APPORTIONING COVERAGE AMONG INSURERS. the same risk. Aetna Cas. & Sur. Co. v. Merchants Mut. Ins. Co., 100 A.D.2d 318 (3d Dept.

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1 APPORTIONING COVERAGE AMONG INSURERS I. Introduction In selling insurance to customers, insurers are aware that the risk may at some point be simultaneously insured by another insurer. If an insured obtains multiple coverages for a risk, the result is concurrent insurance, that is, insurance providing coverage for the same interest against the same risk. Aetna Cas. & Sur. Co. v. Merchants Mut. Ins. Co., 100 A.D.2d 318 (3d Dept. 1984); aff d 64 N.Y.2d 840 (1985); B.K. General Contractors, Inc. v. Michigan Mut. Ins. Co., 204 A.D.2d 584 (2d Dept. 1994). In the event of a covered loss, the question then becomes: Which policy pays? Insurance policy language is written and poised for such a question with each insurer typically trying to place an onus of payment onto the other one. A court s burden is to apportion coverage among concurrent insurance. The course to that end has been characterized as a court s nightmare filled with circumlocution. Carriers Ins. Co. v. American Home Assur. Co., 512 F.2d 360 (10th Cir. 1975). Indeed, insurers have even contested the existence of concurrent coverage among policies. They have joined battle over the meaning of language concerning which of two policies was more specific in describing a risk, with one insurer seeking to make the more specific policy primary and the less specific policy excess. Courts, however, have been cautious when faced with involved semantic analysis. In such a situation, one court, eschewing judgments on a policy s degree of specificity in describing a risk, preferred to simply identify whether an identical risk was covered and then to apply established rules of interpretation and apportionment to policies that cover the same risk. Federal Ins. Co. v. Atlantic Nat. Ins. Co., 25 N.Y.2d 71 (1969). Those rules follow. II. Multiple Insurance Policies Covering the Same Risk Generally 1

2 Insurance policies employ the rubric of other insurance to refer to policies of different insurance companies insuring the same risk. Policies typically contain other insurance clauses in order to create a framework for apportioning coverage. These clauses can be divided into three categories: pro rata, excess, and escape or no-liability clauses. An example of an excess clause is as follows: If other collectible insurance with any other insurer is available to the Insured covering a loss also covered hereunder, insurance hereunder shall be in excess of, and shall not contribute with, such other insurance. A problem arises when policies providing concurrent insurance contain identical excess insurance clauses. The following rule applies in that situation: Where multiple policies exist covering the same risk and each generally purports to be excess to the other, excess coverage clauses cancel each other and each insurer contributes in proportion to its amount of available insurance. This is the rule of ratable or pro rata contribution. Lumbermens Mut. Cas. Co. v. Allstate Ins. Co., 51 N.Y.2d 651 (1980); Public Service Mut. Ins. Co. v. Firemen s Fund American Ins. Co., 82 A.D.2d 403 (1st Dept. 1981), aff d, 55 N.Y.2d 868 (1982); Tarolli v. Continental Casualty Co., 181 A.D.2d 1021 (4th Dept. 1992). The rule is founded upon the principle that a right to contribution exists among concurrent insurers in the absence of a policy provision for apportionment. Travelers Ins. Co. v. Life Assurance Corp., 28 N.Y.2d 458 (1971); United States Fire Ins. Co. v. Federal Ins. Co., 858 F.2d 882 (2d Cir. 1988). An example of a pro rata clause is as follows: The company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declaration bears to the total applicable limit of liability of all valid and collectible insurance against such loss. Similarly, the rule of pro rata contribution applies to policies with identical pro rata clauses. Each insurer must contribute in proportion to its available coverage. 2

3 To understand pro rata contribution, assume, for example, that an insured is liable for a $50,000 loss and has concurrent insurance through policy A and policy B. Policy A has a $100,000 limit and policy B has a $300,000 limit. Each policy contains an excess insurance clause (or, in the alternative, a pro rata clause). As a result, the clauses are mutually canceled and the policies contribute according to the ratio each policy limit bears to the combined total of their limits. The ratio of policy A s coverage to the total coverage is.25; policy B s is.75. Therefore, policy A owes $12,500 and policy B $37,500: Policy A: 100,000 Ratio:.25 Obligation: $12,500 (.25 x $50,000) 400,000 Policy B: 300,000 Ratio:.75 Obligation: $37,500 (.75 x $50,000) 400,000 The rule of cancellation is inapplicable, however, where its use would effectively deny and distort the plain meaning of policy terms. Lumbermens Mut. Cas. Co. v. Allstate Ins. Co., supra. Whether there will be such distortion turns on consideration of the purpose each policy was intended to serve as evidenced by both its stated coverage and the premium paid. State Farm Fire and Cas. Co. v. LiMauro, 65 N.Y.2d 369 (1985). Whether ratable contribution was bargained for must be shown by the presence of plain language in the policy. Farm Family Mut. Ins. Co. v. Allstate Ins. Co., 179 A.D.2d 965 (3d Dept. 1992). In Lumbermens, for example, the court analyzed policy language to determine the relative obligations of coverage among a primary policy, a non-owned automobile policy, an executive policy, and a catastrophe policy. Certain of these policies, the court held, were clearly excess to others. (See Part III). Typically, an excess clause is superior to a pro rata clause. For example, in American Transit Ins. Co. v. Continental Casualty Ins. Co., 215 A.D.2d 342, 625 N.Y.S.2d 653 (2d Dept. 1995), American Transit s other insurance clause specifically provided that the insurance was excess over any other collectible insurance, whether primary, excess or contingent. The 3

4 court held that the clause negated contribution and manifested an intention that the insurance be excess over any other excess insurance policy. Therefore, a pro rata clause in the other policy was required to be exhausted first. See also, Allstate v. Insurance Co. of North America, 215 A.D.2d 612, 628 N.Y.2d 137 (2d Dept. 1995); General Accident Fire & Life Assurance Corp. v. Salvatore Piazza, 4 N.Y.2d 659 (1958). Escape, or no-liability clauses, which nullify coverage when other insurance exists, are looked upon with disfavor. Insurance Co. of North America v. Continental Cas. Co., 575 F.2d 1070 (3d Cir. 1978). III. Multiple Insurance Policies Covering the Same Risk Automobile Insurance 11 N.Y.C.R.R (g) establishes mandatory other insurance provisions for automobile liability policies issued in New York State. The regulation implicitly recognizes the possibility that an owner may have more than one policy covering a risk and requires that the automobile insurance policy contain one of the following two provisions: (1) The insurer shall not be liable for a greater proportion of the loss that the applicable limit of liability of the policy bears to the total applicable limit of liability of all other valid and excess insurance over collectible insurance covering the insured against such loss; provided, however, with respect to an automobile, other than a newly acquired automobile, for which insurance is provided under subdivision (d) of this section, the insurance shall be excess over any other valid and collectible insurance. (2) The insurance afforded by this policy is primary insurance, except where stated to apply in excess of or contingent upon the absence of other insurance. When this insurance is primary and the insured has other insurance which is stated to be applicable to the loss on an excess or contingent basis, the amount of the company s liability under the policy shall not be reduced by the existence of such other insurance. When both this insurance and other insurance apply to the loss on the same basis whether 4

5 primary, excess or contingent, the company shall not be liable under this policy for a greater proportion of the loss stated in the applicable contribution provision below: (i) Contribution by equal shares. If all of such other valid and collectible insurance provides contribution by equal shares, the company shall not be liable for a greater proportion of such loss than would be payable if each insurer contributes an equal share until the share of each insurer equals the lowest applicable limit of liability under any one policy or the full amount of the loss is paid, and with respect to any amount of loss not so paid the remaining insurers then continue to contribute equal shares of the remaining amount of the loss until each insurer has paid its limit in full or the full amount of the loss is paid. (ii) Contribution by limits. If any such other insurance does not provide for contribution by equal shares, the company shall not be liable for a greater proportion of such loss than the applicable limit of liability under this policy for such loss bears to the total applicable limit of liability of all valid and collectible insurance against such loss. As found in today s plain language policies, the first option of (g), which embodies that rule of ratable contribution, may read as follows: 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. The operation of the second option of (g) depends on the scheme contained in another applicable insurance policy. If the other policy provides for contribution by equal shares, then that method is operative; if it does not provide for contribution by equal shares, then the rule of ratable contribution applies. 5

6 Subpart (i) states the rule of contribution by equal shares. Each policy matches the other dollar for dollar until exhaustion of the limits or the loss is paid. To illustrate this method, assume three applicable policies with the following limits of coverage: A--$100,000; B--$200,000; and C-- $1,000,000. The insured s liability is $600,000. Round I Round II Round III Total Policy A: $100,000 (exhausted) $100,000 Policy B: $100,000 + $100,000 (exhausted) $200,000 Policy C: 100, , ,000 $300,000 $300, , ,000 = $600,000 Subpart (ii) states the rule of ratable contribution as found in the first option of (g). It produces a different result: Policy A: 100,000 Ratio:.08 Obligation: $48,000 1,300,000 Policy B: 200,000 Ratio:.15 Obligation: $90,000 1,300,000 Policy C: 1,000,000 Ratio:.77 Obligation: $462,000 1,300,000 Section (g) mandates the use of these methods when insurance policies are deemed to be sharing an identical risk. Yet, as discussed in Part II, a threshold question is whether two policies share the risk or whether one is excess to the other. Policies providing coverage against automobile liability are varied. Insurers are free to create excess, catastrophe, and umbrella policies, all of which are not intended to provide primary coverage. The rule of cancellation applies here also. Two policies purporting to be excess to underlying policies will be subject to ratable contribution with the other. Given the freedom of insurers to craft policy language, courts are oftentimes called upon to scrutinize policy language in order to rank policies, that is, determine the duty of one insurer 6

7 relative to another. In Lumbermens Mut. Cas. Co. v. Allstate Ins. Co., 51 N.Y.2d 651 (1980), the Court of Appeals confronted insurance policies with different coverages. In 1974, Jack Tantleff was in an accident while driving a car owned by a corporation. Four policies provided coverage: 1. A primary insurance policy issued by Allstate insuring the corporate owner in the amount of $300, A policy issued by Allstate to the driver s mother (Judith Tantleff) insuring her car, which provided that there would be coverage for a relative of the named insured if that relative were charged with responsibility for and was involved in an accident while driving a non-owned automobile. The policy stated: If there is other insurance the insurance with respect to a non-owned automobile shall be excess insurance over any other collectible insurance. 3. A policy issued by Allstate to the driver s father (Jack Tantleff). Described as an Executive Policy, it provided that Allstate would be responsible to pay the net loss in excess of insured s retained limit. The term retained limit was defined as the sum of applicable limits of underlying policies in Schedule A hereof and the applicable limits of any other underlying insurance collectible by the insured. Judith Tantleff s policy was listed in Schedule A. The executive policy further stated that it was to apply as excess insurance and not contributory to other collectible insurance. 4. A policy issued by Lumbermens to an organization (Twin County Grocers) of which the corporate vehicle owner was a member. This policy was labeled a catastrophe policy. It provided for coverage in excess of any other valid and collectible insurance available to the insured, whether such other insurance is stated to be primary, contributory, excess, or contingent. 7

8 The court held that the Allstate primary policy (number one) had primary responsibility for the loss. The last three policies all provided a form of non-primary coverage. Allstate argued that all three contained essentially similar excess clauses, that the excess clauses canceled each other, and that each should contribute on a pro rata basis. The court disagreed with Allstate. It held that the policy issued to the driver s mother (number two) was a simple excess policy. The executive policy (number three) expressly contemplated being triggered only after policy number two was exhausted. In other words, the parties to policy number three did not bargain for ratable contribution with policy number two in the event of an accident. Similarly, the parties to the Lumbermens policy did not bargain for ratable contribution with any of the Allstate policies. It specifically provided coverage in excess of all other coverages available, including excess coverage. The court also presumed that the small premium for the Lumbermens policy reflected the unlikelihood of its coverage being triggered. The Lumbermens case demonstrates that a pecking order among multiple layers of coverage must be determined based on analysis of policy language and the amount of premiums paid. New York applies a functional analysis to separate lines of insurance. Insurance policies should be read in light of the role it is to play and their purpose should be sought by reference to the common sense meaning of the terms that describe a policy s coverage vis-à-vis other insurance. Jefferson Ins. Co. of New York v. Travelers Indem. Co., 92 N.Y.2d 363, 681 N.Y.S.2d 208 (1998). In State Farm Fire and Cas. Co. v. LiMauro, 65 N.Y.2d 369 (1985), the Court of Appeals distilled the rule as follows: (1) an insurance policy that purports to be excess coverage but contemplates contribution with other excess policies or does not by the language negate that possibility must contribute ratably with a similar policy; and (2) a policy must be exhausted before payment by another policy that expressly negates contribution with other policies or otherwise manifests 8

