ALLSTATE INSURANCE COMPANY, AN ILLINOIS INSURANCE CORPORATION DOING BUSINESS IN FLORIDA, APPELLANT,
v.
AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA, A PENNSYLVANIA INSURANCE CORPORATION DOING BUSINESS IN FLORIDA, APPELLEE
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Allstate Insurance Company appealed a declaratory judgment determining that its automobile liability policy was primary insurance for a tractor-trailer accident, while American Casualty Company's policy was excess insurance. The court affirmed, holding that the insurer with a pro rata clause is primary while the insurer with an excess clause is excess.
Allstate is the primary insurer with a duty to defend and pay damages up to its policy limits, while American is the excess insurer with no duty to defend or pay judgments until Allstate's limits are exhausted. The insurer with a pro rata clause is primary, and the insurer with an excess clause is excess.
“The issue is whether Allstate or American is primary insurance and the other excess insurance, or whether they share proportionately?”
States the central legal issue in the declaratory judgment action
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Join FLexlaw to unlock all legal intelligenceRitter owned a tractor and leased it to Green Bros., which owned a trailer. Allstate issued a liability policy to Ritter covering the tractor with 250…
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Allstate Insurance Company filed a complaint for declaratory decree in which a determination of the respective rights and obligations of Allstate and American Casualty Company of Reading, Pennsylvania, was sought relating to their respective insurance policies affording liability coverage to an owner-lessor, employer-lessee and driver of a tractor-trailer unit involved in an accident. The trial court issued its final decree on rehearing vacating a prior decree and holding Allstate primarily liable under its contract of insurance.
In its decree the lower court found, inter alia, the following:
“The following facts are undisputed and established in the record by either the pleadings, a stipulation entered into by counsel before the Court, or by testimony, and are the material facts involved: (a) Ritter owned the tractor, (b) Allstate is*588sued an automobile liability policy to Rit-ter. (c) Green Bros, owned a trailer attached to a tractor, (d) American issued an automobile liability policy to Green Bros, (e) Diehl, the employee of Green Bros., operated the motor vehicle (the tractor-trailer combination) with knowledge and consent of employer, Green Bros, (f) Ritter leased the tractor to Green Bros, (g) The rental contract between Ritter and Green Bros, provided for insurance coverage to be afforded both lessor and lessee by Ritter, (h) Rit-ter was in the business of leasing motor vehicles, including tractors and trailers, (i) Green Bros, was not in the business of transporting property for anyone other than itself, (j) The Allstate coverage was 250/500/100. (k) The American coverage was 100/300/25. (V) Allstate and American agreed that the settlement they entered into was without prejudice to their respective rights, (m) The Allstate policy covered the tractor, and the American policy covered the trailer.
“The issue is whether Allstate or American is primary insurance and the other excess insurance, or whether they share proportionately?
“The Court further finds as follows: (a) That Ritter is responsible to third parties under the Dangerous Instrumentality Doctrine as owner of the involved motor vehicle, (b) That Green Bros, is responsible to third parties under the Re-spondeat Superior Doctrine as employer of the operator of the motor vehicle, (c) That Diehl is responsible to third parties for his active negligence as operator of the motor vehicle, (d) That both policies afford coverage to Diehl in accord with both of the provisions thereof and the Florida Responsibility Law.”
After making its findings of fact, the lower court determined that the general rule appears to be that the insurance with the pro rata clause [Allstate] is primary insurance, and that with the excess clause [American] is excess insurance. It was therefore adjudged that Allstate is primarily liable and has a duty to defend the actions against the insureds or pay any damages therein rendered; and, that American Casualty is only secondarily liable and has no duty to defend the actions or pay any judgments therein rendered up to the limits of the policy of Allstate.
No error has been demonstrated in the trial court’s construction of the insurance policies under consideration and the determination of the obligations of the parties thereunder. Bordettsky v. Hertz Corporation, Fla.App.1965, 171 So.2d 174; Morse Auto Rentals, Inc. v. Lewis, Fla.App.1964, 161 So.2d 235; Annotations, 76 A.L.R.2d 502.
Therefore, the decree appealed is affirmed.
Affirmed.
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Demshar v. AAACon Auto Transp., Inc., 337 So. 2d 963 (Fla. 1976)…or limit liability, if one of the policies contains a ‘pro rata’ clause and the other contains an ‘excess insurance’ clause, effect is given to the latter clause. Allstate Insurance Company v. American Casualty Company of Reading, Pa., Fla.App.1967, 200 So. 2d 587; 8 Appleman, Insurance Law and Practice, § 4914 (1962); 18A Fla.Jur., Insurance, § 941; Annot., 76 A.L.R.2d 502 (1961). In this case and on these facts, the policy of appellee, Liberty Mutual Fire Insurance Company, provided primary coverage and the…
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The Hartford Accident & Indem. Co., Inc. v. Liberty Mut. Ins. Co., Inc., 277 So. 2d 775 (Fla. 1973)…, we have for review a decision of the District Court of Appeal, Fourth District (260 So. 2d 895), which allegedly conflicts with a decision of the District Court of Appeal, Third District (Allstate Ins. Co. v. American Casualty Co. of Reading, Pa., 200 So. 2d 587 (Fla.App.3d, 1967)), on the same point of law. We have examined the cases and determined that we have jurisdiction pursuant to Fla.Const., art. V, § 3(b)(3), F.S. A. The facts of the case are that Ryder Truck Rental, Inc., owned a tractor which was…
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Liberty Mut. Ins. Co. v. Sentry Ins. Co., 288 So. 2d 556 (Fla. 2d DCA 1974)…s not a party to the lease. Moreover, Ryder lived up to its agreement by obtaining the insurance, and its carrier (Liberty) is not denying coverage. It should be noted that in Allstate Ins. Co. v. American Casualty Co. of Reading, Pa., Fla.App.1967, 200 So. 2d 587, the fact that the tractor lease required the tractor owner to obtain liability insurance for the benefit of the owner and the lessee of the tractor did not dissuade the court from holding that the driver had coverage under both the policy issued to…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ashville v. Super Concrete, Inc., 161 So. 2d 235 (Fla. 2d DCA 1964)
- Eli Bordettsky v. The HERTZ Corp., 171 So. 2d 174 (Fla. 2d DCA 1965)