The opinion of the court was delivered by: BECKER
Our task in this case is to allocate insurance liability between two carriers, Continental Casualty Company (Continental) and the Insurance Company of North America (INA), each of which has insured on the face of its policy the loss incurred in a fatal highway accident. The accident, which took place on June 17, 1971, and resulted in the death of Kenneth Leigh Toney, involved a truck which had been leased by Rebel Truck Rentals, Inc. (Rebel) to Tifton Aluminum Company (Tifton), a subsidiary of the Aluminum Company of America (Alcoa).
In the suit brought in this court by the administratrix of the decedent's estate against Tifton, the parties reached a settlement agreement by which $375,000 was to be paid to Toney's widow and children. The settlement which was negotiated by plaintiff's counsel in our chambers, involved the three insurance companies having coverage for the accident. The first $100,000 was paid by Employer's Commercial Union Insurance Company, the primary insurer of Rebel's leased truck, to the limit of its policy coverage. Continental, Rebel's excess insurer, then contributed $150,000. The present dispute centers upon the liability for the remaining $125,000 as between INA, which covers Tifton through a "blanket" policy with Alcoa, and Continental.
At the time of the settlement plaintiff's counsel agreed to wait for the unpaid $125,000 pending our determination of the coverage question, and INA and Continental agreed that whichever was ultimately found liable would pay that sum plus interest.
Both the Continental and INA policies contain "other insurance" clauses which purport to subordinate their respective coverage to coverage by any "other" insurers. Because we have found these clauses to be irreconcilable in that the application of one would negate the other, we have treated them as "mutually repugnant," requiring that in the first instance both insurers share liability pro rata, i.e., in proportion to the relative limits of the coverage of each insurer. However, we have also determined that after the pro rata apportionment is calculated, INA's liability must be reduced by $50,000, the amount provided in INA's deductible clause. Correspondingly, Continental's liability as excess insurer must be increased by that amount because the $50,000 deductible, when given effect, produces a loss covered by no other insurance.
The approach which we have just summarized yields our apportionment of insurance liability between INA and Continental; the following discussion will explain the basis for this approach.
The clauses which we have found mutually repugnant reflect the now customary practice of insurers to attempt to reserve for themselves a position as insurer of last resort, so to speak, should an insured prove to be covered by some additional (insurers). The problem is that all insurers are aware of the tactical device and, therefore, the "other insurance" clauses purporting to limit coverage to the excess over all other collectible insurance often appear in all the policies of multiple insurers just as they do in this case.
The INA policy provides (in part) in Condition F(1) as follows:
If other collectible insurance with any other insurer is available to the insured covering a loss also covered hereunder (except insurance purchased to apply in excess of the limit of liability hereunder), the insurance hereunder shall be in excess of, and not contribute with, such other insurance.
The conflicting clause in the Continental policy
appears in Condition 10 and states:
If with respect to loss and ultimate net loss covered hereunder, the insured has other insurance, whether on a primary, excess or contingent basis, there shall be no insurance afforded hereunder as respects loss and ultimate net loss; provided, that if the limit of liability of this policy is greater than the limit of liability provided by the other insurance, this policy shall afford excess insurance over and above such other insurance in an amount sufficient to give the insured, as respects the layer of coverage afforded by this policy, a total limit of liability equal to the limit of liability afforded by this policy.
The arguments of the respective parties relate to the legal significance of these clauses.
INA has claimed that Continental's other insurance clause is an "escape clause" and that therefore under the decision in Grasberger v. Liebert & Obert, Inc., 335 Pa. 491, 6 A.2d 925 (1939), Continental alone must pay the $125,000. An escape clause is one which precludes liability by an insurer in the event there is other collectible insurance. According to Grasberger, because an excess policy was meant to apply only above other applicable insurance, there could be no true excess coverage if the apparent underlying insurer was able to avoid any obligation to provide primary coverage. The court concluded that under the terms of the "escape clause" itself there was indeed no "other insurance" and therefore there could be no escape. Accord, Jamestown Mutual Insurance Co. v. Erie Insurance Exchange, 357 F. Supp. 933 (W.D.Pa. 1972), aff'd, 474 F.2d 1339 (3rd Cir. 1973) (escape clause versus excess clause). In the present case, however, both the INA and Continental other insurance clauses are patently not escape clauses but excess clauses: neither provides for "no liability" in case of other insurance, but rather each seeks simply to subordinate its coverage to that of the other insurer. Thus, even if Grasberger's analysis is still the law of Pennsylvania,
it is inapplicable to the facts of the instant case.
Because the clauses at issue here are truly mutually repugnant, the respective policies must contribute to the loss; hence we must calculate the ratios which the limits of their respective liabilities bear to the limit of their combined liability and then apply the ratios to the $125,000 at issue here. See Transport Indemnity Co. v. Home Indemnity Co., 535 F.2d 232, 239 (3d Cir. 1976). The single accident limit of INA's coverage is $8,500,000, and the limit of Continental's coverage is $2,000,000. Proration according to these limits renders INA liable for 81% of the $125,000 and Continental liable for 19%. In raw form this would make INA's share $101,250 and Continental's $23,750.00.