9 that it is intended to be excess over other excess policies. Indicative of such intent, though not conclusive, is a policy issued as umbrella or catastrophe coverage at rates that reflect the reduced risk insured. IV. Multiple Insurance Policies Covering the Same Risk Fire Insurance Insurance Law 3404 requires that fire insurance policies issued in New York State contain the following pro rata clause: This company shall not be liable for a greater proportion of any loss than the amount hereby insured shall bear to the whole insurance covering the property against the peril involved, whether collectible or not. In order for the pro rata clause to apply, there must be two or more policies written in the name of the same insured covering the same property. Lowell Manuf. Co. v. Safeguard Fire Ins. Co., 88 N.Y. 591 (1882). In the absence of agreement between insurers, payment by one insurer beyond its pro rata share is voluntary and cannot be recovered from another insurer covering the same risk. Associated Mut. Ins. Co. v. Firemen s Fund Co., 81 A.D.2d 949 (3d Dept. 1981), aff d, 56 N.Y.2d 676 (1982). V. Excess Insurance Excess insurance is a low-cost method of providing extended protection where primary insurance leaves off. Excess insurance polic ies do not contribute to a loss until the limits of the underlying primary policy have been paid. An excess carrier is not required to drop down and assume the responsibility of a primary carrier who has become insolvent when the language of the excess policy in that regard is clear and unambiguous. Steyr-Daimler-Puch A.G. et al v. Allstate Ins. Co., 151 A.D.2d 942 (3d Dept. 1989). In Pergament Distributors, Inc. v. Old Republic Ins. Co., 128 A.D.2d 760 (2d Dept. 1987), the insured bought primary general insurance from Ambassador Insurance Company. It provided liability coverage of $1,000,000. To supplement this coverage, the plaintiff bought an ex- 9

10 cess policy from Old Republic Insurance Company, which provided coverage of $10,000,000 per occurrence. Ambassador was declared judicially insolvent. The insured then settled two personal injury lawsuits within Ambassador s limits. With Ambassador s coverage unavailable due to its insolvency, the insured sued Old Republic, claiming that its excess policy dropped down to provide primary coverage. Old Republic s policy read as follows: Limit of Liability The Company hereon shall only be liable for the ultimate net loss in excess of either: (a) the limits of the underlying insurance as set out in the attached schedule in respect of each occurrence covered by said underlying insurances [$1,000,000], or (b) the amount as set out in Item 2c of the Declarations [$10,000] in respect of each occurrence not covered by said underlying insurances. The insured asserted that the phrases covered and not covered refer to actual payments made by the primary carrier (zero in this case). The court disagreed, holding that the phrases refer to whether the policy insures against a certain risk, not whether the insured can collect on an underlying policy. The insured could not recover against Old Republic. In Ambassador Associates v. Corcoran, 143 Misc.2d 706, 168 A.D.2d 281 (1st Dept. 1990), aff d for reasons stated below, 79 N.Y.2d 871 (1992), Ambassador Associates maintained a $1,000,000 general liability policy with Public Service Mutual Insurance Company; a $10,000,000 umbrella policy with Mission Insurance Company; and a $15,000,000 excess policy with Home Insurance Company. A claim for $25,000,000 was brought against Ambassador. Mission Insurance Company became insolvent. Ambassador brought a declaratory judgment action declaring that Home Insurance was required to drop down the limits of its excess policy to fill the void created by Mission s insolvency. 10

11 In its policy, Home Insurance agreed to pay the Ultimate Net Loss in excess of the Underlying Insurance. The phrase ultimate net loss was defined as the amount payable in settlement of the liability of the insured after making deductions for all recoveries and for other valid and collectible insurance, excepting the underlying policy. The phrase other valid and collectible insurance referred to other insurance, such as other excess insurance in the same layer of coverage. It does not, however, refer to the underlying insurance. Therefore, Mission s coverage would remain part of the calculation of ultimate net loss. Home Insurance s coverage did not drop down. VI. General Liability and Employer s Liability Coverage In the construction industry, contractors commonly buy general liability insurance and employer s liability insurance. A general liability policy will protect an employer against claims for contractual indemnification. An employer s liability policy will protect the employer against common law claims, such as for common law indemnification and contribution. They are co-insurers of the insured, but the insurance should not be considered concurrent, since the risks insured are different. [The distinction continues to be muddled by courts: See, North River Ins. Co. v. United National Ins. Co., 172 A.D.2d 46 (1st Dept. 1991), rev d, 81 N.Y.2d 812 (1993); B.K. General Contractors, Inc. v. Michigan Mut. Ins. Co., 204 A.D.2d 584 (2d Dept. 1994).] Although an injured employee cannot sue his employer, he may be able to sue another entity under a statutory or common law duty to prevent harm to employees. For example, Labor Law 240 and 241 impose duties on owners and general contractors to provide safe work sites. If sued, owners or general contractors have a limited right to bring a third-party action against the employer on theories of contractual indemnification, common law or implied indemnification, and common law contribution. 11

