would supply a driver who would be Preston's employee.
At the time of the accident, Safrit was that driver, and he was then and there under the lease agreement acting within the course and scope of his employment by Preston. The deaths and injuries which arose out of the accident resulted solely from Safrit's negligence. (Finding 8). Under those facts, of course, both Safrit and Preston would be liable for the damages resulting from the accident. Safrit directly, because his negligence caused the injuries and deaths, and Preston, derivatively, under the doctrine of respondeat superior, because at the time of the accident Safrit was Preston's employee acting within the course and scope of his employment.
The parties do not dispute any of the foregoing. Neither do they really dispute that the basic policies of insurance issued by Protective to Preston/Frontier as named insureds or the basic policy of insurance issued by Carolina to Safrit as a named insured provided primary insurance coverage for the damages arising out of the accident to their respective named insureds.
Beyond this point, however, the parties part company. Plaintiffs contend that Preston is an insured under the Carolina policy issued to Safrit as the named insured and that Safrit is not an insured under the policies issued by Protective to Preston/Frontier. Therefore, plaintiffs argue, the Carolina policy provided primary insurance for the accident and, at best, the Protective policies only provided excess insurance, which did not come into effect because the Carolina policy limits of coverage were sufficient to satisfy the settlements arrived at by plaintiffs with the accident claimants.
In addition, plaintiffs contend that since Preston's liability stems from the sole negligence of its employee, Safrit, plaintiffs are entitled to indemnity from Safrit and Carolina must respond under the policy which it issued to Safrit which contracted to pay on his behalf "all sums which [he] shall become legally obligated to pay as damages . . .", (Exhibit A to Plaintiffs' Complaint, Finding 2), as a result of occurrences such as the December 16, 1981, accident.
Defendant denies any liability to respond with primary insurance coverage for the December 16, 1981, accident. It contends that its insurance coverage was at best excess insurance because of a so-called Truckmen's Endorsement which was attached to its basic policy and that this excess insurance never came into effect because the coverage limits of plaintiffs' policies were adequate to satisfy the settlements made by plaintiffs. In addition, it argues that it is not liable to respond in indemnity under the complaint in this case because this issue was not raised in plaintiffs' complaint and by the time that it was raised in their briefs the statute of limitations had run. In any event, defendant argues, it would be liable only to indemnify plaintiff - Preston and not plaintiff - Protective and since Preston paid only its $ 25,000 deductible, that is the maximum for which the defendant could be liable.
For the reasons which follow, we hold that the Protective policies provided primary liability insurance coverage and that the Carolina policy provided, at most, only excess liability insurance coverage for the damages arising out of the December 16, 1981, accident and that defendant is not liable to reimburse or indemnify either of the plaintiffs either as a primary insurer, which was directly liable to provide coverage for the third-party claims arising out of the accident, or on a claim for indemnity by either plaintiff or for subrogation by Protective.
The basic Carolina policy was issued to Franklin E. Safrit as the named insured. It provided with regard to the persons insured as follows: