH,
HENRIOD,
J.,C.
intend-
provide
and the insureds
ed
J., concur.
stated
buy coverage
the extent
ed
*
**
died
WADE,
arguments, but
J., heard the
excess-escape
To
clause.
opinion was filed.
of both
before the
disregard
Co.,
Cal.App.2d
opin
reasoning:
232
Insurance
of the Burcham
Automobile
4,
10. The
(1965);
approved
Cal.Rptr.
subsequently
516
42
been
ion has
Fidelity
Guaranty
Indemnity
v. Sell
Co.
Es
Co. v. Baker’s
States
Globe
App.1965);
ers,
(Florida
tate,
658,
170
N.Y.S.2d
car of Mrs. Gritton. circum-
sion in her
that under those
“ex-
stances would be liable