12 Employers may be simultaneously liable under both contractual and common law claims. Where an insured s liability exists on one theory as well as another and the theories fall within coverage, the insured may avail itself of the coverage available for each theory. Where two coverages exist, and coverage limitations are not implicated, each insurance company is equally responsible for indemnifying its insured. Therefore, the general liability carrier and the employer s liability carrier will equally share the liability. Hawthorne v. South Bronx Community Corp., 78 N.Y.2d 433 (1991). VII. Allocation of Coverage In a typical tort action, a discrete occurrence triggers insurance coverage. In unique situations, such as toxic tort actions, for example, a continuous occurrence may span more than one policy period. In that case, coverages of successive policies may be triggered. Allocation of coverage is the process whereby the liability of each successive insurer is determined. See, Uniroyal, Inc. v. Home Ins. Co., 707 F.Supp (E.D.N.Y. 1988). The court in Uniroyal used a method of proportional allocation based on the injury-in-fact triggering doctrine set forth in American Home Products v. Liberty Mutual Ins. Co., 748 F.2d 760 (2d Cir. 1984). That is, a policy is triggered if it is in effect when a claimant suffers some injury, regardless of the time of exposure or when the injury manifests itself. The court calculated losses attributable to injuries triggering each policy and applied the per occurrence deductible and aggregate limit once to each occurrence under each policy. Each insurer s share of the liability was calculated by multiplying the judgment or settlement by a fraction that has as its denominator the entire number of years of the claimant s injury, and as its numerator the number of years within that period when the policy was in effect. If during that period the insured is without insurance coverage the insured would be responsible for the pro rata share attributable to such period. That is, for uninsured periods the insured would be treated as if it had issued itself an insurance policy and would be required to con- 12

13 tribute accordingly. This is the proration-to-the-insured approach. Stonewall Ins. Co. v. Asbestos Claims Management Corp., 73 F.3d 1178 (2d Cir. 1995). VIII. Apportionment of Defense Costs In Federal Ins. Co. v. Atlantic Ins. Co., 25 N.Y.2d 71 (1969), other insurance clauses of two policies canceled each other and each policy contributed toward indemnification on a pro rata basis. Similarly, defense costs were to be shared on a pro rata basis. The court in Avondale Ind., Inc. v. Travelers Indemnity Co., 774 F.Supp (S.D.N.Y. 1991), citing Federal Insurance, held that an insurer s contribution to the cost of defense in an underlying action is determined on a pro rata basis according to the policy limits at issue. The court had already determined that the general rule of pro rata contribution would apply to payment of indemnification. Defense costs, therefore, would be paid in the same manner. In 1993, the New York State Court of Appeals decided Continental Cas. Co. v. Rapid-American Corp., 80 N.Y.2d 640 (1993), in which it held that when more than one policy is triggered by a claim, pro rata sharing of defense costs In Federal Ins. Co. v. Cablevision Systems Development Co., 836 F.2d 54 (2d Cir. 1987), policies of the three insurance companies contained identical other insurance clauses that provided for contribution by equal shares. The court ordered defense costs to be apportioned equally between insurers. See also, J..P. Realty Trust v. Public Service Mut. Ins. Co., 102 A.D.2d 68 (1st Dept. 1984), aff d, 64 N.Y.2d 945 (1985); State of New York v. Blank, 27 F.3d 783 (2d Cir. 1994); U.S.F.&G. v. Executive Ins. Co., 893 F.2d 517 (2d Cir. 1990). It appears then that attorney s fees will be apportioned in the same manner as coverage is apportioned. 13

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