this insurance applies, caused by an occurrence and arising out of the ownership, maintenance or use. . . of any automobile. . ." The policy defines "automobile" to include a trailer. Section I also provided "excess insurance" to protect Farmland from liability with respect to a "hired automobile or a non-owned automobile" over any other insurance available to the insured. The policy imposed a $100,000 per person limitation on Section I's bodily injury payments -- a limitation which encompassed the "excess" as well as the "primary" protection delineated in that Section. As one of Farmland's insurers, Liberty contributed $100,000 to the Surowiec settlement fund, but expressly reserved the right to arbitrate or litigate the precise extent of its liability vis a vis Home.
At the time of the Surowiec accident, a "MANUSCRIPT EXCESS LIABILITY POLICY" issued by Home in favor of Farmland was also in effect. With respect to bodily injury arising out of an automobile accident, this policy provided Farmland with insurance for liability exceeding $100,000 per person. As another of Farmland's insurers, Home paid the remaining $25,000 to the Surowiec settlement fund acknowledging that Liberty disputed the relative amounts owed by the two companies.
Liberty contends that its liability in this case arises solely from the excess insurance clause of Farmland's policy and that, consequently, it and Home are dual excess insurance carriers who should equally share the $125,000 paid to Surowiec over and above the $100,000 contributed by Exchange Mutual. The Court does not agree.
Liberty focuses on the status of the tractor which collided with Surowiec. Since the driver was not an "insured" as defined by the policy, since the tractor was a "non-owned automobile" and since Novitch's Exchange coverage could be viewed as other insurance available to Farmland, the jury's special verdict did impose liability on Farmland in such a way as to trigger the excess insurance provision of the Liberty policy. However, the Novitch tractor did not "act" alone, but had attached to it the Farmland trailer. Consequently, Farmland's liability to Surowiec also stemmed from the "ownership . . . [and] use . . . of any automobile . . ." and was therefore covered, in the first instance, by the primary provisions of its Liberty policy. Manufacturers Casualty Insurance Company v. Goodville Mutual Casualty Insurance Company, 403 Pa. 603, 606-608, 170 A.2d 571 (1971); Aetna Casualty Insurance v. Ocean Accident Insurance Company, 386 F.2d 413, 415 (3d Cir. 1967). By virtue of its very definition, the excess coverage would become available only after the primary insurance available to Farmland had been exhausted. Because Farmland's primary coverage was depleted, only after the settlement fund reached the $200,000 mark, Liberty's "excess" obligation relates only to the remaining $25,000. Of course, since Section I has a per person bodily injury limitation of $100,000, Liberty could not be required to participate with Home in the payment of the $25,000 "excess."
To support the contention that the Surowiec accident triggered only the excess aspect of the Farmland policy, Liberty alleges that the trailer was uninsured and cites its omission from the list of "covered automobiles" in the policy's "Declarations" attachment -- an interpretation which, if correct, directly contradicts the apparently unambiguous " any automobile" language of Section I quoted above. Although insurance policies are notorious for their now-you-see-it-now-you-don't qualities, Farmland's coverage, at least with respect to this matter, is not so elusory. The enumeration of "covered automobiles" refers only to Section II of the policy, "Automobile Physical Damage Insurance," and not to the comprehensive provided by Section I. Consequently, the trailer's absence from that list is irrelevant to this case which involves a personal injury claim.
By reason of our conclusion that Liberty was not a joint excess carrier with Home, the Court need not determine what the respective contribution of each such insurer should be. As a primary carrier for Farmland under the circumstances of the Surowiec case, Liberty properly paid its full $100,000 primary obligation into the settlement fund.
Based on its analysis of the policy issued by Liberty to Farmland, the Court makes the following Conclusions of Law.
III. Conclusions of Law.
1. The insurance coverage provided to Farmland by Liberty in the circumstances of the Surowiec case devolved from the primary aspects of the March 1, 1969 policy, not from its excess insurance clause.
2. Home's obligation to provide excess coverage to Farmland arose only after the payments by Liberty and Exchange Mutual.
3. Liberty is not entitled to reimbursement from Home for any portion of its $100,000 contribution to the settlement paid to the Plaintiff in Surowiec v. Farmland Fairlawn Dairies, M.D. Pa., Civil No. 70-552.
In the light of the foregoing, an appropriate order directing entry of judgment in favor of Home will issue.
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