A patient brought claims of malpractice against her dentist for acts that allegedly took place over a two year period. One insurer provided professional liability coverage for the dentist during the first year in the amount of $100,000. Upon its expiration, coverage was provided by another insurer in the amount of $1 million that was in force during the balance of the period in which the alleged malpractice occurred.

A $262,500 settlement was reached toward which the first insurer contributed $100,000, its policy limit. The second insurer paid the balance of $162,500. The two insurers stipulated that the patient's claim "....would be a covered claim under each insurance company's policy." Continuous acts of malpractice produced a single injury that triggered the coverage of both policies.

Insurer #1 sued #2 for subrogation and reimbursement, based on the "other insurance" clause in its policy, having indicated at the time of settlement that it would seek recovery. The trial court granted summary judgment in its favor. The court determined that it was responsible for one-eleventh of the settlement ($100,000 divided by $1,100,000) and entitled to reimbursement of $76,136.36. It was noted that the policy of the second insurer contained an "other insurance" provision with similar effect.

Insurer #2 appealed the judgment, arguing that "other insurance" clauses apply "....only when more than one insurance policy provides concurrent coverage."

The appeal court said: "Regardless of the usual coverage provided by the two successive insurance policies, the parties' stipulation indicates that the insurance coverage of (the claim) is concurrent....We conclude that the plain language of each policy's 'other insurance' clause renders those clauses applicable to this cause for apportionment purposes."

The judgment of the trial court was affirmed in favor of the first insurer and against the second. The former was entitled to the reimbursement that it claimed.

(CNA LLOYDS OF TEXAS, Appellant v. ST. PAUL INSURANCE COMPANY, Appellee. Texas Court of Appeals, Third District. No. 03-94-00355- cv. June 21, 1995. CCH 1995 Fire and Casualty Cases, Paragraph 5367.)