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AUTOMOBILE UNDERWRITERS, INC. v. FIREMAN'S FUND IN

November 16, 1988

AUTOMOBILE UNDERWRITERS, INC., Plaintiff and DONALD NELSON and PAULINE NELSON, Administrators of the Estate of ERIC G. NELSON, Deceased, Intervening Plaintiffs
v.
FIREMAN'S FUND INSURANCE COMPANIES v. LIBERTY MUTUAL INSURANCE COMPANIES



The opinion of the court was delivered by: WEBER

 On November 13, 1983, William Loving was driving a car rented from Ramsey-Sturman Ford while his was in the shop for repairs. While driving that car he struck and killed a pedestrian, Eric Nelson.

 The decedent's estate filed a wrongful death action against Loving in state court and a dispute quickly arose among the potentially responsible insurers. This dispute resulted in the declaratory judgment action now before us in which we must untangle 3 different insurers and the relative obligations contained in 5 separate policies. The policies in issue are:

 
1) Auto Underwriter's Policy : A personal automobile policy issued to William Loving. Liability limit is $ 35,000. The policy has an excess clause.
 
2) Fireman's Fund Primary Policy : named insured is Ramsey-Sturman Ford. Policy limits are $ 1,000,000.
 
3) Fireman's Fund Umbrella & Excess Policy : named insured is Ramsey-Sturman Ford. Policy limits are $ 5,000,000.
 
4) Liberty Mutual Primary Policy : named insureds include Ford Rent-A-Car and the policy covers lessees of rental vehicles. Liberty Mutual has acknowledged liability on the death claim under this policy and has paid policy limits of $ 100,000 to decedent's estate.
 
5) Liberty Mutual Excess Policy : named insureds include Ford and Ford Rent-A-Car. Policy limits are $ 5,000,000.

 The three insurers have filed motions for summary judgment with briefs and copies of all policies. All parties are agreed that there are no issues of fact and that interpretation of the competing clauses in the various policies is for the Court. After a review of the record we agree that this matter is ripe for disposition on summary judgment.

 DISCUSSION

 There is no dispute that Auto Underwriters's policy is applicable here, the driver William Loving being a named insured. At issue is the position of this policy in relation to the others on the loss. Auto Underwriters' policy contains the following "Other Insurance" clause:

 
If there is other applicable liability insurance we will pay only our share of the loss. Our share is the proportion that our limit of liability bears to the total of all applicable limits. However, any insurance we provide for a vehicle you do not own shall be excess over any other collectible insurance. (emphasis added).

 We turn to the other policies to determine if there is other collectible insurance.

 As noted above Liberty Mutual has acknowledged the applicability of its primary policy and has paid its policy limits of $ 100,000. As to its excess policy Liberty Mutual seeks summary judgment on the basis of the policy's "Definition of Insured":

 
The definition of insured in any and all underlying policies shall not apply to this policy and, for purposes of this policy, the unqualified word "insured" shall mean:
 
(1) Ford Motor Company, any Franchised Dealer of Ford Motor Company, and any wholly owned or controlled ...

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